Indiana Law Review


Indiana's Statutory Provisions for Alternative Testimony

in Child Sexual Abuse Cases: Is It Live or Is It

Memorex?

Susan D. Burke*

I. Introduction

At least one legal scholar believes that sexual abuse of children has

provided the subject matter for the witch hunt of the eighties.' Whether

this is true or not, the subject of sexual crimes against children has

prompted numerous attempts at legislative reform within the last five

years. ^ Just as hurried responses to perceived crises in other areas have

sometimes caused an overreaction or backlash, there is concern that the

outpouring of publicity about sex crimes against children has caused

legislative reforms to go too far too fast.^ Many of the highly publicized
cases, especially those involving allegations of mass abuse, have been

shown to be wholly or partially unsubstantiated.^ Furthermore, horror

stories of defendants who have been falsely accused have recently sur-
faced.^ While no one wants to see children sexually abused, almost

everyone would agree that there have been problems even with the

warranted prosecution of individuals in cases involving the sexual abuse

of children.

Troublesome questions have arisen. In our zest to protect children,

is it possible that we have been too willing to sacrifice the rights of

those accused of these crimes? Where should society strike the balance

between protecting children and protecting those accused? Should we

narrowly interpret defendants' constitutional rights to insure that our

children are rigorously protected? Is a narrow interpretation necessary,

*B.S., Indiana University, 1973; M.S., Purdue University, 1975; J.D., Indiana

University School of Law—Indianapolis, 1985. Trial Attorney, United States Equal
Employment Opportunity Commission. This Article was written in the author's private

capacity. No official support or endorsement by the United States Equal Employment
Opportunity Commission or any other agency of the United States government is intended

or should be inferred.

'Graham, Difficult Times for the Constitution: Child Testimony Absent Face-To-

Face Confrontation, Champion, Aug. 1985, at 18.

^Bulkley, Evidentiary and Procedural Trends in State Legislation and Other Emerging

Legal Issues in Child Sexual Abuse Cases, 89 Dick. L. Rev. 645 (1985).

^See, e.g., Graham, supra note 1, at 18-19.

"See Kinsley, Civic Virtuosity and Child Abuse Chic, Champion, Jan. /Feb. 1986,

at 7; see also Renshaw, When Sex Abuse Is Falsely Charged, Champion, Jan. /Feb. 1986,

at 8-10.

^See Renshaw, supra note 4, at 8-9.

161



162 INDIANA LAW REVIEW [Vol. 20:161

or do the legal reforms enacted already fit comfortably within our

constitutional framework? Although answering all of these questions is

beyond the scope of this Article, these are the questions that the legislature

and the judiciary have been faced with and have recently attempted to

answer.

Indiana is one of many states that have adopted recent legislation
aimed primarily at making it easier to bring to justice those who commit
sexual crimes against children.^ In 1984, the legislature enacted Indiana

Code section 35-37-4-6.^ This statute creates a hearsay exception that

''See Bulkley, supra note 2, at 666-68. Although Indiana's new statutory provisions

could apply to some non-sexual offenses, it appears that they were enacted largely to

remedy problems with testimony in sex crimes. They will therefore be discussed only as

they concern those crimes.

Tnd. Code § 35-37-4-6 (Supp. 1986). This statute provides:
Sec. 6. (a) This section applies to criminal actions for the following:

(1) Child molesting (IC 35-42-4-3).

(2) Battery upon a child (IC 35-42-2-1 (2)(B)).

(3) Kidnapping (IC 35-42-3-2).

(4) Confinement (IC 35-42-3-3).

(5) Rape (IC 35-42-4-1).

(6) Criminal deviate conduct (IC 35-42-4-2).

(b) A statement or videotape that:
(1) is made by a child who was under ten (10) years of age at the time
of the statement or videotape;

(2) concerns an act that is a material element of an offense listed in subsec-

tion (a) that was allegedly committed against the child; and

(3) is not otherwise admissible in evidence under statute or court rule;

is admissible in evidence in a criminal action for an offense hsted in subsection

(a) if the requirements of subsection (c) are met.

(c) A statement or videotape described in subsection (b) is admissible in evidence
in a criminal action listed in subsection (a) if, after notice to the defendant of

a hearing and of his right to be present:

(1) the court finds, in a hearing:

(A) conducted outside the presence of the jury; and

(B) attended by the child;

that the time, content, and circumstances of the statement or videotape

provide sufficient indications of reliability; and

(2) the child:

(A) testifies at the trial; or

(B) is found by the court to be unavailable as a witness because:

(i) a psychiatrist has certified that the child's participation in the

trial would be a traumatic experience for the child;

(ii) a physician has certified that the child cannot participate in

the trial for medical reasons; or

(iii) the court has determined that the child is incapable of un-

derstanding the nature and obligation of an oath.

(d) If a child is unavailable to testify at the trial for a reason listed in subsection

(c)(2)(B), a statement or videotape may be admitted in evidence under this section
only if there is corroborative evidence of the act that was allegedly committed

against the child.



