Comment by James Stephen O'Brien, Jr.
The sexual abuse of young children, once an anomalous and obscure crime, has increased so dramatically that it is being likened to a national epidemic. It is unclear whether the recent deluge of child molestation cases exactly corresponds to increased molestation or is attributable to the great attention given to it by the media. What is clear, however, is that the sexual abuse of children is much more widespread than previously believed.
The American criminal justice system is ill-equipped to deal with the prosecution of child sexual abuse crimes. Traditional criminal procedures do not protect or aid the victimized child. Because the young child is typically the sole witness to the crime, her testimony is crucial to the prosecution's case. Yet forcing the child to relive publicly the details of the sexual assault may exacerbate the child's psychological trauma and may produce serious and long-lasting behavioral problems. Further, putting the infant victim on the stand may denigrate the reliability of her testimony by subjecting her to cross-examination, where the child may be mentally manipulated by an experienced defense attorney. Beyond this, young children as witnesses have traditionally met with skepticism and disbelief. As national attention increasingly focuses upon the problem, many jurisdictions are devising new means by which to attack the problem.
Louisiana is one of many states implementing a novel approach in child sexual abuse cases. Louisiana, by statute, provides for the child's live (as opposed to prerecorded) testimony to be introduced at trial from a separate room and displayed to the jury on television monitors. The statute's purpose is to shield the child from testifying in open court, thereby preventing “legal process trauma”' and improving the reliability of the child's testimony. In this regard, Louisiana's “child shield law”' is representative of many such state laws. Louisiana also allows prerecorded videotape interviews with the victimized child to be introduced at trial. These interviews may be conducted outside the presence of the defendant or his counsel. Indeed, these interviews may be taken even before there is a defendant. At trial, section 440.3 allows for the introduction of the ex parte interview by creating a special exception to the hearsay rule. The state may introduce this videotape testimony in lieu of live testimony from the victim, who need not even be present in the courtroom. The child need only be “‘available to testify”’ so that the defendant may call her to the stand after the prosecution rests and cross-examine her as an adverse witness. This procedure is available to the prosecutor at his option; the discretion of the trial judge is the only limitation.
This Comment will analyze the recent enactment of Louisiana's child shield law (title fifteen, section 283 and sections 440.1 through 440.5) in light of the constitutional issues that it raises. The Comment begins by discussing the problems that have led to the enactment of such laws by several states. After discussing the perceived need for such laws, the Comment analyzes Louisiana's law in light of other states' child shield laws and relevant court discussions. The Comment first analyzes section 283 of Louisiana's child shield law, dealing with the introduction of live, closed-circuit testimony at trial in lieu of a personal appearance. Concluding that section 283 is unconstitutional but correctable, the Comment turns to section 440, which deals with the introduction at trial of prerecorded videotape evidence. The Comment concludes that this section of Louisiana's child shield law is fundamentally flawed and requires substantial revision.
About the Author
James Stephen O'Brien, Jr.
Citation
61 Tul. L. Rev. 141 (1986)