STATE OF MAINE UNIFIED CRIMINAL DOCKET AROOSTOOK, ss DOCKET NO. CR 2020-40430
STATE OF MAINE ) ) VS. ) ) ORDER ON STATE'S MOTION ) TO PERMIT CHILD TO TESTIFY ANDREW BLOOD ) OUTSIDE THE PRESENCE OF ) THE DEFENDANT
Defendant is charged with Gross Sexual Assault, Class A. Before the Court is the
State's Motion to permit the child to testify at trial via 2-way closed circuit television or
other audiovisual electronic means from the "Aroostook & Downeast Children's
Advocacy Center" located in Fort Fairfield, Maine. The Defendant objects to the child
testifying in any manner other than at trial from the witness stand in the normal course
and method. The court conducted a hearing on the motion on March 23, 2022. The court
received testimony from Stacey Frost, LCSW, and Edward Buckley. The court also
received a copy of the Child Advocacy Center interview of the child as Defendant's
Exhibit 1, without objection. Based on the evidence presented, the court finds and orders
as follows:
Effective in October of 2021, the Maine Legislature enacted 15 M.R.S. §1321, which
provides in pertinent part:
"§1321. Child witnesses in certain sex crime cases
1. Testimony of a child outside the presence of the defendant. Upon motion by the State prior to trial and with reasonable notice to the defendant, a court may allow a child who is 14 years of age or younger to testify outside the presence of the defendant pursuant to this section in a criminal proceeding concerning a crime under Title 17-A, chapter 11 or 12 in which the child is the alleged victim.
2. Requirements for direct testimony outside the presence of the defendant. Direct testimony of a child outside the presence of the defendant under subsection 1 must meet the following requirements:
A. The testimony must be conducted by way of 2-way closed-circuit television or other audiovisual electronic means;
B. The testimony must occur at a recognized children's advocacy center with only a victim or witness advocate present in the room in which the child is testifying;
C. The opportunity for real-time cross-examination of the child must be provided to the defendant's attorney after the child's direct testimony; and
D. The defendant must be able to observe the testimony of the child while the child is testifying and must be able to communicate with the defendant's attorney while the child is testifying."
The parties were unable to direct the court to any caselaw related to this new
statutory provision. The court was unable to find any such caselaw, but notes that there
is a federal provision related to child testimony that does have a body of caselaw that has
developed regarding child witness participation by alternatives to live in-court
testimony. See, 18 U.S.C. §3509(b).
The law affords the court discretion to permit remote testimony. 15 M.R.S.
§1321(1)("may allow"). Some record must be developed to establish the basis for the
court's decision in this matter, as the motion is contested. In addition, the court must be
mindful of the constitutional protections that ensure that a defendant has the opportunity
"physically to face" the any witnesses called to testify against him or her. United States
v. Cotto-Flores, 970 F.3d 17,37-38(1,t Cir. 2020)(quoting, Coy v. Iowa, 487 U.S. 1012, 1017 (1988). "The idea is that insisting that witnesses testify 'in the presence of the person
[they] accuse' helps ferret out the truth and lowers the risk of wrongful conviction." Id.
See also, Comment, 96 Cal. L. Rev., at 1120-1122 ("During private law-enforcement
questioning, police officers or prosecutors can exert pressure on the witness without a
high risk of being discovered. Courtroom questioning, in contrast, is public and
performed in front of the jury, judge and defendant. Pressure is therefore harder to exert
in court 11 )."
Even so, this constitutional right is not absolute. The Supreme Court held in
Man;land v. Craig, 497 U.S. 836, 857, 111 L. Ed. 2d 666, 110 S. Ct. 3157 (1990), that a State
may allow child witnesses in abuse cases to testify outside the presence of the
defendant if "necessary to protect a child witness from trauma that would be caused by
testifying in the physical presence of the defendant, at least where such trauma would
impair the child's ability to communicate ..." Id., at 7-8. "The requisite finding of
necessity must of course be a case-specific one." Id., at 855, 110 S. Ct. 3157, 111 L. Ed. 2d
666.
This court did not hear from the child. There has been no discussion with the child
about testifying, in any format or at any location. What has been presented is speculation
as to what the child's reaction might be to seeing the Defendant while testifying. In
contrast to the federal court decisions that involved an approval of remote participation
of child witnesses, there is no evidence in this matter about a fear of being in the same
room as the Defendant or an inability to testify, as opposed to a reluctance to testify,
which is not uncommon. See, United States v. Farley, 992 F.2d 1122, 36 Fed. R. Evid. Serv. (CBC) 1304, 1993 U.S. App. LEXIS 10293 (10th Cir. 1993)(Child victim of aggravated
sexual assault was properly allowed to testify via closed circuit where court found, based
on testimony of psychologist who examined victim, that victim would be unable to testifiJ
because of fear and would likely suffer trauma if she did testify)(Emphasis added);
United States v. Carrier, 9 F.3d 867, 39 Fed. R. Evid. Serv. (CBC) 1138, 1993 U.S. App. LEXIS
28610 (10th Cir. 1993), cert. denied, 511 U.S. 1044, 114 S. Ct. 1571, 128 L. Ed. 2d 215, 1994
U.S. LEXIS 3076 (1994)(Testimony provided that the presence of defendant in courtroom
was children's primary source of fear and that his presence would cause them severe
distress and make them unable to testify accurately. The opinions were based the
children's frequent nightmares concerning testifying in his presence, and the counselor's
knowledge of their Native American tribe's culture, in which glaring or staring at or by
another is considered especially intimidating)(Emphasis added); and United States v.