1987] ALTERNATIVE TESTIMONY 163

allows the admission at trial of an extrajudicial statement or videotape

of a child victim under ten years of age if certain conditions are met.

Although the Indiana Court of Appeals has recently ruled that there is

no facial constitutional infirmity in section 35-37-4-6/ interesting con-

stitutional questions remain.

More recently, in 1986, Indiana Code section 35-37-4-8 was enacted.^
This statute establishes alternative forms of testimony for children during

(e) A statement or videotape may not be admitted in evidence under this section
unless the prosecuting attorney informs the defendant and the defendant's attorney

of:

(1) his intention to introduce the statement or videotape in evidence; and

(2) the content of the statement or videotaj>e;

within a time that will give the defendant a fair opportunity to prepare a response

to the statement or videotape before the trial.

^Hopper V. State, 489 N.E.2d 1209 (Ind. Ct. App. 1986), transfer denied, Aug. 16,

1986.

'Ind. Code § 35-37-4-8 (Supp. 1986). This statute provides:
Sec. 8. (a) This section applies to criminal actions for felonies under IC 35-42

and for neglect of a dependent (IC 35-36-1-4) and for attempts of those felonies

(IC 35-41-5-1).

(b) On the motion of the prosecuting attorney, the court may order that:
(1) the testimony of a child be taken in a room other than the courtroom
and be transmitted to the courtroom by closed circuit television; and

(2) the questioning of the child by the prosecution and the defense be

transmitted to the child by closed circuit television.

(c) On the motion of the prosecuting attorney, the court may order that the
testimony of a child be videotaped for use at trial.

(d) The court may not make an order under subsection (b) or (c) unless:
(1) the testimony to be taken is the testimony of a child who:

(A) is less than ten (10) years of age;

(B) is the alleged victim of an offense listed in subsection (a) for

which the defendant is being tried or is a witness in a trial for an

offense listed in subsection (a);

(C) is found by the court to be a child who should be permitted to
testify outside the courtroom because:

(i) a psychiatrist has certified that the child's testifying in the

courtroom would be a traumatic experience for the child;

(ii) a physician has certified that the child cannot be present in

the courtroom for medical reasons; or

(iii) evidence has been introduced concerning the effect of the

child's testifying in the courtroom, and the c<yurt finds that it is

more likely than not that the child's testifying in the courtroom
would be a traumatic experience for the child;

(2) the prosecuting attorney has informed the defendant and the defendant's

attorney of the intention to have the child testify outside the courtroom;

and

(3) the prosecuting attorney informed the defendant and the defendant's

attorney under subdivision (2) within a time that will give the defendant

a fair opportunity to prepare a response before the trial to the prosecuting

.attorney's motion to permit the child to testify outside the courtroom.



164 INDIANA LAW REVIEW [Vol. 20:161

the trial of certain criminal actions if specific conditions are met. Because

this statute was so recently enacted, it has yet to be interpreted by an

Indiana appellate court. '°

This Article will analyze both of these statutes in light of the

constitutional and practical questions that arise when they are utilized
in the prosecution of sexual crimes against children. The Article will
focus on possible infringement of defendants' rights, while hopefully

not losing sight of the rights of the victims.

II. The Problem

The difficulties in investigating cases involving sexual abuse of chil-

dren, bringing these cases to trial, and gaining convictions are well

documented.' • The state has faced numerous problems in proving every
element of these sexual offenses.'^ Initially, direct evidence or other

circumstantial evidence may be minimal.'^ Second, the child allegedly
involved is often the only witness available.'"* Third, the child-victim

(e) If the court makes an order under subsection (b), only the following persons

may be in the same room as the child during the child's testimony:

(1) Persons necessary to operate the closed circuit television equipment.

(2) Persons whose presence the court finds will contribute to the child's

well-being.

(3) A court bailiff or court representative.
(0 If the court makes an order under subsection (c), only the following persons

may be in the same room as the child during the child's videotaped testimony:

(1) The judge.

(2) The prosecuting attorney.

(3) The defendant's attorney (or the defendant, if the defendant is not

represented by an attorney).

(4) Persons necessary to operate the electronic equipment.

(5) The court reporter.

(6) Persons whose presence the court finds will contribute to the child's

well-being.

(7) The defendant, who can observe and hear the testimony of the child
without the child being able to observe or hear the defendant. However,

if the defendant is not represented by an attorney, the defendant may
question the child.

(g) If the court makes an order under subsection (b) or (c), only the following

persons may question the child:

(1) The prosecuting attorney.

(2) The defendant's attorney (or the defendant, if the defendant is not

represented by an attorney).

(3) The judge.

'°Ind. Code § 35-37-4-8 (Supp. 1986) had an effective date of Sept. 1, 1986.
"5ee Note, The Testimony of Child Victims in Sex Abuse Prosecutions: Two Leg-

islative Innovations, 98 Harv. L. Rev. 806 (1985).

'^See id. at 806-07.

^^See, e.g., Bulkley, supra note 2, at 646; Note, supra note 11, at 806-07.

