United States v. Anderson

STATES, Appellee, UNITED ANDERSON,

Dudley Technical S. Force,

Sergeant, Air

Appellant. 97-1137.

No.

Crim.App. 31996. No. Appeals

U.S. Court Forces.

the Armed

Argued Dec. 1998. July

Decided

CRAWFORD, J., opinion delivered the Court, COX, C.J., in which GIERKE, J., joined. SULLIVAN, J., filed opinion concurring part and in the EFFRON, J., result. dissenting opin- filed a ion. THAT PRIOR STATEMENTS Ray T. Appellant: Lieutenant Colonel For BERS AS SUB- H. BE

Blank, Douglas CONSIDERED (argued); Colonel COULD Jr. brief). THEY (on WHEN EVIDENCE STANTIVE Kohrt RE- EXPRESS MEET THE DID NOT Manos, Major Karen L. Appellee: For MIL.R.EVID. QUIREMENTS OF An- (argued); Lieutenant Colonel USAFR 801(d)(1)(B) V. and UNITED STATES Major A. Ronald thony P. Dattillo (CMA 1990). MCCASKEY, 30 MJ 188 (on brief); Brenda J. Hollis. Colonel Rodgers against appellant for resolve these issues We opinion Judge delivered CRAWFORD set forth below. the reasons of the Court. I Contrary pleas, appellant was FACTS —ISSUE to his and enlisted panel a of officer victed in person K February In testified knowledge; indecent acts of carnal members investigation. Howev during the Article 321 J; children, communicating a K two er, 7, 1994, requested prosecutor on June threat; assault; battery, and assault and testify either closed- to have both and J 120, 134, and Uni- Articles violation of appellant’s sight. television or out of circuit Justice, Military 10 USC form Code objected parte an ex evalu- The defense respectively. §§ Bessett, psy- a licensed ation Dr. Linda discharge, a dishonorable was sentenced to testify. The girls’ ability to chologist, of the confinement, and reduction to the years’ independent, court-ap- suggested an defense grade. The of Crimi- lowest enlisted Court evaluation with pointed expert conduct this findings and sen- Appeals nal affirmed the or, in the presence at the interview unpublished opinion. grant- We in an tence alternative, taped. be that the interview following issues: ed review requested that defense also THE MILITARY I. WHETHER interview of the judge conduct an in camera PREJUDICIAL JUDGE COMMITTED girl’s independently each emo- girls to assess AL- THE ERROR BY ALLOWING TWO refused tional state. BE- LEGED VICTIMS TO TESTIFY conducting this prevent Dr. Bessett from SCREEN, A IN OF HIND VIOLATION interview, expert to permit the defense be APPELLANT’S CONSTITUTIONAL videotaped. present, or have the interview ACCUS- TO CONFRONT HIS RIGHT ERS, ruling, inter- judge’s THERE NO BASIS Dr. Bessett WHEN WAS After Schofield, Diana a A viewed the with Ms. TO SUPPORT SUCH RULING. abuse, as expert in child sexual government APPELLANT WAS II. WHETHER Dr. Bessett testified concern- an observer. BY PREJUDICED SUBSTANTIALLY testifying ing the effect THE THE OF GOVERN- TESTIMONY upon have the victims. would WITNESS, EXPERT WHICH MENT specific Dr. made recommendations Bessett THE IMPERMISSIBLY BOLSTERED concerning parameters of that THE OF GOVERN- CREDIBILITY request, ruling government on the AP- ACCUSING MENT WITNESSES findings following military judge made the PELLANT, THAT BY CONCLUDING fact: AND GAVE THEY WERE TRUTHFUL A “STAMP OF investigation

THEIR ALLEGATIONS the Article 32 testified at [K] AS WELL very negative experi- SCIENTIFIC LEGITIMACY” it as a and viewed AS IMPERMISSIBLY “PROFILING” confusing and it questions ence. A SEXUAL APPELLANT AS CHILD proceeding. told Dr. very long [K] awas ABUSER. about the trial Bessett that she was scared being in the same room process and about THE MILITARY III. WHETHER believes it the accused. Dr. Bessett as COMMITTED PREJUDICIAL JUDGE for her to psychologically would be difficult THE MEM- BY INSTRUCTING ERROR Justice, Military § 10 USC 1. Uniform Code of accused, may already on the stand court and face the witnesses identify

