United States v. Thompson

EVERETT, Chief Judge

(concurring):

In Coy v. Iowa, 487 U.S. 1012, 1016, 108 S.Ct. 2798, 101 L.Ed.2d 857, 864 (1988), Justice Scalia, writing for the Court, stated:

We have never doubted, therefore, that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.

Accepting that proposition — which seems to conform to the language of the Sixth Amendment — I would see no choice but to agree with the dissent of Senior Judge Lewis in the court below (29 MJ 541, 546-48) and to vote for reversal of appellant’s conviction. Clearly, Thompson was not allowed a “face-to-face meeting” with the two children who testified against him.

However, in Maryland v. Craig, 497 U.S. -, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), the Supreme Court, over a strong dissent by Justice Scalia and three other Justices, has provided new guidance. As I read Craig, a defendant’s right to confront a witness face-to-face must yield under some circumstances to the State’s interest in the welfare of a child-accuser. However, this curtailment of the defendant’s right seems to have been authorized only if literal confrontation will cause such emotional trauma that the child cannot reasonably communicate information to the trier of fact. Moreover, the judge may not allow any alternative to face-to-face confrontation unless he has made a specific inquiry and entered appropriate, case-specific findings based on the evidence before him.1

When I match appellant’s case with Craig, I conclude that here the testimony of the two child-witnesses was properly received. Admittedly, a Maryland statute — which parallels laws enacted in many other states — specifically authorized use of closed circuit television when “testimony by the child victim in the courtroom will result in the child suffering serious emotional distress such that the child cannot reasonably communicate.”2 On the other hand, neither the Uniform Code of Military Justice nor the Manual for Courts-Martial contains any similar grant of authority.3 However, I conclude that, even in the ab*174sence of a statutory provision or a rule of court, a military judge has inherent authority to dispense with face-to-face confrontation of a child-witness who otherwise will suffer emotional distress that will prevent the child from testifying meaningfully.

In Craig, the Supreme Court made clear that the trial judge must inquire carefully to determine whether there is a pressing need to shield a child-witness from a “face-to-face meeting” with the defendant. Here, the military judge heard testimony from an expert, who had been treating the two children over a long period of time; and thereafter he entered relevant findings. Although I would have preferred that the findings be more specifically addressed to the questions with which the majority in Craig was concerned, I believe the findings in this case were adequate to justify curtailment of Thompson’s right to a “face-to-face meeting” with the two children.4

The Government did not seek to utilize closed circuit television, as was done in Craig. In one respect, this benefited appellant, because the children were in the same courtroom with him and they could be observed directly by the factfinder as they testified. On the other hand, the placement of the children when they testified may have tended to suggest that appellant was guilty and that the children were justifiably fearful of him. The trial was by a judge alone; and the judge specifically found that the special seating arrangement during the testimony of the two children would not affect the presumption of innocence to which Thompson was entitled. Under these circumstances, I believe appellant was adequately protected.5

. However, in Craig, the Supreme Court refused to require that the trial court "observe the children’s behavior in the defendant's presence.” 110 S.Ct. 3157, 3171.

. Section 9-102 of the Courts and Judicial Proceedings Article of the Annotated Code of Maryland (1989), quoted in Craig, 110 S.Ct. at 3161 n. 1.

. Several years ago I proposed that the Joint-Service Committee on Military Justice consider the desirability of a Manual provision dealing with this general subject; and I still believe this might be worth pursuing.

. Of course, at the time of the trial, the military judge did not have the benefit of the Craig opinion.

. In a trial by court members, it will be especially important for a military judge to consider the risk that the members may infer guilt because of the location of a child-witness during his testimony. The judge should be careful to preclude such an inference by giving appropriate instructions.