'"See, e.g., Bulkley, supra note 2, at 646; Note, supra note 11, at 806-07.



1987] ALTERNATIVE TESTIMONY 165

may be found incompetent to testify.'^ Fourth, even if the child is
competent to testify, there are several obstacles that a proponent of a

child's testimony faces. A child may be unable to recall crucial details
of what occured.'^ And, if a child does have adequate recall, the child
may have difficulty relating what occurred to the jury. Furthermore, a
child may be easily confused by cross-examination. '"^

Although there have been attempts to improve the investigatory

process, such as special training for personnel and the development of

anatomically correct dolls, '^ the legislative reforms have dealt primarily

with the testimonial problems. Underlying these attempts at reform have

been certain assumptions about the psychological development and func-

tioning of children. It is important briefly to examine some of these
assumptions, for if some of them are erroneous, the proper balance
between the preservation of defendants' rights and the protection of

children has not been and will not be achieved.'^

Two assumptions appear to underlie recent statutory changes estab-
Hshing alternative methods for a child's testimony. The first is that
children are more traumatized when testifying in court about sexual
abuse than when testifying about other subjects. ^° The second assumption
is that this trauma is greater in a child than in an adult. ^' Although

these assumptions appear plausible, it is debatable whether there has

been adequate research to back them up. Possibly adults are transferring
their own fears and anxieties onto the children faced with this admittedly
unpleasant experience.

According to a leading article on the protection of child victims in
the criminal justice system:

The fact is that psychiatrists all over the world repeatedly warn
that legal proceedings are not geared to protect the [child] victim's

emotions and may be exceptionally traumatic^ ^ . . . [However,] the

''See Note, supra note 11, at 807; see also Ind. Code § 34-1-14-5 (1982), which
states, in relevant part: "The following persons shall not be competent witnesses: . . .
Children under ten (10) years of age, unless it appears that they understand the nature

and obligation of an oath."

'^See Note, supra note 11, at 807 and authorities cited therein.
''Id.

'"Although a discussion of changes in the investigation of child sex abuse and attendant
problems is not within the scope of this Article, they are addressed in general in Frost,
"Weird Science" and Child Sexual Abuse Cases, Champion, Jan. /Feb. 1986, at 17-18;
Libai, The Protection of the Child Victim of a Sexual Offense in the Criminal Justice
System, 15 Wayne L. Rev. 977 (1969); Mclver, The Case for a Therapeutic Interview
in Situations of Alleged Sexual Molestation, Champion, Jan. /Feb. 1986, at 11-12.

'''See Libai, supra note 18, at 1003-05.

^°M at 979-86.

^Td.

'Hd. at 1015.



166 INDIANA LAW REVIEW [Vol. 20:161

Studies do not as yet demonstrate a clear causal link between the
legal proceedings and the child victim's mental disturbances; but
no psychiatric study has attempted to prove, or is likely to attempt
to prove in the future, such a causal link. Psychiatrists agree that

they cannot isolate the effects of the '*crime trauma" from the
"prior personality damage" or either of the foregoing from the
"environment reaction trauma" or the "legal process trauma." But
psychiatrists do agree that when some victims encounter the law
enforcement system, for one reason or another, the child requires

special care and treatment. ^^

Although this article was pubhshed in 1969, it is still often cited and

was used to substantiate a decision of the New Jersey Superior Court
as recently as 1984.^"* In sum, although children may be traumatized by
legal proceedings, the causal link between the legal proceedings and the

trauma suffered by a crime victim has not been established, and any

adverse effect of the legal proceedings cannot be isolated.

Studies of adults who were sexually abused as children have shown
that a significant portion of these individuals suffered permanant emo-

tional harm as a result of such abuse. ^^ Although this result does not
seem surprising, the question of what portion of the emotional harm
was due to the victim's involvement in the legal system, especially court

procedures, remains unanswered. One study, which compared victims
who had been involved in court proceedings with a random sample of
victims, found that a larger percentage of those not involved in the

legal system were able to recover more quickly than their legally involved
counterparts.^^ The differences, however, could not be attributed solely
to court involvement.^^

Psychiatrists often testify to the damage that will be done to children
forced to testify in a courtroom proceeding. ^^ Until empirical studies are

performed, however, establishing that demonstrable harm to children is
specifically caused by the court experience itself, it may be prudent not
to abridge defendants' rights under the guise of protecting children from

emotional trauma.

Furthermore, children are not born with an innate knowledge that

sexual matters are "bad," "nasty," or embarrassing.^^ Information about

'-'Id.

''See State v. Sheppard, 197 N.J. Super. 411, 484 A.2d 1330 (1984).

''See Libai, supra note 18, at 981-82.

''Id. at 982.

''Id. at n.22.

"See State v. Sheppard, 197 N.J. Super. 411, 416, 484 A.2d 1330, 1334 (1984);

Libai, supra note 18, at 1015.

^'E. Panting & G. Reynolds, Introduction to Contemporary Psychology 363-
66 (1975).



