A recent Supreme Court ruling gave an Osceola County man, who was accused of physically abusing a child and causing injuries, a new trial, ruling his right to confront a witness was violated because two children were allowed to testify outside the courtroom through a closed-circuit television.
Under the Iowa Constitution, someone accused of a crime is guaranteed the right to confront witnesses face-to-face who testify against them at trial, Iowa Supreme Court Associate Justice David May, writing for the majority, stated. The defendant, Derek White was in the courtroom and he could see the children, ages 8 and 2, who were in the judge’s chambers, but they didn’t have to see him while they were testifying.
The court, in 4-3 split decision, overturned White’s convictions of neglect or abuse of a child and child endangerment causing bodily injury, ruling this “one-way” visibility system violated the Iowa Constitution, deeming the procedure wasn’t face-to-face confrontation. The case was sent back to Osceola County District Court for a new trial.
Linn County Attorney Nick Maybanks and Johnson County Attorney Rachel Zimmermann Smith, who both prosecute many child abuse and child sexual abuse cases weigh in on the court’s ruling and how it might impact cases going forward.
Q: As a prosecutor, you have had many child witnesses in sex abuse and physical child abuse cases. Does it make sense in some cases to alter procedures to protect the child?
Maybanks: Yes, absolutely. All children experience some sort of trauma from physical or sexual abuse. Some children react differently than others and with preparation, some children are entirely able to testify in the presence of the abuser. Other children are simply not psychologically able to testify because, in the opinion of a mental health professional, they would be unable to communicate effectively and would experience significant trauma. In those cases, it has been extremely beneficial to have another procedure for presenting their testimony available.
Zimmermann Smith: We have a specific statute, Iowa Code 915.38, that lays out the findings that a court must make in order to use these altered procedures. The statute directs that these altered procedures are to be used only when “necessary to protect the child from trauma.” Courts rely on experts to make these determinations, and defendants have the right and ability to cross exam these experts and present their own experts to make the case that the altered procedures are not necessary.
Q: Chief Justice Susan Christensen, in a dissent, in which Waterman and Mansfield joined, stated she understood how young children might be “terrified” at the prospect of testifying in the same room against White after he beat one of them with a belt. Have you had cases where the child could be retraumatized by going into court?
Maybanks: Yes. If the case proceeds far enough along and testifying at a trial is a reasonable probability, we have to address that with the parent or guardian of the child and often directly with the child. That is when we are first able to assess the level of traumatization the child would experience being compelled to testify in front of the abuser. If it appears the child would simply be unable to testify in the presence of the abuser, that is when we seek an opinion of a medical professional and potentially, alternative forms of presenting their testimony.
Q: Isn’t this one of the most difficult things for the child — to face their abuser, which is many times a parent or relative?
Zimmerman Smith: This is especially true when the abuser or perpetrator is someone that was supposed to be keeping them safe from harm. That breech of trust has a devastating impact on a child. I have handled child sexual abuse cases where the defendant has threatened to harm or kill the victim or their loved ones if they tell. I had a case where the children were exposed to years of domestic violence against their mother.
The children in the household learned what the defendant was capable of when someone doesn’t comply. This fear can make it almost physically impossible for a child to answer questions about that abuse in front of the abuser. They have a trauma response of shutting down and they can’t get the words out. It is in these types of cases where we have requested testimony to be outside the presence of the defendant.
Q: In sex abuse cases involving a child, have you offered a plea to avoid making a child testify in court?
Maybanks: This happens all the time in every jurisdiction, not just ours. When we file a case, we always do it presuming the child will have to testify, if necessary. But these cases have long lives and sometimes things change after a charge is filed. It is an extremely stressful endeavor for a child to have to go through the pretrial and trial process.
I absolutely want to take every case to trial and get the maximum punishment because people who abuse children deserve it, but you have to treat each case individually.
Q: Christensen, also in her dissent, pointed out the procedure used by the court met the previous standard. The children were under oath in front of the judge, prosecutors and defense attorneys in chambers. White and the jury could see and hear the children. But this standard wouldn’t pass the majority’s new requirement?
Maybanks: No. The court was fairly unequivocal that there has to be the ability for the defendant to see a witness and the witness to see the defendant. Chief Justice Christensen believed the oath and other safeguards assured the constitutionality of the process used, the majority took a different viewpoint.
Zimmerman Smith: I think it’s important to point out that the defense often has the opportunity to observe and cross examine child witnesses more than they would an adult witness. In cases with a child, there are competency hearings to determine whether the child is competent to testify.There also are additional hearings to determine whether the court will allow the child to testify remotely.
Q: Did you find this ruling a little confusing? The court said the children could testify at a new trial but didn’t say whether the children had to testify in the courtroom with the defendant or whether there had to be two-way visibility.
Zimmerman Smith: The opinion leaves a lot of questions unanswered; it only says what will NOT meet the face to face standard, not what will.
Q: Do you think this ruling could impact child sex assault cases more than others?
Maybanks: I think that is possible, however, children can be severely traumatized by physical or sexual abuse, or emotional abuse for that matter. In terms of impact, the ruling does not discriminate between types of abuse, a child will be required to testify either in the physical presence or via two-way visibility with the abuser in the future for these cases.
Zimmerman Smith: Yes. These are the cases where abusers have often gone to great lengths to make sure that they have the power in the relationship. They make sure that the victims are afraid to report to anyone what is happening to them. The statute (915.38) protects the victim and the system itself from being manipulated by abusers who would seek to use this power dynamic to their advantage in court.
Comments: (319) 398-8318; trish.mehaffey@thegazette.com
