Michigan Supreme Court hears case on Confrontation Clause

By Roberta M. Gubbins Legal News People v. Rose, a case involving the confrontation clause of the Constitution, was one of several oral arguments heard in early October by the Michigan Supreme Court in its first case call. In People v. Rose, the trial court allowed the child witness to testify behind a screen after the girl's therapist testified that the child was fearful of seeing the defendant, and that seeing him could cause the girl to freeze up during her testimony or suffer a relapse in her therapy. While the screen kept the girl from seeing the defendant, he and others in the courtroom could see her. The defendant, who was convicted of four counts of first-degree criminal sexual conduct, argued that the screen violated his constitutional right to confront those who were testifying against him and the screen impaired the presumption of innocence by making it appear to the jury that he was a danger to the child. The Court of Appeals affirmed his convictions, stating in part that trial judges have latitude to protect young witnesses and that the use of a screen fell within the judge's authority to control the methods used to question witnesses. Rose's claim that his rights under the Confrontation Clause were violated was rejected, the court ruling that the right to confrontation may give way to an important public policy, such as protecting child witnesses. Finally, the Court of Appeals ruled that the use of a screen did not deprive Rose of his presumption of innocence. The question before the Michigan Supreme Court was "Does the use of a screen to shield a child complainant from the defendant violate the Confrontation Clause or prejudice the defendant by impinging on the presumption of innocence?" Scott Grabel, attorney for defendant Ronald Rose, began his argument stating that under the confrontation clause, "face to face contact is preferred and if it is going to be excused it should not be done lightly." Noting that most states use video conferencing, which he argued is not inherently prejudicial, when the witness is not available for trial testimony, he said, "This case goes to a different level, with the screen which violates the Confrontation Clause and is prejudicial." He stressed that video conferencing is preferable since it protects the child while also protecting the defendant's rights. Justice Young asked why video conferencing is less prejudicial. Grabel argued that there are numerous inferences that can be raised with video conferencing "such as the child may be out of state or too nervous to come in the courtroom while the presence of the screen leads to only one inference - that the child is afraid of only one individual--the defendant." Continuing his questioning, he asked if the defendant requested video in place of the screen or asked that a curative jury instruction be given. Justice Markman interjected that he saw no request for an alternative method in the record. Addressing the issue of a curative instruction, Grabel argued that it was hard to determine the benefit or detriment of such an instruction since to use it could call attention to the problem and not to use it would leave the jurors to their own solutions. "Jury instruction or not," Grabel said, "I think it (the screen) is inherently prejudicial. I do believe the use of video is safer." Judy Astle, prosecuting attorney, agreed that the Confrontation Cause does not always call for face-to-face confrontation and that there are exceptions and that the court has a duty to protect children testifying. She noted that the defendant did not disagree that the child needed the protection of the court, that the only disagreement was the method of protection. Asked why no cautionary instruction, Astle said it was not requested. Inquiry was made as to whether the instruction should be mandatory to which Astle answered that making the request is a tactical decision on the part of the defendant. Markman expressed concern that use of a screen or video conferencing was creating a dilution of the protections provided by the Confrontation Clause. The Michigan Supreme Court will go on the road on October 27 to Caro to hear a case as part of the "Court Community Connections" program. The Court will hear oral argument at the Tuscola Technology Center. Students and educators from Caro, Cass City, Vassar, Kingston, Reese, Akron-Fairgrove, Mayville, and Unionville-Sebewaing high schools will attend the oral argument, which begins at 12:45 p.m. Students and teachers will study the case of Frazier v. Allstate Insurance Company in advance with the help of local judges and attorneys from the Tuscola County Bar Association. The case raises the question: "Is a slip-and-fall covered by an automobile no-fault policy?" Published: Thu, Oct 20, 2011

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