1987] ALTERNATIVE TESTIMONY 167

society's sexual taboos must instead be learned. ^° It is possible, therefore,

that adults are transferring their own concerns to children regarding
sexually-oriented testimony. Moreover, an adult's reaction to the initial

report of sexual abuse may negatively color the experience for the child
and induce part of the trauma the child experiences.^'

Without demonstrable evidence that special trauma attributable to

the courtroom experience itself is more likely to occur in child-victims

of sexual abuse than in adult-victims of sexual crimes, the reforms in

this area will meet with strong and valid opposition. ^^ Is a young teenager

or adult-victim of a sexual crime truly better prepared to withstand the

trauma of testifying in open court than a child-victim of such a crime?

The answer may be yes, but until there is supporting empirical evidence,
caution would be wise when enacting reforms that may place defendants
in these crimes in special jeopardy or narrow their constitutional pro-

tections.

III. Indiana's Legislative Solutions

A. Indiana Code Section 35-37-4-6

Indiana's child-victim hearsay exception, Indiana Code section 35-

37-4-6, allows the hearsay statement of a child-victim to be admissible

at trial if the court determines that the time, content, and circumstances

of the hearsay statement provide sufficient indications of reliability and

if the child either testifies at trial or is found to be "unavailable" as

a witness." The statute also provides that if the child is unavailable as

a witness, there must be corroborating evidence of the act allegedly

committed against the child. ^"^ When the child testifies at trial, the
provision for the admission of the hearsay statement appears to go no

farther than the Patterson rule, a well-established principle of Indiana

law.^^

When the hearsay statement is admitted at trial and the child-victim
never testifies in open court, however, the admission represents a de-

parture from established laws of evidence. ^^ The obvious question this

^°/g?. at 118-20; E, Hetherington & R. Porke, Child Psychology: A Contemporary
Viewpoint 566-75 (2d ed. 1979).

^'See Libai, supra note 18, at 980-81.

'^See, e.g.. Long v. State, 694 S.W.2d 185, 191 (Tex. Ct. App. 1985).
"Ind. Code § 35-37-4-6 (Supp. 1986). For full text of this statute, see supra note 7.
''Id. § 35-37-4-6(d).

'^The Patterson rule, announced in Patterson v. State, 263 Ind. 55, 324 N.E.2d

482 (1975), basically allows the admission of an otherwise excludable prior hearsay statement

as substantive evidence if the declarant testifies at trial and is available for cross-examination.

^*As a general rule, hearsay testimony is inadmissible at trial unless it falls within

certain exceptions. See generally McCormick on Evidence §§ 244-53 (E. Cleary 2d ed.
1972).



1 68 INDIANA LA W REVIEW [Vol . 20: 1 6

1

situation raises is whether such admission violates the defendant's right

of confrontation guaranteed by both the United States^^ and Indiana

Constitutions.^^ In Hopper v. State, ^"^ the defendant raised just such an
objection to the admission of a child-victim's hearsay statement, and

the Indiana Court of Appeals found that the admission of the statement

did not deny the defendant his right of confrontation/° In determining

the constitutionality of section 35-37-4-6, the court rehed on the United

States Supreme Court's decision in Ohio v. Roberts^^ In Roberts, the

Court held that an extrajudicial statement may be admitted when the
witness has been shown to be unavailable if the statement possesses
"sufficient indicia of reliability.'"*^ Furthermore, no additional showing

of reliability need be made if the evidence falls within a firmly rooted
hearsay exception."*^

In Hopper, the Indiana court noted section 35-37-4-6 required "that

the time, content, and circumstances of the statement provide sufficient

indications of reliability" and therefore was fully in compliance with

the mandates of Roberts."^ The court found that the witness in Hopper
satisfied the requirement of unavailability because she was found to be

incapable of understanding the nature and obhgation of an oath."*^

Moreover, the witness's statement fell within the excited utterance or

spontaneous exclamation exception to the traditional hearsay rule, thus satis-

fying the reliability requirement.^^ In addition, the statute appears to go even

farther than the requirements of Roberts, because it requires that when
a statement is to be admitted because of unavailability, there must be

corroborative evidence of the act allegedly committed."*^

Ohio V. Roberts, however, did not involve the extrajudicial statement

of a child and, therefore, did not address the controversial issue of

finding a child witness to be unavailable because of psychiatric testimony

"U.S. Const, amend, VI provides: "In all criminal prosecutions, the accused shall

enjoy the right ... to be confronted with the witnesses against him." This amendment

is often referred to as the confrontation clause. See Ohio v. Roberts, 448 U.S. 56, 62

(1980).

Hkd. Const, art. 1, § 13 states: "In all criminal prosecutions, the accused shall

have the right ... to meet the witnesses face to face, and to have compulsory process

for obtaining witnesses in his favor."

^M89 N.E.2d 1209 (Ind. Ct. App. 1986).

'°Id. at 1212-13.

^'448 U.S. 56 (1980).

''Id. at 66.

''Id.

M89 N.E.2d at 1212.
''Id.

''Id.

