The Confrontation Clause:

Should it apply if the witness is a minor?

by Michael V. Vollono, Esq.


Imagine you are the victim of a sexual assault and must testify in Court against the perpetrator. Everyone in the courtroom is listening to you. The lawyer for the defendant is poised to challenge your version of the events. You are under oath and must state the truth and only the truth. You are relating a very personal and emotional experience. It would be pretty difficult. Now imagine you are eight years old.

All too often, children are the victims of sexual assault and are called upon to testify against the perpetrator of the crime. This is an extremely difficult undertaking for the child. While the law has changed to make it easier on the child, the defendant’s constitutional rights can override the concern for the child.

Many times a judge will order the lawyers to sit while questioning the child and only talk in normal tones. A child may be allowed to hold a stuffed animal for comfort and is not identified by their last name to safeguard their privacy.

One other approach that has not met with as much success is to allow the child’s testimony to be videotaped and then played in Court. This would eliminate the need for the child to describe what happened while in a courtroom surrounded by strangers and with the defendant in the room watching. The child would also avoid being cross-examined by the defendant’s lawyer.

The problem, however, is that the United States Constitution grants a criminal defendant the right to confront and cross-examine his accusers. When courts have been asked to weigh these competing interests, they have consistently ruled in favor of the defendant and required children to appear in court as a live witness. This is much to the distress of those looking out for the child’s best interest. Some would argue that the child is being victimized again by having to appear as a live witness.

Change does come slow in our legal system. However, those who advocate on behalf of children continue their fight and hope that in the future, Courts will give more consideration to the rights of children. The debate is ongoing and if you, as a citizen, are concerned about the rights of children, you should voice your concerns to your elected representatives.

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