THE AFTERMATH OF MARYLAND V. CRAIG: APPLYING IT TO PRACTICE Ashley Nastoff, J.D. NCVLI Annual Crime Victim Law Conference, June 15, 2011
Big Picture Maryland v. Craig: US Supreme Court case Making the required Craig showings Child Victims and Child Witnesses Rights Act Additional Layer: Crawford v. Washington Procedure The Extra Step: Incorporating mental and medical health specialists into victim practice
Background of Maryland v. Craig Maryland v. Craig, 497 U.S. 836 (1990). Specifically dealt with: Child-victim testimony by alternative means in child-sexual abuse case Applicable law: 6 th Amendment Confrontation Clause-US Constitution Coy v. Iowa, 487 U.S. 1012 (1988). Md. Code Ann. Cts. & Jud. Proc. 9-102. Significance: Narrow: Reduce revictimization of child-victims of sexual abuse Broad: Literal face-to-face confrontation not required in all cases
Test 1. Testimony by alternative means necessary to serve an important state interest, and *Court will defer to state s findings 2. Testimony is assuredly reliable.
Primary Framework To demonstrate necessity, must show: 1. Testimony by alternative means is necessary to protect this child-victim in this case, 2. The child-victim is traumatized by the prospect of testifying in front of the defendant specifically, and 3. The child-victim is likely to suffer more than minor emotional distress from the testimony.
1. Testimony by alternative means necessary to protect this child-victim? Court must find that: use of the... procedure is necessary to protect the welfare of the particular child witness who seeks to testify. Craig, 497 U.S. at 855. Generally met by compliance with other two prongs Importance of particular, rather than generalized, evidence
2. Child-victim traumatized by prospect of testifying in front of defendant specifically? Court must find that: the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant. Craig, 497 U.S. at 855. Challenging to establish Fear generally sufficient Expert testimony v. non-expert testimony Federal & state statutes Victim not required to testify
3. Child-victim likely to suffer more than minor emotional distress? No threshold amount of trauma articulated in Craig opinion Reasonable impairment of communication sufficient Examples Trauma, not fear, required Different types
Child Victims & Child Witnesses Rights Act 18 U.S.C. 3509 What it includes When it applies Differences from Maryland v. Craig Three-prong Craig framework v. one statutory reason Expert testimony required Inability to testify due to fear v. due to fear of the defendant
Crawford v. Washington: Not a big hurdle 541 U.S. 36 (2004). Crawford s general applicability: Out-of-court testimonial statements Interaction with Maryland v. Craig Crawford is a trial right Crawford evidence is fundamentally different from testimony by alternative means
Procedural Considerations Making the required Craig showings: Motion for an evidentiary hearing Evidence Expert testimony, family and friends, victim Court must make findings on the record Choosing the alternative means Videotaped deposition v. CCTV (one-way or two-way) Assuring sufficient reliability Jurisdictional considerations Federal State Evidentiary rules
Incorporating mental and medical health specialists into victim practice Significance Avoiding having the child-victim testify Statutory requirements Qualified experts Evidentiary rules Privilege Communication: Asking the right questions
Helpful Resources Maryland v. Craig, 497 U.S. 836 (1990). MD. CODE ANN. CTS. & JUD. PROC. 9-102. Coy v. Iowa, 487 U.S. 1012 (1988). Child Victims and Child Witnesses Rights Act, 18 U.S.C. 3509. Oregon: OR. REV. STAT. 40.460. Closed Circuit Television Witness Examination, 61 A.L.R. 4 th 1155. Illustrative federal cases US v. Carrier, 9 F.3d 867 (10 th Cir. 1993). US v. Bordeaux, 400 F.3 548 (8 th Cir. 2005). US v. Rouse, 111 F.3d 561 (8 th Cir. 1997). US v. Turning Bear, 357 F.3d 730 (8 th Cir. 2004).