"iNH. Code § 35-37-4-6(d) (Supp. 1986) provides that "If a child is unavailable to
testify at the trial for a reason listed in subsection (c)(2)(B), a statement or videotape

may be admitted in evidence under this section only if there is corroborative evidence of
the act that was allegedly committed against the child."



1 987] ALTERNA TIVE TESTIMONY 1 69

that testifying would be traumatic, or because the child is incapable of

understanding the nature and obligation of an oath/^ At first glance,

incompetency as a basis for unavailability would seem to be a logical

anomaly—allowing the hearsay statement of an incompetent witness to
be admitted for the very reason that the witness is incompetent. When
the defendant in Hopper raised this argument, however, the court noted

that the incompetence of children under ten who are unable to understand
the nature and obligation of an oath pertains only to in-court testimony,

not to out-of-court statements/^ In addition, however logically incon-

sistent this position may seem, finding child witnesses to be unavailable
because they are incompetent to testify, in order to admit their state-

ments, appears to be an increasingly accepted position. ^^

The opposite position is not without its adherents, however. In State

V. Ryan,^^ the Supreme Court of Washington found that statements

admitted under a child hearsay statute very similar in its procedure to

Indiana's were inadmissible. ^^ Although part of the problem in Ryan

was a stipulation to incompetence, the court noted that if the judge

had examined the witnesses and found them incompetent based on their

inabihty to receive a just impression of the facts, then their testimony

would be too unreliable for admission." The Ryan court held that the

declarant's competency is a precondition to the admission of his hearsay

statements, with the exception of res gestae utterances.^'* Under this strict

standard for admissibility, however, Hopper is not inconsistent with

Ryan, because the child's testimony in Hopper fell under the traditional

hearsay exception of excited utterance or spontaneous exclamation."

^»Ind. Code § 35-37-4-6(c)(2)(B) (Supp. 1986) provides for a finding of unavailability

on either of these grounds.

^^489 N.E.2d at 1212 n.4 (citing Jarrett v. State, 465 N.E.2d 1097 (Ind. 1984)).

'°For a discussion of child-victim hearsay statutes in general, see Bulkley, supra note

2, at 649-52, 666-67.

='103 Wash. 2d 165, 691 P.2d 197 (1984).

"Washington's statute, Wash. Rev. Code § 9A.44.120 (Supp. 1986), provides for

the admission of the extrajudicial statement of a child under the age of ten which concerns

an act of sexual conduct if:

(1) The court finds, in a hearing conducted outside the presence of the

jury that the time, content, and circumstances of the statement provide

sufficient indicia of reliability; and

(2) The child either:

(a) Testifies at the proceedings; or

(b) Is unavailable as a witness: Provided, That when the child is

unavailable as a witness, such statement may be admitted only if there

is corroborative evidence of the act.

Although this statute does not specify the grounds for unavailability, the issue in

the case was the child's incompetence.

"103 Wash. 2d at 177, 691 P. 2d at 204.

''Id., 691 P.2d at 203-04.

"489 N.E.2d at 1212.



170 INDIANA LAW REVIEW [Vol. 20:161

Given the number of states that have enacted similar statutes, the child

hearsay exception as enacted in Indiana seems here to stay.^^ The United

States Supreme Court, however, has yet to rule on the constitutionality

of any of these statutes.

A second basis for a court to find a child unavailable as a witness,
provided in section 35-37-4-6, is that a physician has certified that the

child cannot participate in the trial for medical reasons. ^^ A finding of
medical unavailability under this subpart should receive little opposition

because it reflects a traditional basis for the unavailability of any witness. ^^

The third basis upon which a court may find a child unavailable
as a witness, provided by section 35-37-4-6, is that a psychiatrist has

certified that the child's participation in the trial would be a traumatic

experience for the child. ^^ This basis of unavailability raises the issue

of whether defendants' rights are being narrowed based on unsupported

assumptions about child-witnesses. No Indiana appellate court has ad-
dressed the constitutionality of this specific subpart of sec-

tion 35-37-4-6.

In Long V. State, ^^ however, the Court of Appeals of Texas delineated

and balanced the competing interests involved when it scrutinized a state

statute allowing a videotaped statement of a child to be admitted at

trial. ^^ The court recognized the state's legitimate and substantial interest

^^See Bulkley, supra note 2, at 666-67.

"IND. Code § 35-37-4-6(c)(2)(B)(ii) (Supp. 1986).
^^See McCoRMiCK on Evidence § 253 (E, Cleary 2d ed. 1972).
^^IND. Code § 35-37-4-6(c)(2)(B)(i) (Supp. 1986).
«'694 S.W.2d 185 (Tex. Ct. App. 1985).

