witness, in which the accused has an opportunity, not
only of testing the recollection and sifting the conscience
of the witness, but of compelling him to stand face to face
with the jury in order that they may look at him, and
judge by his demeanor upon the stand and the manner
in which he gives his testimony whether he is worthy of
belief.” 156 U.S. at 242-43.
The combined effect of the elements of confrontation
— physical presence, oath, cross-examination, and
observation of demeanor by the trier of fact — serves the
purposes of the Confrontation Clause by ensuring that
evidence admitted against an accused is reliable and
subject to rigorous adversarial testing. Maryland v. Craig,
497 U.S. 836 (1990). See also Ohio v. Roberts, 380 U.S.
415, 418 (1980); California v. Green, 399 U.S. 149, 158
(1970).
The face-to-face component of the Confrontation
Clause is not absolute. “Although face-to-face
confrontation forms the core of the values furthered by
the confrontation clause ... it is not the sine qua non of the
confrontation right.” Maryland v. Craig, 497 U.S. at
- If this component was indispensable, it would
“abrogate virtually every hearsay exception, a result long
rejected as unintended and too extreme.” Id. at 837.
For cases discussing child sexual abuse victims
testifying via closed circuit television, as provided for by
N.J.S.A. 2A:84-32.4, see State v. Delgado, 327 N.J. Super.
137 (App. Div. 2000) (reactions of child victim to
testifying in court warranted presentation of her
testimony via closed circuit television); State v. Smith,
158 N.J. 376 (1999) (Confrontation Clause not violated
where child victim of aggravated sexual assault feared
testifying in defendant’s presence and in the courtroom);
State v. Crandall, 120 N.J. 649, 654 (1990) (statute
permitting child victim of sexual assault to testify via
closed circuit television in certain circumstances is
constitutional on its face and as applied); State v.
McCutcheon 234 N.J. Super. 434 (Law Div. 1988)
(finding constitutionality of statute and that evidence
established that child would suffer severe emotional or
mental distress if she was forced to testify in open court);
State v. Sheppard, 197 N.J. Super. 411 (Law Div. 1984)
(use of videotape testimony of child victim would be
permitted because defendant waived his right to
confrontation by threatening to kill the victim if he
testified, thus causing him to be unwilling to testify in
court out of fear). See also State v. Nutter, 258 N.J. Super.
41, 54 (App. Div. 1992) (finding reversible error in
allowing the victim’s children to testify via closed circuit
television).
The party seeking to have minor witness testify
outside defendant’s presence carries the burden of
satisfying statutory criteria by clear and convincing
evidence. State in Interest of B.F., 230 N.J. Super. 153
(App. Div. 1989).Trial courts should conduct a thorough face-to-face
interview with the child and make detailed findings
concerning the child’s objective manifestations of fear,
but there is no constitutional requirement that the court
personally observe the prospective witness at a pretrial
hearing before allowing the child to testify via closed
circuit television. State v. Michaels, 264 N.J. Super. 579
(App. Div. 1993), aff’d 136 N.J. 299 (1994). Expert
testimony is not required to show that a child will suffer
severe emotional or mental distress from testifying in
open court. If a court is unable to make a determination
on its own, it may then appoint an expert to evaluate the
child. Id. at 613-14.For federal cases on the subject of minor sexual assault
victims testifying via closed circuit television, see Craig v.
Maryland, 497 U.S. at 857 (where child witness fears
defendant, closed circuit television testimony does not
violate Confrontation Clause); Idaho v. Wright, 497 U.S.
805 (1990) (admitting hearsay statements into evidence
does not violate Confrontation Clause when statements
have sufficient indicia of reliability); Coy v. Iowa, 487
U.S. 1012 (1988) (any exception to Confrontation
Clause must further important public policy; placement
of screen between defendant and child victim during
testimony violated defendant’s right to confrontation);
Pennsylvania v. Ritchie, 480 U.S. 39 (1987)
(Confrontation Clause does not compel pre-trial
discovery).For discussion of the Confrontation Clause in other
factual contexts, see United States v. Mitchell, 145 F.3d
572, 578-79 (3d Cir. 1998) (anonymous note linking
defendant to robbery getaway vehicle was not admissible
under any hearsay exceptions and violated defendant’s
right to confrontation; error was not harmless); Gov. of
Virgin Islands v. Joseph, 964 F.2d 1380 (3d Cir. 1992) (a
statement admitted as a hearsay exception must have
adequate indicia of trustworthiness to satisfy the
confrontation clause).Defendant’s voluntary failure to appear in court has
been held to waive his right of confrontation. United
States v. Tortora, 464 F.2d 1202 (2 Cir. 1972), cert.
denied 409 U.S. 1063 (1972). In New Jersey, however,
defendant’s absence must be knowing, voluntary, and
unjustified before or after trial has commenced in order