Cole's Law Confronts Constitutional Issues: Expanding the Availability of Closed-Circuit Child Testimony in the Face of the Confrontation Clause
![handle is hein.journals/mcglr37 and id is 306 raw text is: Cole's Law Confronts Constitutional Issues: Expanding the
Availability of Closed-Circuit Child Testimony in the Face
of the Confrontation Clause
Sophia Rowlands
Code Section Affected
Penal Code § 1347 (amended).
SB 138 (Maldonado); 2005 STAT. Ch. 480.
I. INTRODUCTION
An incident in Senator Able Maldonado's district where a four-year-old child
was sexually molested inspired him to introduce Chapter 480, which he calls
Cole's Law.' The child was so traumatized he was unable to testify in front of
his molester, and so the case was never prosecuted.2 While California allows
limited use of shielding procedures to protect a child witness from trauma
when testifying in a criminal proceeding, none of the existing statutes covered
Cole's situation.3 The Senator was motivated to introduce legislation to close a
loophole in the current legal system: Because of the current law, cases go
unprosecuted and these predators walk free.4 However, in closing a loophole,
Cole's Law also reopens a Pandora's box of historical constitutional issues.
II. EXISTING LAW
One of the most familiar laws governing criminal prosecutions in this
country is the right of the accused to face any and all witnesses against him or
her.5 The concept of confrontation traces back to Roman law.6 Indeed, the word
confront likely comes from the Latin words contra (against) and frons
(forehead), strongly suggesting a face-to-face encounter.7 However, the United
1. Ryan Huff, Cole's Law Passes Senate Committee, SAN LuIs OBISPO TRIB. (San Loius Opispo, Cal.),
Mar. 30, 2005, at B 1 (on file with the McGeorge Law Review).
2. Aurelio Rojas, California Bill Would Let Abused Children Testify Through Closed Circuit TV.,
SACRAMENTO BEE, Feb. 3, 2005, at A3.
3. See Lawmaker Wants to Protect Abuse Victims from Open Court Testimony, NEWS 10 LATEST NEWS,
Mar. 29, 2005, www.newsl 0.net/story full l.asp?id=10014 (last visited July 6, 2005) [hereinafter Protect Abuse
Victims] (on file with the McGeorge Law Review) (stating that California has several exceptions to open court
testimony for child witnesses).
4. Rojas, supra note 2 (quoting Senator Abel Maldonado, California State Senate) (internal punctuation
omitted).
5. See generally Crawford v. Washington, 541 U.S. 36, 42-53 (2004) (tracing the history of the
Confrontation Clause).
6. Id. at 43; see also Coy v. Iowa, 487 U.S. 1012, 1015 (1988) (referring to indications that a right of
confrontation existed under Roman law).
7. Coy, 487 U.S. at 1015.
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