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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