Rouse, 111 F.3d 561, 46 Fed. R. Evid. Serv. (CBC) 559, 1997 U.S. App. LEXIS 6659 (8th Cir.
1997), cert. denied, 522 U.S. 905, 118 S. Ct. 261, 139 L. Ed. 2d 188, 1997 U.S. LEXIS 5990
(1997), reh'g, en bane, denied, 1997 U.S. App. LEXIS 12821 (8th Cir. May 29, 1997)(Five
year-old was unable to speak when called as witness and stated in chambers that she was
afraid to speak in front of her uncles, six-year-old was found sobbing outside courtroom
and affirmed in chambers that she was crying out of fear of her uncles, nine-year-old
became so fearful before testifying that guardian ad !item would have had to physically
pull her into courtroom, and therapist testified that victims were afraid of
defendants).
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STATE OF MAINE UNIFIED CRIMINAL DOCKET AROOSTOOK, ss DOCKET NO. CR 2020-40430
STATE OF MAINE ) ) VS. ) ) ORDER ON STATE'S MOTION ) TO PERMIT CHILD TO TESTIFY ANDREW BLOOD ) OUTSIDE THE PRESENCE OF ) THE DEFENDANT
Defendant is charged with Gross Sexual Assault, Class A. Before the Court is the
State's Motion to permit the child to testify at trial via 2-way closed circuit television or
other audiovisual electronic means from the "Aroostook & Downeast Children's
Advocacy Center" located in Fort Fairfield, Maine. The Defendant objects to the child
testifying in any manner other than at trial from the witness stand in the normal course
and method. The court conducted a hearing on the motion on March 23, 2022. The court
received testimony from Stacey Frost, LCSW, and Edward Buckley. The court also
received a copy of the Child Advocacy Center interview of the child as Defendant's
Exhibit 1, without objection. Based on the evidence presented, the court finds and orders
as follows:
Effective in October of 2021, the Maine Legislature enacted 15 M.R.S. §1321, which
provides in pertinent part:
"§1321. Child witnesses in certain sex crime cases
1. Testimony of a child outside the presence of the defendant. Upon motion by the State prior to trial and with reasonable notice to the defendant, a court may allow a child who is 14 years of age or younger to testify outside the presence of the defendant pursuant to this section in a criminal proceeding concerning a crime under Title 17-A, chapter 11 or 12 in which the child is the alleged victim.
2. Requirements for direct testimony outside the presence of the defendant. Direct testimony of a child outside the presence of the defendant under subsection 1 must meet the following requirements:
A. The testimony must be conducted by way of 2-way closed-circuit television or other audiovisual electronic means;
B. The testimony must occur at a recognized children's advocacy center with only a victim or witness advocate present in the room in which the child is testifying;
C. The opportunity for real-time cross-examination of the child must be provided to the defendant's attorney after the child's direct testimony; and
D. The defendant must be able to observe the testimony of the child while the child is testifying and must be able to communicate with the defendant's attorney while the child is testifying."
The parties were unable to direct the court to any caselaw related to this new
statutory provision. The court was unable to find any such caselaw, but notes that there
is a federal provision related to child testimony that does have a body of caselaw that has
developed regarding child witness participation by alternatives to live in-court
testimony. See, 18 U.S.C. §3509(b).
The law affords the court discretion to permit remote testimony. 15 M.R.S.
§1321(1)("may allow"). Some record must be developed to establish the basis for the
court's decision in this matter, as the motion is contested. In addition, the court must be
mindful of the constitutional protections that ensure that a defendant has the opportunity
"physically to face" the any witnesses called to testify against him or her. United States
v. Cotto-Flores, 970 F.3d 17,37-38(1,t Cir. 2020)(quoting, Coy v. Iowa, 487 U.S. 1012, 1017 (1988). "The idea is that insisting that witnesses testify 'in the presence of the person
[they] accuse' helps ferret out the truth and lowers the risk of wrongful conviction." Id.