believes the accused could and members [sic] before testify in pres- accused in court and come into the room. The Accused will be ence, long as she did not have to look at seated at the seat at the Defense Counsel long period anxiety him for a of time. Her away wit- table which is farthest from the very high. pro- level will be Dr. Bessett’s nesses. Cross-examination of the wit- opinion fessional is that could [K] position will be done in nesses such screen, position either or in behind the courtroom that the vision of the wit- where the accused was not in direct line of spirit nesses conforms with the of this sight with her. ruling. The witnesses will be instructed to speak up and to let the Court know when August separately Dr. On Bessett Additionally, need a break. the wit- interviewed and her mother ... [J] [who] reported daughter having night- her nesses will be allowed to have a victim again. them, representative mares stated she was afraid the [J] witness sit next to her, kill having allegedly accused would person will be instructed before- threatened to do so while the abuse give any anything hand not to cues or occurring. opinion, Dr. Bessett’s the witnesses. accused, very is scared of the and [J] Further accommodation was directed so that testify would not be able to if she could see eye the two defense counsel would have A the accused. tour of the court room did tact with each other facilitate communica- her, help overwhelming. and her fear is tion, indicated that psychologically cope She believes could [J] permit there would be latitude to counsel to identifying pic- with accused from communicate as needed. Defense counsel ture, cope identify- but she could not objection procedures renewed his ing person. the accused in Dr. Bessett’s process. denial of due professional opinion testify can [J] is stand, taking Prior to K under limited conditions because her judge gave following instruction concern- Specifically, pref- fear of the accused. ing special measures taken to facilitate erence would be for her to in a testimony: separate room with a trial and de- present fense counsel and she could not court, see, you Members of the ... as can see the accused or court members. Alter- being up a television monitor is set natively, may she believes she be able to there are video cameras in the courtroom. testify behind a screen. I have determined that the courtroom will procedure announced the arranged you be the manner that see it. light findings: that would be used in of his The witness will be seated front of me here, facing you the court members with testify facing away will [K] be allowed to transmitting closed-circuit video camera Accused, directly facing from the the court picture testifying of the child on a will [J] members. be allowed to television monitor so the defense and the facing the Trial Counsel. The closed cir- face, can Accused see her because she will project cuit television camera will their away you. facing be from them towards images posi- to a television which will be you may You are instructed that not draw military judge, tioned for the Defense any against inference or for either side Counsel, Reporter Accused Court upon way ar- And, based the courtroom is way I to see. note the the t.v. is set- [K], ranged during now, see, right up appears I can’t but it I arrange the in this decision to courtroom should be able to see the faces of the manner that I made. You should is one sitting. witnesses from where I’m A the same as up [K] evaluate screen will not be set unless it’s [K] witnesses, all of the other and not take into presence appears to [sic] become neces- arrangement account the of the courtroom sary. positioned along A screen will be [J], evaluating any [sic] the side of the witness box for witnesses way to con occasionally give ‘must in- ence that detailed give you a more I will later the necessi public policy and I credibility a witness. siderations on the struction v. United ”)(quoting Mattox you you of the case’ ties specifically instruct again, 237, 243, States, 15 S.Ct. anything for or 156 U.S. not infer and must cannot (1895)). Normally, my the Confronta upon deci- party based L.Ed. against either pres in this man- the defendant’s arrange requires courtroom tion Clause sion every- accusatory wit Additionally, ability I would instruct see ner. ence to not indicate made. A second Exceptions one in the courtroom nesses. anyone the television way that is behind Clause is aspect of the Confrontation applies This that we have here. screen A third is that are under oath. witnesses parties. spectators as well as right to have the finders has the defendant demeanor of the witnesses. fact evaluate the was made accommodation additional One Fourth, includes the Confrontation Clause approach initially even to K was unable after these witnesses. right to cross-examine the witness stand: Green, 399 U.S. See California However, walk into having observed her While 26 L.Ed.2d 489 members, courtroom, the Ac- face the fundamental, it not absolute. right is I make a spectators, cused and all of the Mississippi, 410 U.S. Chambers unable to even finding of fact that she was (1973)(“Of 1038, 35 L.Ed.2d 297 and had to the witness stand approach course, right to confront and to cross- saying, under leave the courtroom may, appro not absolute and examine is breath, this,” “I words to that can’t do or cases, legit priate to accommodate other bow affect. pro trial imate interests the criminal equipment were The screen and television cess.”). There are various interests repositioned appellant and was asked against the defendant’s must be balanced the room until was seated. leave confrontation, including right of the Govern judge gave defense concedes “strong in effective law en ment’s interest any to draw inferences from instruction not Roberts, 64, forcement,” supra at 100 S.Ct. being procedures used. 2531, compelling “interest the state’s well-being of a physical psychological I DISCUSSION —ISSUE victim,” 852, supra 110 Craig, S.Ct. minor Clause of Sixth Confrontation 3157, interest in accurate and the “societal that, all criminal provides “[i]n Amendment States, factfinding.” Bourjaily v. 483 United enjoy accused shall prosecutions, 171, 182, 2775, 97 L.Ed.2d 144 107 S.Ct. U.S. with the witnesses right ... to be confronted (1987). right. against him.” This is a fundamental Texas, 400, 403, 380 Pointer v. right of confrontation 1065, “There are few 13 L.Ed.2d 923 important public policy when yield to an subjects, perhaps, upon which this Court and reliability testimony at issue is other nearly unani- have more other courts been supra. Maryland Craig, v. assured. wise expressions of belief that mous than their ap television was Craig, closed-circuit and cross-examina- right of confrontation involving a child victim proved in a case require- and fundamental tion is an essential “(1) finding case-specific where: there was fair trial which is this ment for the kind of in the testimony the child 405, country’s goal.” Id. at constitutional to suffer would cause the child the defendant S.Ct. that the child emotional distress such serious (2) communicate; reasonably could not “reflects The Confrontation Clause de be ‘more than impact on the child would confrontation at preference for face-to-face (3) one-way minimis’-, via the child testified Roberts, trial.” v. 448 U.S. Ohio television, judge, enabling the (1980); closed-circuit see also 65 L.Ed.2d 597 S.Ct. the child’s jury, and defendant to observe Maryland Craig, 497 U.S. (4) (1990)(“a testimony; during prefer- demeanor 111 L.Ed.2d 666 subject testify, child was to full cross-examination.” and the defense was able to conduct Longstreath, United States v. full maintaining cross-examination while com- (1996), 856-57, citing supra Craig, amongst 110 munications themselves and with in Longstreath, appellant. S.Ct. 3157. As illustrated any deviations from the common form of circumstances, Under these we hold that reliability confrontation must ensure the committed no error mate-

