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10 ABA Juv. & Child Welfare L. Rep. 1 (1991-1992)

handle is hein.journals/chilawpt10 and id is 1 raw text is: -ABA JUVENIL & CHILD WELFARE (Reporter VOL. 10, NO. 1 March 1991 CHILD WELFARE Abuse, Confrontation Transmission Of Child Sexual Abuse Victim's Testimony To Jury Via Closed- Circuit Television Did Not Deprive The Defendant Of His Right To Confrontation Where Defendant and Defense Counsel Were Present In Room From Which Victim Testified, Victim's Face And Upper Body Were Visible To Jury, And Trial Court Found That Closed-Circuit Testimony Would Be In Victim's Best Interest. People v. Schmitt, IlLApp.3d__, 562 N.E.2d 377 (1990). A father was accused of sexually assault- ing his nine-year-old child. Prior to trial, the state filed a motion requesting that the child's testimony be videotaped. This mo- tion was based upon the state's allegation that the child had been traumatized by the abuse and that he was hostile and angry. The trial court denied the motion, holding that the state's videotaping statute was un- constitutional. (This determination was sup- ported by the state supreme court's ruling in the case of People v. Basten, 129 Ill.2d 64, 541 N.E.2d 670 (1989).) As a result, the state moved to have the child's testimony presented via closed-circuit television. Along with the grounds previously asserted, the state argued that it would be in the child's best interest to proceed in this man- ner. The defendant objected on confronta- tion clause grounds, but the trial court allowed the child to testify in the manner re- quested by the state. In reaching this decision, the court expressly opined that the child's best interests would be served by tes- tifying through dosed-circuit television. During the child's testimony, the defendant, his attorney, the prosecutor, the child's mother, and the judge were present and the defendant was not screened from the child's sight. Cross- ex- amination was also allowed. The jury in- stantaneously viewed the child's testimony, and the closed-circuit cameras presented a clear image of the child's face and upper body. The defendant was sub- sequently convicted, and he appealed. The Illinois Court of Appeals affirmed the trial court's evidentiary rulings and the defendant's conviction. Because the defen- dant and his attorney were present in the room while the child testified, his right to face-to-face confrontation had not been vio- lated. The opportunity for full cross-ex- amination of the witness had also been provided to the defendant, and the jury had been allowed to instantaneously view and assess the child's demeanor during his direct and cross-examination. The fact that the jury was not in the same room as the witness and was not allowed to view the witness' entire body did not amount to a constitutional violation. The court also rejected the defendant's contention that a prerequisite to allowing closed-circuit television testimony by a child was a find- ing that this procedure was necessary in order to protect the child. In this case, the trial court had in fact made a finding that the use of the closed-circuit procedure would be in the child's best interest. Further- more, because the defendant was provided with face-to-face confrontation, such recent United States Supreme Court decisions as Coy v. Iowa, 487 U.S. 1012 (1988) and Maryland v. Craig, ____U.S._ , 110 S.Ct. 3157 (1990), were not applicable. Editor's Note: In Matter of Vanidestine, 463 N.W.2d 225 (Mich. App. 1990), the use of two-way closed circuit television to take a six-year-old victim's testimony outside the defendant's presence was af- firmed. The trial court's findings that the child was having nightmares and would have difficulties testifying was held to be a sufficient factual basis to support its finding that the television procedure was nessary to protect the child. Abuse, Disposition Probate Court, Having Assumed Juris- diction Over A Sexually Abused Child, May Enter An Order Of Disposition Which Requires Abusive Parent To Va- cate Family Home And To Pay Support. In Re Macomber, 436 Mick 386, 461 N. W.2d 671 (Mich. 1990). Upon the filing of a petition alleging that a 16-year-old child had been sexually abused by her father, the probate court is- sued a preliminary order requiring the father to vacate the family home and have no contact with the child. The court also ordered that the father pay support for his family. While the father objected to the entry of this pretrial order, the petition was subsequently sustained and the no contact/support order was incorporated into the probate court's dispositional order. The father appealed, and the appel- late court reversed, holding that the probate court lacked authority to enter the order. An appeal was then taken by the local child welfare agency. A majority of the Michigan Supreme Court held that once a probate court had ruled that a particular child came within its jurisdiction, that court was empowered by statute to make such orders effecting adults as in the opinion of the court are necessary for the physical, mental or moral well-being of a particular child. This in- cluded the authority to order a father to have no contact with his child, to vacate the family home, and to provide support to his family, where the circumstances of the case indicated that such an order was necessary to protect the child's well being. The court did, however, agree with one aspect of the appellate court's ruling. Since the probate court's initial order was entered prior to the court's formal assumption of jurisdiction over the child, its pretrial application had been improper. In all other respects, the decision of the appellate court was reversed, and that of the probate court affirmed. HIGHLIGHTS Child Welfare 1 Rights of Children and Families 9 Juvenile Justice 10 Other Cases of Interest 12 Book Review 14 In Litigation 15 American Bar Association

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