Protecting victims in the courtroom is not a violation of the confrontation clause

The trauma that is inflicted upon sexually abused children by a trusted adult is profound and life altering. Many victims experience debilitating anxiety long after the abuse ends. The state has a compelling interest in encouraging victims to report their abuse so that their assailants can be prosecuted for their crimes. However, for some victims of long term sexual abuse, facing their abuser in court can trigger an overwhelming emotional response.

In all criminal prosecutions, the accused has the constitutional right to confront witnesses against him. The Sixth Amendment's confrontation clause has a long and well-litigated history in the U.S. Supreme Court. It has been interpreted to encompass issues within three broad categories: (1) the admissibility of out of court statements; (2) the defendant's right to conduct cross-examination; and (3) the defendant's right to physically face adverse witnesses. Currently pending before the California Supreme Court in People v. Arredondo (S244166) is the issue of "face-to-face confrontation" encompassed within the third category of cases.

Jason Arron Arredondo was found guilty of 14 sex offenses against his live-in girlfriend's three young daughters and their friend. Arredondo, who had a previous conviction for child molestation, repeatedly molested his girlfriend's daughters over an eight-year period. The oldest victim was only 8 years old when the molestations began and was 16 years old when it finally stopped upon Arredondo's arrest. Arredondo had similarly started molesting her two younger sisters when they were 8 and 11 years old, and their friend when she was 13 years old.

The case against Arredondo went to trial in 2015. At that point, his oldest victim was 18 years old and in the 11th grade of high school. When she was called to the stand to testify she immediately became emotionally distraught. The court took a recess so that she could compose herself. During the recess, the court noted for the record that the witness box had been slightly modified to accommodate the emotionally upset witness. A small computer monitor that was normally located on the witness stand had been somewhat elevated so that it blocked the young witnesses direct view of Arredondo. The witness was wholly visible to the judge and the jury. Arredondo's attorney objected to the witness box modification on the ground that it violated his client's Sixth Amendment right to confront witnesses against him. The judge overruled the objection and the three young victims testified without further incident.

The U.S. Supreme Court held in Maryland v. Craig, 497 U.S. 836 (1990), that a defendant's constitutional right to physically confront his or her accuser face-to-face in the courtroom is not absolute. Alternative procedures may be utilized if necessary to further an important public policy if the testimony given by the victim is also reliable. California has a compelling interest in protecting all crime victims, regardless of age. Article I, section 28 of the California Constitution guarantees that all crime victims shall "be treated with fairness and respect for his or her privacy and dignity, and [shall] be free from intimidation, harassment, and abuse, throughout the criminal or juvenile justice process." Arredondo's victims were very young when he started molesting them. Most of their young lives had been spent being repeatedly sexually assaulted by a trusted adult living with them in their home.

California law recognizes the impact trauma has on crime victims and authorizes exceptions to live in-court testimony for victims of sexual assault who are 15 years old or younger. The same alternative procedure is also available, regardless of age, to victims of spousal rape, victims of traumatic injury caused by a spouse, former spouse, cohabitant or former cohabitant, current or former significant other, or a victim who is the parent of the assailant's child. The fact that California law recognizes the trauma caused to victims of any age who are assaulted by a current or former significant other demonstrates the understanding that trauma resulting from sexual assault does not abruptly stop as the victim reaches adulthood. The long term emotional trauma experienced by some sexual molestation victims can be life-long.

In California, victims have enumerated constitutional rights that must be balanced against the rights of the accused. In 2008, California voters approved Proposition 9, known as the Victims' Bill of Rights Act of 2008: Marsy's Law. Proposition 9 substantially expanded Article I, section 28 of the California Constitution and explicitly states that protecting all victims of crime is "a matter of high public importance." U.S. Supreme Court precedent holds that the accused's right to confrontation does not demand a witness to make eye contact with the defendant as he or she is testifying. In this case, the young witnesses were physically present in the courtroom and were cross-examined under oath while in the direct view of the judge and jury. The slightly elevated computer monitor simply blocked the young witnesses direct view of Arredondo as they testified in an effort to ease their anxiety and had minimal impact on his confrontation rights.

A defendant's right to confront witnesses is to prevent unjust convictions and to preserve the integrity of the fact-finding process. Whether the victim chooses to turn his or her body away from the defendant or a minor modification is made to the witness stand to protect young sexual assault victims from further trauma does little to interfere with the primary objective of the clause. The slightly elevated computer monitor on the witness stand did not amount to a violation of Arredondo's constitutional right to confront his victims. 

Kymberlee C. Stapleton is an associate attorney at the Criminal Justice Legal Foundation, which is a non-profit, public interest law organization dedicated to restoring a balance between the rights of crime victims and the criminally accused.