the evidence. rially prejudicial appellant’s substantial rights; appellant nor improperly denied upheld This Court has various right to face-to-face confrontation. obtaining testimony methods of without face- to-face confrontation between an accused and a child victim. See United States v. II FACTS —ISSUE Williams, (CMA 1993)(child 37 MJ 289 testi characterizes the fied from a chair in the center of the court government abuse, expert on child sexual room); Thompson, United States v. 31 MJ Schofield, profile Ms. evidence which im- (CMA 1990)(children testified with their permissibly labeled him as a child sexual accused, backs to the facing complains abuser. He also counsel); but see United States Daul impermissibly vouched for the truthfulness (1996)(accused ton, 45 212MJ excluded but credibility Ap- of the two child victims. permitted through to observe the child pellant acknowledges object that he did not television). support closed-circuit To a de allegedly implied right termination to limit the to face-to-face telling the truth or that sexual abuse confrontation, must make Nor, note, had occurred. we did i.e., finding necessity, there is a object qualifications of Ms. Schofield

likelihood that the child will suffer at least or to allegedly evidence from her which moderate emotional and harm if mental re him labeled as a child sexual abuser. quired testify presence. in the accused’s State, D.A.D. (Fla.App. See v. So.2d Ms. Schofield described the elements of 1990). finding question This is a of fact Syndrome Child Abuse Accommodation and which “will not be reversed unless is clear explained pattern that it was a of behavior ly unsupported by erroneous or the record.” explain misleading contradictory used to Longstreath, supra citing United actions child victims of abuse. Trial coun- (10th Carrier, States v. 9 F.3d 870-71 sel then asked her to relate the facts of the Cir.1993). syn- case to the various elements of the appellant, drome. Ms. Schofield noted that military judge’s determination of baby-sitter, an as adult and “did have the necessity in supported by the instant case is power and he did have the access and did expert opinion the record. Dr. pro Bessett’s threaten, allegedly or threatened the chil- sound, adequate upon vided a basis which the discussing delayed dren.” In the element of military judge considered whether each of disclosure, that, Ms. Schofield noted when K testify the child victims could and under what [appellant’s] a car that “saw resembled in the circumstances each could communicate. area,” housing “very significant” it was When it became obvious that K could not “scared her.” It is this which stand, even take the witness the appellant claims labeled him as a child'abus- judge upon had a modify clear basis which to attempted credibility er and to vouch for the ruling permit his initial of the child victims. Longstreath, supra behind the screen. See expert testimony Appellant at 373. The mili ques- and the further attacks this line of because, tary judge’s permitted tioning relating own observation thus facts this case her, impact to determine that the on as made known to Ms. Schofield was allegedly telling the two was more than de minimis. the members that the chil- arrangement of televisions and screens dren were victims and should be be- that, parties was such that all could see each child lieved. asserts Ms. because Court, you’re that advised credibility of the Members vouched for Schofield you of the Court deter- a child the members appellant as children and labeled credibility in what abuser, of witnesses and substan- mine the this error was obvious Further, primary expert, No issue was case are. because facts this tial. urges that this was that credibility, appellant can witness or other witness requiring corrective action. prejudicial error of what oc- alleged victim’s account credible, or that is true or

