Court: Supreme Court of Kansas; July 14, 1989; Kansas; State Supreme Court
Scott Chisholm was convicted of two counts of aggravated incest, with the Kansas Supreme Court affirming the convictions in 1988. A key issue was whether his Sixth Amendment right to confront his accuser was violated when a child witness testified via closed-circuit television, as permitted by K.S.A. 22-3434. The court ruled it was not a violation. Following a related U.S. Supreme Court decision in Coy v. Iowa, Chisholm appealed, leading to a vacated and remanded decision for reconsideration.
Chisholm was accused of molesting his 8-year-old stepdaughter, whose testimony was recorded on videotape and presented during the preliminary hearing. Due to the stepdaughter's age and expressed fear of Chisholm, the State requested her testimony be taken via closed-circuit television. K.S.A. 22-3434 allows such testimony under specific conditions to protect child victims from the trauma of direct confrontation. The statute grants the court discretion in these matters, requiring the State to justify its request. The State argued that the child’s fear and her coherent videotaped testimony contrasted sharply with her frightened demeanor during courtroom questioning. The district court found the statute's language non-mandatory but indicated the necessity for the State to demonstrate the need for closed-circuit testimony.
The State contended that the stepdaughter's ability to provide coherent testimony at trial while facing Chisholm was unlikely. The trial court, after observing a significant contrast in her demeanor on videotape and in person, permitted her to testify via closed-circuit television to avoid direct confrontation with Chisholm. During the trial, she testified from a special room, unseen by Chisholm, while defense counsel was present to object. The judge communicated with both attorneys through a connected cable, and the judge and jury viewed the testimony on screens. Chisholm conferred privately with his attorney before cross-examination. Ultimately, the jury convicted him of two counts of aggravated incest, resulting in a suspended sentence and four years of intensive probation.
On appeal, Chisholm argued that K.S.A. 22-3434 infringed upon his Sixth Amendment rights by not requiring the trial court to establish that closed-circuit testimony was necessary. He claimed the State's assertion of the stepdaughter's fear was inadequate to justify this procedure. The court dismissed Chisholm's argument, referencing its prior ruling in State v. Johnson, which indicated that the statute allowed full observation of the witness's testimony and demeanor, ensuring that cross-examination was viable. The court acknowledged that while face-to-face confrontation might enhance truthfulness in adults, the legislature recognized that children under 13 might provide more truthful testimony if shielded from the trauma of confronting an imposing adult.
Following Chisholm's case, the U.S. Supreme Court ruled in Coy v. Iowa that a screen separating child witnesses from a defendant violated the Sixth Amendment's right to face-to-face confrontation. The Court emphasized that the defendant's right to directly confront witnesses is fundamental and cannot be overridden without an individualized determination of the need for special protection from trauma. The Iowa statute's general presumption of trauma was insufficient to create a valid exception to this right.
Justice Scalia's opinion indicates that exceptions to the right of face-to-face confrontation exist under Kansas law, specifically referencing K.S.A. 1988 Supp. 60-460. While he does not assert that this right is absolute, he specifies that exceptions for child-victim witnesses are permissible only when necessary to support a significant public policy, requiring individualized assessments of need. Violations of the Confrontation Clause are subject to the harmless error standard established in Chapman v. California, meaning that appellate courts must determine if the error was harmless beyond a reasonable doubt; this issue was remanded to the Iowa Supreme Court.
Justice O'Connor, with Justice White concurring, noted that state legislatures can still legislate protections for child witnesses without infringing on constitutional rights, provided that trial courts make specific findings justifying the denial of face-to-face confrontation. Justice Blackmun, joined by Chief Justice Rehnquist, dissented, arguing that the Iowa statute aimed at protecting child witnesses outweighs the confrontation right and supports the admission of out-of-court statements.
Justice Kennedy did not participate in the decision. The right to confront witnesses, under both Kansas and U.S. Constitutions, includes the accused's right to direct confrontation during testimony. However, this right is not absolute and allows for exceptions to further significant public policy. The Kansas Supreme Court case State v. Eaton reversed a defendant's convictions due to improper use of closed-circuit testimony from a child witness, as the trial court failed to make the necessary findings of necessity. The statute allowing such procedures remains upheld, contingent on individualized determinations as required by Coy, which stipulates that trial judges must establish clear and convincing evidence that forcing a child to testify in open court would cause trauma, inhibiting effective communication with the jury.
A trial court must first determine that a child witness could experience trauma from face-to-face confrontation with a defendant before the State can invoke K.S.A. 22-3434. This statutory provision is supported by public policy aimed at protecting child witnesses from the negative impacts of a courtroom environment, as acknowledged by Justices O'Connor and Blackmun. The legislature enacted two statutes to facilitate this protection: K.S.A. 1988 Supp. 60-460(dd) addresses cases where the child cannot communicate due to trauma, while K.S.A. 22-3434 addresses cases where confrontation could cause psychological harm.
In prior cases like Coy and Eaton, trial courts did not assess the necessary individualized findings regarding trauma, which the U.S. Supreme Court later mandated. Conversely, in Chisholm, the trial court evaluated the trauma faced by the stepdaughter and balanced it against the defendant's rights. The factors considered in determining a witness's "unavailability" under K.S.A. 60-460(dd) include: the probability, degree, duration of psychological injury, and whether this injury significantly exceeds that of an average victim. In Eaton, it was noted that similar considerations are relevant under K.S.A. 22-3434 for allowing child-victims to testify via closed-circuit television.
Ultimately, to permit a child to testify through alternative means, the State must prove that potential psychological harm to the child outweighs the defendant's right to confrontation. The trial judge in the referenced case failed to make the required individualized findings due to lack of awareness of these subsequent requirements.
The trial court determined that the statutory criteria under K.S.A. 22-3434 were met, permitting the child-victim to testify via closed-circuit television. However, the appellate record does not clarify whether sufficient evidence exists for the trial court to individually assess whether the child's trauma outweighs the defendant's confrontation rights. As a result, the case is remanded for the trial judge to review the record and evaluate if the state's interest in protecting child victims justifies an exception to the defendant's confrontation rights. If the trial court can demonstrate adequate individualized findings regarding the psychological harm to the child, the convictions will remain intact. Conversely, if the evidence is insufficient to support the denial of the defendant's right to face-to-face confrontation, the convictions will be vacated, and a new trial will be granted. Judge Herd concurs with the majority but believes the trial court's initial finding regarding the appropriateness of closed-circuit testimony was sufficient under Coy and Eaton. Judge Herd asserts that the trial court respected the defendant's confrontation rights by requiring an individualized hearing and believes the record supports the conclusion that the child's trauma justified the closed-circuit testimony, advocating for affirmation of the convictions.
