N.C. App. Holds that Maryland v. Craig Survives Crawford

In a case decided earlier this month, the North Carolina Court of Appeals held that Maryland v. Craig, which allows certain child abuse victims to testify by way of closed-circuit television (CCTV) systems, survives Crawford. Crawford, of course, is the U.S. Supreme Court’s 2004 decision radically revamping confrontation clause analysis. As a general rule, the confrontation clause protects the right to face-to-face confrontation. This is understood to mean that the witness testifies live at trial in a setting in which the defendant and the witness can see and hear each other. In Maryland v. Craig, 497 U.S. 836 (1990), however, the United States Supreme Court carved out an exception to the right to face-to-face confrontation. In Craig, the Court upheld a Maryland statute allowing a judge to receive, through a one-way CCTV system, testimony from an alleged child abuse victim. The Court reaffirmed the importance of face-to-face confrontation of witnesses appearing at trial, but concluded that such confrontation was not an indispensable element of the confrontation right. It held that while “the Confrontation Clause reflects a preference for face-to-face confrontation, . . . that [preference] must occasionally give way to considerations of public policy and the necessities of the case.” Id. at 849 (quotation and citation omitted). It went on to explain that the confrontation right “may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” Id. at 838 (emphasis added). As to the important public policy at issue in the case at hand, the Court stated: “a State’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accusers.” Id. at 854. However, the Court made clear that the State must make a case-specific showing of necessity. Specifically, the trial court must (1) hear evidence and determine whether the procedure is necessary to protect the welfare of the child witness; (2) find that the child would be traumatized by the defendant’s presence; and (3) find that the child’s emotional distress “is more than de minimis.” Id. at 855-56. The Court went on to note that in the case presented, the reliability of the testimony was otherwise assured. Although the law prevented a child witness from seeing the defendant while testifying, it required that (1) the child be competent and under oath; (2) the defendant have full opportunity for contemporaneous cross-examination; and (3) the judge, jury, and defendant are able to view the witness while he or she testified. Id. at 851.

Some questioned whether Craig remained good law after Crawford. After all, Craig involved a balancing of interests and rights: the public policy interest in protecting child victims versus a defendant’s confrontation clause rights. Crawford, however, noted that “[b]y replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design.” Crawford, 541 U.S. at 67-68. Earlier this month North Carolina’s intermediate appellate court addressed the issue, holding that Craig survives Crawford. The case was State v. Jackson and it involved sex offenses allegedly committed against a four-year-old victim C.G. The trial court found C.G. (who was six at the time of trial) competent to testify. Based primarily on expert witness testimony that C.G. would experience trauma by testifying in the defendant’s presence that would affect her ability to communicate with the jury, the trial court authorized C.G. to testify using a CCTV system. Using such a system, C.G. testified that the defendant “put his priva[te] part in [her] mouth” while wiggling his body and “put his finger in [her] private part.” The defendant was found guilty and he appealed, arguing in part that by allowing C.G. to testify using a CCTV system, his confrontation clause rights were violated. The court rejected this argument, deciding instead to “join the weight of authority” and hold that Craig survives Crawford. The court went on to find that C.G.’s testimony complied with both Craig and G.S. 15A-1225.1, the statute allowing for CCTV testimony by child victims.

So where are we? Notwithstanding Jackson, prosecutors still may be taking a risk when they seek to have a child victim testify by way of CCTV in a criminal case. Given the importance of the issue I wouldn’t be surprised if we get a higher court opinion, which of course, might come out differently. Also, it’s important to note that Craig pertained to child victims. A lot of people cite Craig as allowing for remote testimony by other types of witnesses, such as those who are elderly, frail, or inconveniently located. But applying Craig—and Jackson—to those scenarios would extend existing law. And given the massive quantity of post-Crawford litigation, it’s probably safe to assume that such an extension will lead to a court challenge.

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