curred victims, or alleged that the expert believes II DISCUSSION —ISSUE alleged expert vic- believes the cases of this It is clear from the tims, encounter oc- or that a sexual [sic] expert jury an “can inform the Court that you To the extent that believed curred. sexually children characteristics abused implied or has testified that Miss Schofield alleged describe characteristics alleged or that she believes victims Birdsall, v. victim States exhibits.” United a crime occurred or that (1998), quoting States 47 MJ United credible, you may not are consider victims (8th Cir.1993). Whitted, v. 11 F.3d or as evidence that crime occurred qualified expert also A can “summarize alleged victims credible. that the are express opinion medical evidence and by the assured These actions inconsistent the evidence consistent or not impermissible get evidence did allegations victim’s of sexual abuse.” any perception that expert may express an the members and that Id. But testifying credibility or opinion expert on the “ultimate issue sexual was about expert Nor serve abuse.” Id. can the actual commission of an offense human the court-martial. As lie detector for Ms. Schofield’s adhered erased. Birdsall, supra “testimo permissible we stated limits of Suarez, ny equivalent’ is the ‘functional of an See United States (CMA 1992). expert’s opinion should be victim' believed is inadmissible.” proffered testimony We hold permissible. Regardless, hold that there we opine Ms. did not Schofield plain was no error. were, fact, appel children abused or fact, did, lant commit abuse. See objection no Because there was Birdsall, supra; United States United testimony, appellant may to Ms. Schofield’s (CMA 1990). Harrison, States v. 31 MJ 330 only plain if prevail there was error. Ms. Schofield related elements syndrome and indicated which elements were Plain error is a to be doctrine “is present, given the facts of this case. She solely sparingly, in those used circum- explained why facts had certain she been miscarriage justice stances provided significant the context of would otherwise result.” States v. United syndrome. (CMA Strachan, 362, 1992), 35 MJ 364 Fisher, quoting v. 21 MJ United States Additionally, permit not Ms. Schofield was (CMA 1986), 327, quoting 328-29 United ted assert the children were credible. 152, 14, Frady, v. 456 n. States U.S. 163 Birdsall, supra; See United States v. Mil. n. 608(a), 102 1592 71 L.Ed.2d 816 Courts-Martial, for R.Evid. Manual , (1982). error, (1994 ed.).2 plain appellant “To establish United Ms. Scho States When ‘error’; was must demonstrate: there credibility, into field ventured the area of clear, ‘plain, that such error was or obvi- sustained defense counsel’s ous’; objection, appel- objection. Upon ‘affect[ed]’ and that the error further the mili ” tary rights.’ judge immediately instructed the lant’s ‘substantial United States mem Czekala, (1995), quoting bers as 42 MJ follows: unchanged, provisions 2. All are is otherwise indicated. Manual cited version unless applicable at the trial. time of The 1998 version Olano, circumstances, Finally, States v. United under the as noted 1770, 1777-78, above, L.Ed.2d plain there is no basis invoke the (1993). error doctrine. We hold there was no “materially prejudice^] error that the sub- Hall, United States v. 146-7 rights 59(a), [appellant].” Art. stantial UCMJ, 859(a). § 10 USC Any plain and error herein was not Powell, substantial. United States 49 MJ (1998). Appellant categorized as an FACTS —ISSUE III figure (baby-sitter adult), authority not contends that an as child molester. Such obvious conclu erred when he instructed the members that is sion harmless does not distort and. Kby could consider several statements