*'The Texas statute involved was TeX. Code Crim. Proc. Ann. art. 38.071, § 2

(Vernon Supp. 1985), which states:

Sec.2. (a) The recording of an oral statement of the child made before the

proceeding begins is admissible into evidence if:

(1) no attorney for either party was present when the statement was made;

(2) the recording is both visual and aural and is recorded on film or

videotape or by other electronic means;

(3) the recording equipment was capable of making an accurate recording,

the operator of the equipment was competent, and the recording is accurate

and has not been altered;

(4) the statement was not made in response to questioning calculated to

lead the child to make a particular statement;

(5) every voice on the recording is identified;

(6) the person conducting the interview of the child in the recording is

present at the proceeding and available to testify or be cross-examined by

either party;

(7) the defendant or the attorney for the defendant is afforded an opportunity

to view the recording before it is offered into evidence; and

(8) the child is available to testify.

(b) If the electronic recording of the oral statement of a child is admitted into

evidence under this section, either party may call the child to testify, and the
opposing party may cross-examine the child.



1987] ALTERNATIVE TESTIMONY 171

in protecting a child from emotional harm^^ and even acknowledged that

children who testify may be more damaged by their traumatic role in
the court proceedings than they were by their abuse." Nevertheless, when
these concerns were pitted against a defendant's constitutional rights,

the balance struck was in favor of the defendant and his right of con-

frontation/'*

Notably, the statute at issue in Long required several procedures
not required by Indiana Code section 35-37-4-6. For example, the Texas
statute required that the declarant be available to testify at trial and

provided that either party could call the declarant for examination and

cross-examination.^^ In this respect, therefore, the statute seemed to

present no more than a videotaped version of Indiana's Patterson rule.^^

Nevertheless, the court found that the tape was hearsay with no indicia

of reliability;^^ the interposition of a camera might distort the evidence;^^

the evidence of reduced trauma during videotaping was insufficient;^^ a

belated opportunity to cross-examine a witness was not sufficient to

protect confrontation rights;^° and the statute compelled the defendant

to forgo either his right to confrontation or his right to remain silent.^'

The court also expressed concern over the lack of empirical evidence

that in-court testimony traumatizes children, especially in light of possible

abridgement of the defendant's rights. ^^

While the decisions in Long and Ryan have no direct precedential
value in Indiana, they do reflect the lack of uniformity in this area of

the law. In addition, the decisions to date have not addressed all of

the grounds for unavailability contained within section 35-37-4-6. The
Indiana appellate court in Hopper, while upholding the facial consti-

tutionality of section 35-37-4-6, did not address all of the issues raised

above, nor did it preclude future findings of unconstitutional application

of the statute. It therefore remains to be seen just how far Indiana
courts will go in upholding the constitutionality of section 35-37-4-6.

B. Indiana Code Section 35-37-4-8

Indiana's alternative testimony for children provision, code section

35-37-4-8, provides two methods by which a child may testify at trial

''^Long, 694 S.W.2d at 190.

"M (citing State v. Sheppard, 197 N.J. Super. 411, 484 A.2d 1330 (1984)).
^Id. at 192-93.

"Tex. Code Crim. Proc. Ann. art. 38.071, § 2(a)(8), 2(b) (Vernon Supp. 1985).
See the full text of these subsections supra note 61.

^^See supra note 35.

''Long, 694 S.W.2d at 189.

'•''Id. at 190-91.

""Id. at 191-92.

''Id. at 192.

'^Id. at 191-92.



1 72 INDIANA LA W REVIEW [Vol . 20 : 1 6

1

while the child is separated from the trial by either time, or space, or

both.^^ The first allows the child to be in a room separated from the
courtroom.^'* Questions by the defense and the prosecution are transmitted

to the child via closed circuit television. ^^ The child's testimony is trans-

mitted to the courtroom via the same closed circuit connection. ^^ The

second method entails having the child's testimony videotaped and later

presented at trial. ^^ The defendant, the defendant's attorney, the pros-

ecuting attorney, and the judge are all in the same room as the child. ^^

The defendant is allowed to see and hear the child without the child

being able to observe or hear the defendant. ^^ As with the previously
discussed hearsay exception statute,^° this "alternative testimony for

children" statute raises constitutional questions regarding the confron-

tation clauses of the United States Constitution^ • and the Indiana Con-

stitution. ^^ Notably, the statute, while allowing the defendant's attorney^^

to question the child, ^"^ does not specifically preserve for the defendant's

attorney the right to cross-examine the child. ^^ The right specifically to
cross-examine the child will most likely be read into the statute to avoid

confrontation clause problems.

Section 35-37-4-8 is interesting in that a court does not need to find

that a child is "unavailable" as a prerequisite to use of the alternative

procedures. The court merely must find that the child "should be

permitted to testify outside the courtroom" because of certain specific

reasons.^^ This lack of a requirement of unavailability appears to place

"Ind. Code § 35-37-4-8 (Supp. 1986). For the entire text of the statute, see supra
note 9.

^^IND. Code § 35-37-4-8(b)(l) (Supp. 1986).
"M § 35-37-4-8(b)(2).
'''Id. § 35-37-4-8(b)(l).

''Id. § 35-37-4-8(c).

''Id. § 35-37-4-8(0.

'^Id. § 35-37-4-8(0(7). If the defendant is not represented by an attorney, however,

the defendant may question the child. Id.
'°Id. § 35-37-4-6.

