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State v. Sheppard

Decided: August 29, 1984.


Haines, A.j.s.c.


[197 NJSuper Page 414] Defendant, George R. Sheppard, has been indicted for sexual assault, engaging in sexual conduct which would impair or debauch the morals of a child and child abuse. The State now moves for permission to present the testimony of the ten-year-old victim, defendant's stepdaughter, through the use of video

equipment. Defendant objects, claiming his right of confrontation, guaranteed by the Sixth Amendment of the United States Constitution and Art. 1, par. 10 of the New Jersey Constitution (1947), will be violated by the procedure. The question has not been addressed in the published opinion of any court in this State.*fn1

The State proposes to place the child, the prosecuting attorney, defense counsel, and a cameraman in a room near the courtroom at the time of trial. The room will be equipped with video and audio systems. The judge, jury, and defendant will be in the courtroom. The child will testify as though sitting in the courtroom, responding to questions from the prosecutor and the defense attorney. Defendant, the judge, the jury, and the public will see and hear her testimony through monitors placed appropriately in the courtroom. Private communication between defendant and his attorney will be available through an audio connection.

A hearing was held, in response to the State's application, at which witnesses for the State testified and were cross-examined. Defendant, who was present, represented by counsel and provided with notice and an opportunity to be heard, did not introduce any evidence.

Robert L. Sadoff, a forensic psychiatrist with substantial credentials relating to trial proceedings as well as medical matters, was the first witness. He interviewed the child victim for the purpose of testifying at the hearing. She revealed frequent incidents of sexual abuse by her stepfather beginning when she was only three or four-years old. She told him she would be able to testify in open court facing the defendant. Her willingness, however, was based upon a misconception. She was afraid of her stepfather, who had threatened to kill her

if she revealed his activities, and therefore wanted to send him to jail for her protection. She believed that he could not be sentenced to jail if she testified through the use of videotape equipment. When advised otherwise, she expressed a preference for a video arrangement.

Doctor Sadoff said the victim had the capacity to testify truthfully. It was his opinion, however, that avoidance of an in-court appearance through the use of video equipment would improve the accuracy of her testimony. He provided reasons: An adult witness, testifying in court, surrounded by the usual court atmosphere, aware of a black-robed judge, a jury, attorneys, members of the public, uniformed attendants, a flag, and religious overtones, is more likely to testify truthfully. The opposite is true of a child, particularly when the setting involves a relative accused by her of sexual abuse. She becomes fearful, guilty, anxious, and traumatized. In most cases, she will have been exposed to both pleasant and abusive associations with the accused. As a consequence, she has ambivalent feelings. Anger against the relative is opposed by feelings of care, not only for him but also for other family members who may be harmed by a conviction. There is guilt as well as satisfaction in the prospect of sending the abuser to prison. These mixed feelings, accompanied by the fear, guilt, and anxiety, mitigate the truth, producing inaccurate testimony. The video arrangement, because it avoids courtroom stress, relieves these feelings, thereby improving the accuracy of the testimony.

In his opinion, the child was well-oriented, with a sound memory and no evidence of psychotic-thought disorder, hallucinations or delusions. She currently receives group and individual counseling. Probable long-range emotional consequences resulting from her in-court testimony would be the continued presence of fear, guilt, and anxiety. The testimonial experience is itself traumatic and likely to be long remembered. Possible long-term effects of her testimony in court would be nightmares, depression, eating, sleeping, and school problems, behavioral

difficulties, including "acting out," and sexual promiscuity. The psychiatric goal in these cases is to provide appropriate treatment of the offender and strong support for the child to the end that the family can be reunited. The prospect of reaching this goal will be much inhibited by face-to-face testimony.

Two attorneys with substantial experience in the prosecution of child abuse cases testified to the difficulties attending the presentation of children's testimony. In most cases, prosecutions are abandoned or result in generous plea agreements, either because the child's emotional condition prevents her from testifying or makes the testimony obviously inaccurate or inadequate. One attorney, who had handled 30 to 40 of these cases for the State, was able to complete a trial in only one. In most, while the child victim was able to provide her with information sufficient to support a prosecution and was sometimes able to appear with difficulty before a grand jury, she could not testify in court face-to-face with the accused and other relatives. The victim either refused to testify or "froze" when she got to court. Children who did testify, e.g., before a grand jury, frequently "forgot" details, changed stories, or presented inconsistent facts. Ultimately, many broke down, cried, ignored questions and eventually refused to answer. Most of the victims involved in these cases were being treated by counsellors who frequently advanced the opinion that their child patients could not survive the trauma attending a courtroom appearance.

The second attorney, a member of a "charge" committee in the prosecutor's office, had reviewed 75 to 80 cases of child abuse. His committee was responsible for double-checking cases which the prosecutor believed would have to be dismissed for various reasons. Nearly 90% of the child abuse cases were dismissed as a result of problems attending the testimony of children, who could not deal with the prospect of facing fathers, stepfathers, relatives, and strangers in a courtroom setting.

He described three child abuse cases which illustrated the problems.