fairness of this trial to such an extent that prior and J as consistent statements. application plain error is warranted. instructions, military judge’s part, in relevant were as follows: Similarly, respect any with con You have heard evidence that the witness tention that Ms. vouched for the Schofield prior children, [K] made statements to trial credibility of the is no plain there may her be consistent with objection error. Defense counsel’s was sus trial, specifically, began that the abuse given. tained and instruction was Full 1990; bleeding hap- the Summer timely relief in a was afforded room; pened living put in the Thus, pri- he perceived manner. not part private part; vate in her his threat spot, any potential error corrected play her he would allow prejudice was eradicated. daughter]; [his and she told [her friend] issue, appellant Within this makes doing that he was stuff to too. You her First, two other related assertions. im he have heard [J] evidence that the witness plies qualified that Ms. Schofield was not as prior may made statements to trial that expert. easily disposed claim This of. trial, spe- with her consistent specialized Ms. Schofield had training and neck; cifically, put that he a knife her experience which would assist the trier of he gun; threatened her with a he threat- qualified clearly fact and an expert. her; pillow kill put ened to he over her dire, During Mil.R.Evid. 702. voir face; and he touched her “boob” with his inquired qualifi into Ms. Schofield’s fingernail. you If that such a believe con- affirmatively cations and stated that he had made, you may sistent statement was objections” “no trial counsel’s offer of Ms. tendency sider its to refute the as an Schofield child sexual abuse. charge improper improper influence or Any quali claim Ms. Schofield was not prior motives. You also consider the circumstances, fied was waived. Under the consistent statement as evidence of the obviously plain there is no error. expressed truth of the matters therein. Next, appellant requested claims that When Child trial this instruc- Syndrome Abuse did not a produced Accommodation tion and list of statements which instruction, requirements meet the foundational for the to she wished be included admissibility objected primarily Dau scientific evidence. See defense counsel on the Inc., Pharmaceuticals, 801(d)(1)(B) required bert v. Merrell Dow basis that Mil.R.Evid. 579, 113 S.Ct. 2786, 125 509 U.S. L.Ed.2d 469 the statement “be offered trial (1993). Clearly, military judge did not a rebuttal to rebutted claim recent [sic] fabrication, admitting improper abuse his discretion this testi influence or motive.” First, mony. such evidence is admissible. Defense counsel noted that certain of these Birdsall, See United v. “not in rebuttal to States United statements were offered Suarez, Second, defense, supra. anything,” v. it not States both failure and that was the Government, object brought waives the state- to this defect. United (CMA 1992). Johnson, 17, v. 22 for States 35 MJ ments out the record.

153 their could consider for the members argument these which Appellant’s here is they them. if chose to believe prior truth as were not admitted statements that, by instructing on sistent statements us, then, or is whether question before such, military erred to them as ap- prejudiced instruction otherwise not the prejudice by allowing the mem- appellant’s for the by highlighting the statements pellant as substan- to consider the statements bers just prior to deliberations. members concedes The Government tive evidence. challenge instruc a review We judge’s characterization using of discretion stan an abuse tional error prior as consistent statements the statements Damatta-Olivera, v. 37 States dard. United the instruction incorrect but asserts that was denied, (CMA 1993), 474, cert. 512 MJ 478 could consider the state- that the members 1244, 2760, 129 L.Ed.2d evidence was nonethe- ments as substantive military judge “has substantial A Appeals correct. The of Criminal less Court deciding on the in discretionary power in conclusion, unpub. op. at a similar reached give.” 37 at 478. Based on MJ structions agree. and we case, presented in this we can the evidence his say that abused