«'U.S. Const, amend. VI.

«^lND. Const, art. 1, § 13.

"If the defendant is not represented by an attorney, the defendant may question
the child. Ind. Code § 35-37-4-8(0(7) (Supp. 1986).

*''The child may be the victim of or a witness to one of the applicable offenses.
^^Ind. Code § 35-37-4-8(g) (Supp. 1986) states that certain persons may question the

child.

»^Ind. Code § 35-37-4-8(d)(l)(C) (Supp. 1986) states the following reasons:
(i) a psychiatrist has certified that the child's testifying in the courtroom

would be a traumatic experience for the child;

(ii) a physician has certified that the child cannot be present in the courtroom

for medical reasons; or

(iii) evidence has been introduced concerning the effect of the child's



1987] ALTERNATIVE TESTIMONY 173

section 35-37-4-8 in conflict with the requirements of Ohio v. Roberts^'

and, therefore, lay the groundwork for a constitutional challenge unless

the lower courts consistently read this requirement into the statute.

Although Indiana Code section 35-37-4-8 has received no judicial

interpretation, caselaw from other jurisdictions is helpful in its analysis.

In McGuire v. State,^^ the Arkansas Supreme Court found that the

admission of a previously videotaped deposition of a child victim as a

substitute for the child's in-court testimony did not violate the defendant's

constitutional right to confrontation.^^ The deposition was admitted in

a rape prosecution solely because the child's grandparents testified that

her appearance before a jury might cause serious harm.^° The defendant

had the right to confront and cross-examine the witness at the depo-

sition.^^ The court distinguished such cases as United States v. Benfield,'^^

a case that involved an adult witness and a non-sexual offense. The

court in Benfield had held the witness's deposition was inadmissible

because the defendant had not been allowed to participate actively in

the deposition. ^^ The witness's unavailability was due to a psychiatric

impairment so severe that it required hospitalization. ^"^ The defendant's

inabihty to participate in the deposition was the primary impediment to

its admissibility.^^

A statute very similar to Indiana Code section 35-37-4-8(c) was under
constitutional attack in Powell v. State. ^^ The Texas statute^^ at issue

testifying in the courtroom, and the court finds that it is more Hkely than

not that the child's testifying in the courtroom would be a traumatic

experience for the child; . . .

"448 U.S. 56 (1980).

««288 Ark. 388, 706 S.W.2d 360 (1986).

''Id. at 393, 706 S.W.2d at 362.

''Id. at 391, 706 S.W.2d at 361.

"M at 393, 706 S.W.2d at 362.
^^593 F.2d 815 (8th Cir. 1979).

''Id. at 821-22.

''Id. at 817.

"Id. at 821-22.

%94 S.W.2d 416 (Tex. Ct. App. 1985).
^^Tex. Code Crim. Proc. Ann. art. 38.071, §§ 4, 5 (Vernon Supp. 1985). These

sections read as follows:

Sec. 4. The court may, on the motion of the attorney for any party, order that

the testimony of the child be taken outside the courtroom and be recorded for

showing in the courtroom before the court and the finder of fact in the proceeding.

Only those persons permitted to be present at the taking of testimony under

Section 3 of this article may be present during the taking of the child's testimony,

and the persons operating the equipment shall be confined from the child's sight

and hearing as provided by Section 3. The court shall permit the defendant to

observe and hear the testimony of the child in person, but shall ensure that

the child cannot hear or see the defendant. The court shall also ensure that:



1 74 INDIANA LA W REVIEW [Vol . 20: 1 6

1

provided that upon the motion of the attorney for either party, the

court could order that the child's testimony be taken outside the court-

room and recorded for admission at trial. ^^ The statute provided that
when this procedure was used, the child could not be required to testify

in open court^^ and that while the defendant was entitled to see and

hear the child giving testimony, the child must not see or hear the

defendant. '°° In these respects, the Texas statute was almost identical to

section 35-37-4-8. '^i

In reaching its decision that the statute was unconstitutional, the

Texas court cited Davis v. Alaska^^^ for the proposition that

"[clonfrontation means more than being allowed to confront the witness
physically, "'°^ and then surmised that this phrase "surely implied that

confrontation means at least being allowed to confront the witness

physically. "'^"^ The Texas statute, in denying the defendant the right to

be seen and heard by his accuser, violated this right to physical face-

to-face confrontation. •^^ Furthermore, the state's interest in the emotional

well-being of its children did not outweigh this right to direct confron-

tation. •'^ The court cited with approval a passage from Vasquez v.

State, ^^'^ a case dealing with child rape:

The little girl was nervous and exited [sic] and this was relied

upon as a reason for the State not offering her as a witness,

though she was an unusually smart child. We do not believe
that it is sufficient under the facts stated to defeat the right of

the accused to be confronted by the witness against him. The

(1) the recording is both visual and aural and is recorded on film or

videotape or by other electronic means;

(2) the recording equipment was capable of making an accurate recording,

the operator was competent, and the recording is accurate and is not altered;

(3) each voice on the recording is identified; and

(4) each party is afforded an opportunity to view the recording before it

is shown in the courtroom.