(1) A child was the victim of a stranger's sexual molestation at age 12. The facts did not become known to the prosecutor (often the case) until she was 17. The case was dismissed on the basis of psychiatric advice that the child could not testify without having a total emotional breakdown. The child's approach to emotional survival, typically, had been to forget, forget, forget. Reinforcing her memory of this traumatic event would have been devasting.

(2) A seven-year-old boy was abused by a friend. He was precocious and articulate when speaking to the prosecuting attorney. When presented to the grand jury, the presence of many people made him hesitant, forgetful, and inconsistent. Shortly afterward, for unknown reasons, he and his family moved to Italy and the matter was resolved by a plea agreement.

(3) A father was charged with sexually abusing his daughter. The child found it very difficult to articulate the facts, and refused to discuss them with anyone except the prosecuting attorney. The complaint was therefore dismissed; the necessary facts could not be presented to a grand jury.

The final witness was a video expert. He testified that the video equipment to be used at the trial of this matter would provide instant transmission of images and voices from a remote room to the courtroom, providing more than acceptable clarity. Both video and audio would be taped to preserve the record of the child's testimony. Images could be presented in black and white or color. In the present case, color will be used. Special lighting is not necessary. Although bright lights improve color presentation, they will not be required in this case. Monitors (picture screens with sound capacities) will be connected to the camera and placed in the courtroom. A zoom lens will be available for close-ups of the witness. The witness and both attorneys can be photographed simultaneously without difficulty.

An in-court demonstration was provided by the expert using the video equipment to be employed at trial in a conference room adjoining the courtroom. Two attorneys acted as witness and prosecutor. A monitor with a 25" screen faced the judge. The use of the zoom lens was illustrated. A well-defined picture appeared on the monitor; when the zoom lens was used, facial details were provided with great clarity. The testimony was distinct and easily understood. The color was satisfactory

although no special lighting was used. The video expert testified that audio communication between the defendant and his attorney would be provided through wireless devices or a hard wire connection. Two-way communication from the judge to the conference room could also be provided.

It is the court's conclusion that the planned video arrangement for presenting the testimony of the child victim satisfies constitutional requirements. It will be allowed. That conclusion is supported by the following extended analysis.

A. The Dimensions of the Problem; Trial Effects; Social Responsibility.

According to an extensive article appearing in Newsweek (May 14, 1984), "somewhere between 100,000 and 500,000 American children will be [sexually] molested this year." The same article refers to a study "showing that 19% of all American women and 9% of all men were sexually victimized as children." According to the State's witnesses in this matter, the Burlington County Prosecutor's Office interviews seven to eight children a month in connection with sexual-abuse cases. The Newsweek article discusses the difficulties involved when these cases reach court, pointing to many of the problems mentioned by the State's witnesses. Children and relatives are ashamed and afraid. There is anxiety about the future of the child and the family. In many cases the abuser contributes all or most of their financial support. Counselors who believe that rehabilitation and the consequent preservation of family unity and security are possible, advise against prosecution.

For obvious reasons, only one witness with personal knowledge is available to prove the State's case in almost every child abuse prosecution: the child victim. These victims, as shown by the State's proofs, have been traumatized by their subjection to the abuse. They become so further traumatized by the prospect of testifying in front of their abusers that they cannot speak about the central happenings or can do so only with great

difficulty and doubtful accuracy. The in-court experience may cause further lasting emotional harm. Writers in the field bear this out. Libai, "The Protection of the Child Victim of a Sexual Offense in the Criminal Justice System," 15 Wayne L.Rev. 977 (1969), has this to say:

Psychiatrists have identified components of the legal proceedings that are capable of putting a child victim under prolonged mental stress and endangering his emotional equilibrium: repeated interrogations and cross-examination, facing the accused again, the official atmosphere in court, the acquittal of the accused for want of corroborating evidence to the child's trustworthy testimony, and the conviction of a molester who is the child's parent or relative. [at 984]

The fact is that psychiatrists all over the world repeatedly warn that 'legal proceedings are not geared to protect the victim's emotions and may be exceptionally traumatic.' The studies do not as yet demonstrate a clear causal link between the legal proceedings and the child victim's mental disturbances, but no psychiatric study has attempted to prove, or is likely to attempt to prove in the future, such a causal link. Psychiatrists agree that they cannot isolate the effects of the 'crime trauma' from the ' prior personality damage ' or either of the foregoing from the ' environment reaction trauma ' or the ' legal process trauma.' But psychiatrists do agree that when some victims encounter the law enforcement system, for one reason or another, the child requires special care and treatment. [at 1015]

Libai points to a study comparing a "court sample" of child victims involved in criminal proceedings with a random sample of such victims, which "found that 73% of the court sample had behavior problems and over-disturbances compared with only 57% of the random sample." At 982.