not by instructing discretion the members III DISCUSSION —ISSUE these statements. specifi- None of the statements here were young of these victims was prior cally as consistent statements admitted part presented substantial of the evidence a 801(d)(1)(B). pursuant That Mil.R.Evid. as, “He strong ease. Statements such prior statements made to trial applies rule and, part my private part,” put private with the which are consistent witness’s testi- likely gun,” “He me with a threatened mony to rebut an and which are “offered they to stand out in the members’ minds charge against express implied the declar- or highlighted deliberated. The defense itself improper fabrication or influ- ant recent girls by attempting to of these scenario, typical ence or motive.” In prior state- impeach them with their own try impeach a wit- defense counsel would not now be allowed ments. should credibility, would ness’s and the trial counsel strategy because was to retreat from credibility by try to the witness’s rehabilitate unsuccessful. Nor should now introducing prior consistent statement. to fault the for that allowed McCaskey, v. 30 MJ 188 See United States Raya, lack United States v. of success. Cf. (CMA 1990). The issue there would be (1996)(“Invited 45 MJ error does prop- whether out-of-court statement relief.”); provide a States basis United erly admitted. Schnitzer, (1996)(Everett, Gierke, J., concurring in the re- S.J. presented by That not the scenario sult)(“[S]ince to a extent considerable Here, case, strategy, however. the defense defense, invited I conclude error was part, was to show that K’s and J’s testimo- relief.”); entitled to that this accused is not ny not credible and was the result Johnson, F.3d States United coaching part strategy, As of that adults. (7th Cir.1994); Independent A.E. v. School questioned the about defense counsel (10th 472, 476 936 F.2d District No. prior to trial and statements had made Cir.1991). attempted point In out inconsistencies. soliciting up af- actuality, the defense ended addition, at least two state- there were Thus, of their firmations counsel failed ments which defense were, large part, pre- in ultimately in issue in object statements were included but which 1) began in counsel. the abuse sented to the members instruction: “that 2) such, 1990,” [her told Having presented “[K] been the state- the Summer of to doing he stuff her too.”3 already evidence that was friend] ments were substantive proposed objection unclear on the record. Trial to a third state- 3. Defense counsel’s statement, bleeding happened including "The proposed ment the Government somewhat above, Regardless analysis of trial, our with mony re- at specifically, pos- that he gard statements, videos, to these pornographic has sessed and watched challenge, having saw he and his [K] waived his wife Mil.R.Evid. and we sexual intercourse, Powell, and she plain no was his back on find error. See 49 MJ 460. they one having occasion when sexual The decision of the United States Air intercourse. You have heard that evidence Appeals Force Court of Criminal is affirmed. [L] witness made statements [B] that possessed pornographic videos SULLIVAN, Judge (concurring part in and that had Petty [K] seen her and Offi- result): and in the cer engaged in [R] sexual If intercourse. I disagree with the majority’s reasoning in you believe that an inconsistent statement deciding the granted third issue. The third made, you may was consider the inconsis- issue asks: tency in evaluating believability of the testimony Petty of [K] Officer [R] not, however, may L. You consider the III prior statement as evidence of the truth of WHETHER THE MILITARY JUDGE the matters contained in that prior state- COMMITTED PREJUDICIAL ERROR ment. BY INSTRUCTING THE MEMBERS You have heard evidence that the wit- THAT PRIOR STATEMENTS COULD ness prior [K] made statements to trial BE CONSIDERED AS SUBSTANTIVE may that he consistent with her EVIDENCE THEY WHEN DID NOT trial, specifically, began that the abuse MEET THE REQUIRE- EXPRESS 1990; in the bleeding hap- Summer of 801(d)(1)(B) MENTS OF MIL.R.EVID. pened room; in living put pri- he MCCASKEY, AND UNITED STATES V. part vate in private part; her his threat (CMA1990). 30 MJ 188 would play he not allow her to with view, my in instructing error [T]; doing and she told [B] that he was members that pretrial victims’ her stuff to too. You have heard evidence statements could be considered as substan- that the witness prior [J] made statements tive evidence this case was harmless be- may to trial be consistent with her yond any doubt. trial, specifically, put that he neck; a knife to her he threatened her judge gave The trial following instruc- gun; her; with a he threatened to kill he respect tions pretrial evidence of put face; pillow over her and he touched statements alleged victims fingernail. “boob” with his If you case: believe that such a consistent statement Now, you have heard evidence that the made, you may consider it for its prior [K] witness made a statement to trial tendency charge improper refute the may be inconsistent with her testimo- improper influence or may motives. You trial, ny specifically, at this her statement prior also consider the consistent state- told [B] her the doing Accused was ment as evidence the truth the mat- also, stuff to her and she did not see scar expressed ters therein. on the Accused. You have heard evidence added.) (Emphasis Petty the witness Officer made [R] prior Petty statements to trial Prejudice, however, Officer from such substantive instructions, erroneous, [D] be inconsistent with his testi- use even if is hard to room, living my object being and resulted in blood in would to that consistent because objection ap- underwear.” Defense anything.” counsel’s not offered rebuttal to pears only fact, part military judge, to the second part sen- used the first C, regards bleeding happened tence: "In the sentence in his instruction. The Court room, living my Appeals appears resulted in blood in Criminal have considered Regarding underwear. in the objected part blood under- defense counsel to have to that wear, you we would actually ask add to the inconsis- statement used in the instruction. tent list that she told Lieutenant Crescenzi that We will also consider defense counsel to have object no blood was in the underwear.... And we failed to to that statement.