See also, Comment, 96 Cal. L. Rev., at 1120-1122 ("During private law-enforcement
questioning, police officers or prosecutors can exert pressure on the witness without a
high risk of being discovered. Courtroom questioning, in contrast, is public and
performed in front of the jury, judge and defendant. Pressure is therefore harder to exert
in court 11 )."
Even so, this constitutional right is not absolute. The Supreme Court held in
Man;land v. Craig, 497 U.S. 836, 857, 111 L. Ed. 2d 666, 110 S. Ct. 3157 (1990), that a State
may allow child witnesses in abuse cases to testify outside the presence of the
defendant if "necessary to protect a child witness from trauma that would be caused by
testifying in the physical presence of the defendant, at least where such trauma would
impair the child's ability to communicate ..." Id., at 7-8. "The requisite finding of
necessity must of course be a case-specific one." Id., at 855, 110 S. Ct. 3157, 111 L. Ed. 2d
666.
This court did not hear from the child. There has been no discussion with the child
about testifying, in any format or at any location. What has been presented is speculation
as to what the child's reaction might be to seeing the Defendant while testifying. In
contrast to the federal court decisions that involved an approval of remote participation
of child witnesses, there is no evidence in this matter about a fear of being in the same
room as the Defendant or an inability to testify, as opposed to a reluctance to testify,
which is not uncommon. See, United States v. Farley, 992 F.2d 1122, 36 Fed. R. Evid. Serv. (CBC) 1304, 1993 U.S. App. LEXIS 10293 (10th Cir. 1993)(Child victim of aggravated
sexual assault was properly allowed to testify via closed circuit where court found, based
on testimony of psychologist who examined victim, that victim would be unable to testifiJ
because of fear and would likely suffer trauma if she did testify)(Emphasis added);
United States v. Carrier, 9 F.3d 867, 39 Fed. R. Evid. Serv. (CBC) 1138, 1993 U.S. App. LEXIS
28610 (10th Cir. 1993), cert. denied, 511 U.S. 1044, 114 S. Ct. 1571, 128 L. Ed. 2d 215, 1994
U.S. LEXIS 3076 (1994)(Testimony provided that the presence of defendant in courtroom
was children's primary source of fear and that his presence would cause them severe
distress and make them unable to testify accurately. The opinions were based the
children's frequent nightmares concerning testifying in his presence, and the counselor's
knowledge of their Native American tribe's culture, in which glaring or staring at or by
another is considered especially intimidating)(Emphasis added); and United States v.
Rouse, 111 F.3d 561, 46 Fed. R. Evid. Serv. (CBC) 559, 1997 U.S. App. LEXIS 6659 (8th Cir.
1997), cert. denied, 522 U.S. 905, 118 S. Ct. 261, 139 L. Ed. 2d 188, 1997 U.S. LEXIS 5990
(1997), reh'g, en bane, denied, 1997 U.S. App. LEXIS 12821 (8th Cir. May 29, 1997)(Five
year-old was unable to speak when called as witness and stated in chambers that she was
afraid to speak in front of her uncles, six-year-old was found sobbing outside courtroom
and affirmed in chambers that she was crying out of fear of her uncles, nine-year-old
became so fearful before testifying that guardian ad !item would have had to physically
pull her into courtroom, and therapist testified that victims were afraid of
defendants). The court finds that the State has failed to produce any credible evidence
that the child would be unable to testify due to fear or anxiety caused by being in the presence of the defendant. See also, United States v. Bordeaux, 400 F.3d 548, 66 Fed. R.
Evid. Serv. (CBC) 837, 2005 U.S. App. LEXIS 3728 (8th Cir. 2005), reh'g denied, reh'g, en
bane, denied, 2005 U.S. App. LEXIS 9866 (8th Cir. May 27, 2005)(Holding, District court
denied defendant his Sixth Amendment right to confront victim, female child, by
allowing her to testify via two-way closed circuit television during defendant's trial on
sexual abuse charges because district court found that victim's fear of defendant was only
one reason why she could not testify in open court; it did not find that victim's fear was
dominant reason).
In addition, the court notes that the interview of the child regarding the alleged
abuse at the Advocacy Center reflected a child that was not in fear of the defendant. The
child did engage in avoidant behaviors but there were no signs apparent on this record
that the child became distraught in discussing the defendant. Further, the child's
grandfather, with whom the child is exceptionally close, testified that the child expressed
excitement about a Christmas gift for the defendant when his name was inadvertently
brought up by the grandfather. This testimony reflected an affirmative lack of fear of the
defendant. See, United States v Moses, 137 F.3d 894, 1998 FED App. 68P, 49 Fed. R. Evid.
Serv. (CBC) 163 (CA6 Mich 1998)(Remote testimony by closed-circuit television violated
defendant's Sixth Amendment rights to confrontation; witness's own testimony
disavowed any fear of defendant).
In light of the foregoing and based upon this record, the State's motion is DENIED.
Dated: April 4, 2022 stice, Superior Court