Another article entitled, "Proving Parent-Child Incest," 15 U. of Mich. Journal of Law Reform 131 (Fall 1981), by Ordway, addresses the need to find a better way to present children's testimony in sexual abuse cases because of the human and social costs involved:

Our system of justice manifests a concern with human costs at many levels. The eighth amendment prohibits cruel and unusual punishment, and prisons, despite their problems, attempt to provide for more than mere physical survival. Bankruptcy procedures protect enough of the assets to cover necessaries. Tort law struggles to develop a fair system for compensating victims' loss of

companionship and mental distress. Most pertinent here are the informal procedures and the 'best interest' standards of the juvenile/family courts.

Furthermore, it is as sensible to establish an exception to protect the incest victim from trauma as it is to protect the taxpayer from expenditure and the accused from delay. The only difference between the first and the latter two harms is the value at risk. In light of the fact that money and time have recognizable value only in relation to human needs and values, the cost in harm to a person must be valued at least as highly as money and time. [at 148, n. 78]

New Jersey is sensitive to the needs of juveniles and to their problems. Its system of juvenile courts, culminating in the recent creation of the Family Division of the Superior Court, has always been devoted to the "best interest" of the juvenile. Judicial responsibility in juvenile matters is described in Sorentino v. Family & Children's Soc. of Elizabeth, 72 N.J. 127 (1976), a custody case. The Supreme Court said:

The court cannot evade its responsibility, as parens patriae of all minor children, to preserve them from harm. The possibility of serious psychological harm to the child in this case transcends all other issues. [at 132; citations omitted]

Unfortunately, this all-encompassing concern for the welfare of children has not been directed toward their protection in our courts when they are obliged to testify as victims of abuse.

Testimonial problems are being addressed in other states in various ways. In California, for example, preliminary hearings may be videotaped and the taped testimony presented at a later trial. Cal.Penal Code § 1346 (West 1984). The arrangement, however, does not resolve the problems of fear, anxiety, and trauma affecting the child witness. She is still subjected to a face-to-face confrontation at the preliminary hearing.

Some states permit hearsay testimony, e.g., by a counsellor, to avoid the presentation of a child witness. Videotaping arrangements are authorized in some jurisdictions. Libai, op. cit., supra, recommends the use of a two-way glass enclosure in the courtroom which would permit a child witness to be observed by everyone in the courtroom while she remained unconscious of their presence. Statutory provisions in addition to California which illustrates the varied approaches are as follows:

(1) Arizona

Permits videotaped testimony of a minor witness in the presence of the court, the defendant, defendant's counsel, the prosecuting attorney or plaintiff and plaintiff's counsel for presentation to the jury at a later time as evidence. Ariz.Rev.Stat.Ann. § 12-2312 (1982)

(2) Florida

Upon application to the court on notice to the defendant and proof of a substantial likelihood that a child abuse victim will suffer severe emotional or mental strain if required to testify in open court, her out-of-court testimony may be videotaped for use as evidence. A trial judge must preside at the videotape session and shall rule on all questions as if at trial. (No mention is made of confrontation.) Fla.Stat.Ann. § 918.17 (West 1984)

(3) Montana

Videotaped testimony of a child victim is permissible as evidence even though the victim is not in the courtroom when the videotape is admitted into evidence. The judge, prosecuting attorney, victim, defendant, defendant's attorney, and such other persons as the court deems necessary shall be allowed to attend the videotaped proceedings. Mont.Code Ann. § 46-15-401 (1983)

(4) New Hampshire

In cases where the victim is under 16 years of age, the victim's testimony shall be heard in-camera unless good cause is shown by the defendant. The record of the victim's testimony is not to be sealed and all other testimony and evidence produced during the proceeding shall be public. N.H.Rev.Stat.Ann. § 632-A:8 (1983).

(5) New Mexico

Upon a showing that a child victim may be unable to testify without suffering unreasonable and unnecessary emotional or mental harm, out-of-court videotaping of her testimony is permitted. (No mention of confrontation.) N.M.Stat.Ann. § 30-9-17 (1982).

(6) Colorado

An out-of-court statement made by a child describing any act of sexual contact performed with that child which is otherwise inadmissible as evidence, is admissible in criminal proceedings in which the child is the victim of an unlawful sexual offense. The court must find that the statement is reliable and the child must either testify at the proceeding or be unavailable. Colo.Rev.Stat. § 13-25-129 (1983).

(7) Washington

Same as Colorado's statute except that, when the child is unavailable, there must be other corroborative evidence of the act.

(8) Texas

The "visual and aural" recording of the pretrial statement of a child is admissible at trial if no attorney for either party is present when the statement was made and the child is available to testify. Other conditions are listed. If the statement is admitted into evidence, either party may call the child to testify and the opposing party may cross-examine. Statute also permits testimony of a child by closed-circuit television from a room outside the courtroom. "The

court shall permit the defendant to observe and hear the testimony of the child in person but shall ensure that the child cannot hear or see the defendant." In addition, statute permits a like arrangement for recording the child's testimony before trial and its later showing in court. Tex.Crim.Proc.Code Ann. § 38.071 (Vernon 1983).

Texas appears to be the only state with a complete statutory solution to the confrontation problem. Colorado and Washington offer partial solutions since the admission of a "statement" is obviously much less satisfactory than ...

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