155 right enjoy the all, accused “shall vides that an First of the imagine for several reasons. the witnesses confronted with ... to be alleged testified that victims two Court, Supreme as noted Second, against him.” charged offenses. the committed a this as by majority, has described the admitted were never pretrial statements the for the kind of requirement “fundamental Third, first cross- the defense case. this country’s constitutional this trial which is various fair alleged victims about examined Texas, 400, 405, 85 statements, 380 U.S. goal,” ac- Pointer v. and when details these (1965), 1065, providing witnesses, had 13 L.Ed.2d also S.Ct. knowledged by the confrontation for face-to-face preference “a previously asserted facts them confirm trial,” Roberts, 448 U.S. testimony on the Ohio Finally, the victims’ true. (1980). 2531, In 65 L.Ed.2d no fact not 100 S.Ct. material prior statements added 836, 110 Craig, 497 U.S. S.Ct. Maryland v. in-courtroom their covered (1990), primary 111 L.Ed.2d addition, cross-examined defense In majority, by the Su- upon case relied prior statements alleged victims about ex- very limited recognized preme Court concerning charged inci- they had made ception: dents, hopes contradicting their trial of showing adequate makes [I]f State pretrial their statements. protect- necessity, interest of the state ultimately un- permissible, although This was from the trauma of ing witnesses child successful, impeachment under Mil.R.Evid. ease is suffi- testifying in a child abuse Courts-Martial, 609 and Manual justify use of a ciently important (1994 ed.). See United States United States permits a wit- procedure that child special 1983). (CMA Banker, against at trial ness in such cases use attempt to limit the of defense did not face-to-face in the absence of a defendant of answers the issue their the witnesses’ defendant. with the confrontation credibility. It waited See Mil.R.Evid. 105. and after until after the witnesses testified 855, 110 Id. at 3157. S.Ct. requested during closing the Government finding provided requisite Craig “[t]he be considered that the evidence instructions ease-specific necessity must of course be a of view, my substantively. their belated con- Court, According Supreme one.” case cern under the circumstances product procedure must be the alternative generally United States v. was too late. See (1) that the supports finding: evidence Taylor, 44 MJ 480-81 necessary pro procedure “is alternative particular child wit

tect welfare of the EFFRON, (2) Judge (dissenting): child testify”; ness who seeks traumatized, by “not witness would trial, appellant his was a At the time of presence of generally, but courtroom Sergeant Air Force with Technical (3) defendant”; “the emotional years of The offenses of over 19 service. child witness in the suffered distress appellant was convicted vari- which than presence is more de of the defendant K, involving who ous forms child abuse minimis, i.e., than ‘mere nervousness more trial, J, years time old at the ” testify.’ reluctance to or excitement or some K, years time of trial. who was 9 old at the 855-56, 110 Id. at 3157. abuse, allegations made the of the who first nearly years that “courtroom emphasized until after she did not do so Court itself, trauma,” provide suffi- appellant. testified does had last seen justify allegations. denial of face-to-face own behalf and denied cient basis showing pitted appel- be a case confrontation. There must The heart credibility against of the defendant lant’s “it the trauma.” Id. and J. causes majority opinion, the first As noted in the standard, re- rigorous which Craig sets a the Confrontation granted issue involves Amendment, In the rigorously procedures. fair pro- quires Clause the Sixth case, present military judge failed videotaped. to such interviews be Finally, apply procedural safeguards necessary military judge, counsel asked that the after ensure fair appellant’s consideration of testimony, hearing expert undertake an rights. stitutional in camera interview of the to assess their emotional state and to ascertain the

This is not a in case which the victim was understanding the girls purpose as to the by so traumatized the events that she could of the examinations. not communicate in an proceed- adversarial trial, ing. Prior to K testified at the Article The denied the defense mo- in hearing presence appellant. Thereafter, prosecution’s tions. psychol- There is no indication the record of the ogist parte conducted ex of K interviews and 32 proceeding Article that 39(a) session, subsequent J. At a Article appellant produced type of trauma dis- psychologist described her interviews Craig. contrary, cussed in On the K testified interviews, children. On the basis of those length provided and detailed psychologist recommended that J be al- about the offenses. testify lowed to via closed-circuit television. trial, Prior to prosecution filed written psychologist also that K concluded could “Motion for Alternative Forms of Child Tes- testify in any special court without proce- timony,” in which it asked for an Article dures. 39(a)2 hearing “to determine whether [J] and Subsequently, trial counsel moved that a testify are able to [K] front of the accused screen be installed during courtroom at trial.” The Government indicated that it of K J to block their view expert would offer testimony at the hearing appellant. appellant She also moved that that would be on psychological based inter- not be allowed in the courtroom until views of the ha after children that 1been scheduled instance, yet but not the witness was conducted. seated each required appellant be to leave the court- represented Government it ex- room departed. before each witness pected expert to state that if the children required physical pres- objected Defense proce- counsel to these appellant, ence of undergo each “would seri- dures. He K noted that had testified at distress, ous emotional such that the child length hearing at the Article appel- with communicate;” would be unable to and that that, lant in argued the same room and while such stress be “would more than de mini- might anxiety, she have some she would be mus, result, primarily, would from the “[Sjhe’s before, testify. able done it she physical presence of the accused the court- again.” can do it prosecution that, room.” The moved if such conceding any Without the need for alter- by expert, conclusions were reached both J, respect native format he contended permitted testify by J and K be closed- preferred Supreme method under circuit television or “in such a manner as to Court caselaw was to use closed-circuit tele- eye avoid contact with the accused.” vision, with the witness and in anoth- response Defense counsel filed a written by up er room and hooked audio and video to objected motion. The to an ex courtroom, rather than a screen. parte expert examination prose- ruled that J could testi- argued cution’s selection and that the better fy with a screen but approach would was to have the examination done facing facing away court-appointed members from psycholo- child gist. alternative, without As a screen unless the screen the defense asked necessary.” its permitted “appears own to become attend He ruled any examinations done the Government’s closed-circuit camera television would expert. requested project The defense also to a positioned monitor “which will be 839(a). 1. Uniform Justice, § Code of USC UCMJ, 10 USC Military § 832. to even Counsel, that was unable finding of fact she the military judge, Defense

