U.S. v. Pack, 65 M.J. 381

First Principles: Constitutional Matters: Confrontation

1. the Confrontation Clause of the Sixth Amendment provides, among other things, that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him
2. one-way closed-circuit testimony from a child witness is admissible and consonant with the requirements of the Confrontation Clause when: (1) the court determines that it is necessary to protect the welfare of the particular child witness; (2) the court finds that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant; and (3) the trial court finds that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis
3. although face-to-face confrontation forms the core of the values furthered by the Confrontation Clause, appellate courts have nevertheless recognized that it is not the sine qua non of the confrontation right and rejected a literal reading of the Confrontation Clause in favor of a preference for face-to-face confrontation at trial, a preference that must occasionally give way to considerations of public policy and the necessities of the case
4. the Confrontation Clause requires cross-examination and unavailability before testimonial hearsay can be admitted into evidence
5. the case of Maryland v. Craig, 497 US 836 (1990), continues to control the questions whether, when, and how, remote testimony by a child witness in a criminal trial is constitutional; the case of Crawford v. Washington, 541 US 36 (2004), did not so undermine the reasoning in Craig that an appellate court is free to disregard Craig and hold that anything short of face-to-face confrontation at trial violates the Sixth Amendment
6. appellant was not denied his Sixth Amendment right to confront his accuser when the military judge permitted the child victim to testify from a remote location via a one-way closed-circuit television, where the military judge found that there was a need to protect the child witness, the child would be traumatized by the presence of the accused, and the emotional distress suffered by the child would be more than de minimis

Core Criminal Law Subjects: Witnesses: Confrontation

1. one-way closed-circuit testimony from a child witness in a criminal trial is admissible and consonant with the requirements of the Confrontation Clause when: (1) the court determines that it is necessary to protect the welfare of the particular child witness; (2) the court finds that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant; and (3) the trial court finds that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis
2. the case of Maryland v. Craig, 497 US 836 (1990), continues to control the questions whether, when, and how, remote testimony by a child witness in a criminal trial is constitutional; the case of Crawford v. Washington, 541 US 36 (2004), did not so undermine the reasoning in Craig that an appellate court is free to disregard Craig and hold that anything short of face-to-face confrontation at trial violates the Sixth Amendment
3. appellant was not denied his Sixth Amendment right to confront his accuser when the military judge permitted the child victim to testify from a remote location via a one-way closed-circuit television, where the military judge found that there was a need to protect the child witness, the child would be traumatized by the presence of the accused, and the emotional distress suffered by the child would be more than de minimis

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. the question of what law controls resolution of a claimed constitutional violation is one of law, which an appellate court reviews de novo
2. overruling case law by implication is disfavored