for the to Reporter see.” and had to approach and Court the witness stand Accused saying, under her courtroom leave the witness, she a K was called as When this,” breath, that or words to “I can’t do sat at the courtroom and into the walked members, the of affect. in front the witness stand participants in the court- and the spectators, basis to ruling provides an insufficient This stand, the how- After she reached

martial. his denying appellant constitutional justify Instead, ever, begin. her did not prosecu- where the right confrontation of provided instruc- detailed expert witness did not recommend tion’s about the television to the members tions screen, a where this behind witness cameras, ensured monitor not a ruling did order such judge’s initial a working, ruled on whether equipment was measure, expert prosecu- was no examina- could sit and where there government table, mem- tion and further instructed by an the witness the court or tion of purpose to the the victim-witness bers as ambiguity to cause of to resolve beside K. advocate who was seated testify. her reluctance to facing while all After the courtroom in a K testified end result was that The undertaken, spoke privately to activity K in a manner modified courtroom environment counsel, requested a and trial trial the members appellant before that identified proceedings reconvened When the recess. feared, person be of the court-martial as 39(a) K on the Article session without person impact on the witness was so whose stand, that K had trial counsel revealed extraordinary traumatizing that measures from the be excluded asked military When when she entered. The warranted the courtroom. courtroom needed, whether a screen was asked are taken without an ade- such measures responded that was an and trial counsel showing necessity, they are uncon- quate option. continued: Trial counsel Craig, supra. stitutional. United States I make it easier point think at this it would responsible years, those for the recent However, if if she had screen. justice system general criminal otherwise, try we’ll at least court dictates justice system particular have be- get way the courtroom is talk the adverse im- increasingly come aware of the up point. at this set society flows pact individuals and military judge, examining without The insensitivity rights from an and needs obtaining or further witness See, e.g., and witnesses. Victim of victims only granted psychologist, from the not Rights Act of Pub.L. No. Clarification request, also—on his own prosecution’s 12; 105-6, per- Rights and Res- expanded original ruling to Stat. Victims’ motion — 101-647, mit from behind a screen. Pub.L. No. titution Act 4820; Department of Directive Defense Stat. ruling military judge’s did not reflect The concerns, Sensitivity to such howev- 1030.1. may teaching Craig that confrontation er, require disregard of the basic finding the child does not denied absent a be traumatized, be “not witness would rights of accused servicemem- constitutional generally, but courtroom bers. defendant,” and that the distress suffered court, testifying partic- prospect of is “more than ‘mere nervousness the child ” the ac- ularly as victim who must face testify.’ or excitement or some reluctance cused, something people most is not 855-56, Craig, 497 Craig, appropri- it is would relish. Under simply noted: particularly a court to be sensitive ate for However, having into observed her walk years. impact on a victim of tender members, courtroom, the Ac- face the accused, however, obligation to face the spectators, I make a and all of the cused is enshrined in our Constitution and procedures follow those in this case created limited under the narrowly defined cir- environment prejudicial the courtroom cumstances set forth in Craig. Failure to rights appellant. substantial

Case Details

Case Name: United States v. Anderson

Court Name: Court of Appeals for the Armed Forces

Date Published: Jul 30, 1999

Citation: 1999 CAAF LEXIS 1051

Docket Number: 97-1137/A

Court Abbreviation: C.A.A.F.