Sec. 5. If the court orders the testimony of a child to be taken under Section

3 or 4 of this article, the child may not be required to testify in court at the
proceeding for which the testimony was taken.

•^Id.

''^Id.

'°'Ind. Code § 35-37-4-8 (Supp. 1986) does not provide for the additional in-court
testimony of the child, and Ind. Code § 35-37-4-8(0(7) (Supp. 1986) contains a provision
for keeping the defendant hidden from the sight and sound of the witness.

'°M15 U.S. 308 (1974).

'^'Powell, 694 S.W.2d at 419 (quoting Davis v. Alaska, 415 U.S. 308, 315 (1974)).

"^Id.

'°'Id. at 420.

'°n45 Tex. Crim. App. 376, 167 S.W.2d 1030 (1942).



1 987] A L TERNA TIVE TESTIMONY 1 7 5

writer shares all of the sympathy which the State and the jury

may have had for the child in her unfortunate situation and
would like to reheve her completely of the embarrassment, but

it would set a precedent too dangerous to be sanctioned. It

would be better that a guilty person may go unpunished than
that this important provision of our Constitution should be

ignored. The rights of the accused in the instant case, however

important to him, are infinitesimal when compared to the rights
of the millions which are protected by the constitutional provision

involved. '°^

The court in Powell also found that the right of confrontation and

cross-examination is personal to the accused and that the statute im-

permissibly required him to delegate to his attorney entirely this cross-

examination. '°^ While the same type of delegation appears to be present

in Indiana Code section 35-37-4-8, ''° it is unHkely that Indiana courts
would reach the same conclusion as the Powell court on this issue. "•

As to the other defects in the Texas statute noted by the court, how
Indiana courts will rule on parallel provisions necessarily remains unclear.

A California case that squarely addressed the issue of physical face-
to-face confrontation in a sex crime prosecution was Herbert v. Superior

Court.^^^ In Herbert, the trial court concluded that the child witness was

disturbed by the courtroom and especially by the presence of the defend-

ant and therefore ordered a seating arrangement where the defendant,

although present in the courtroom, could not see or be seen by the

witness. '^^ The defendant was further instructed to raise his hand if he

could not hear or if he wished to confer with his counsel.''"* Although

the prosecution argued that the essential purpose of the confrontation

clause was to provide for adequate cross-examination, the court found

that this was not the only purpose. The court took note of a long line

of United States Supreme Court decisions that stressed the face-to-face

nature of confrontation''^ and stated that "[b]y allowing the child to

'o«Pow^//, 694 S.W.2d at 420 (quoting Vasquez v. State, 145 Tex. Crim. App. 376,

380, 167 S.W.2cl 1030, 1032 (1942)).

'°Vc^. at 420-21.

"°Ind. Code § 35-37-4-8(g)(2) (Supp. 1986) provides that the defendant is entitled
to question the child only if he is not represented by an attorney.

'''See, e.g., Abner v. State, 479 N.E.2d 1254 (Ind. 1985); Gallagher v. State, 466

N.E.2d 1382 (Ind. Ct. App. 1984), where defense counsel's presence and participation at

a deposition of prosecution witnesses were held to constitute a waiver of objection to

admission of the depositions on the grounds of confrontation.

"M17 Cal. App. 3d 661, 172 Cal. Rptr. 850 (1981).
"'Id. at 664, 172 Cal. Rptr. at 851.

"'Id. at 665, 172 Cal. Rptr. at 851.

"^The court cited Dowdell v. United States, 221 U.S. 325 (1911); Kirby v. United



1 76 INDIANA LA W REVIEW [Vol . 20: 1 6

1

testify against defendant without having to look at him or be looked

at by him, the trial court not only denied defendant the right of

confrontation but also foreclosed an effective method for determining

veracity. "''^ Although the procedure in Herbert was court-initiated rather

than statutory, the confrontation issues involved remain the same as

those raised by the new statutory schemes.

In another CaHfornia decision, Hochheiser v. Superior Court, ^^^ the

court considered similar issues in relation to the use of closed circuit

television for testimony. Although this television procedure was instituted

by a court rather than provided for by statute, the procedure involved

was very similar to the provisions for closed circuit testimony in Indiana

Code section 35-37-4-8.''^ The court in Hochheiser did not reach the
constitutional issues involved with closed circuit testimony because it

held that the trial court did not have the inherent power to use it absent

statutory authorization. ^'^ However, the court did note several reservations

about the procedure. After considering several possible negative con-

sequences of camera presentation of evidence, the court concluded that

closed circuit television might affect a juror's impressions of the witness's

credibility and demeanor. '^° The court also considered the possible adverse

effect of the closed circuit procedure on the presumption of the defend-

ant's innocence.'^' Finally, the court considered the insufficiency of the

evidence that such a procedure was necessary. '^^ The court noted that

the United States Supreme Court, in Globe Newspapers v. Superior

Court, ^^^ stated that when considering children's testimony, the measure
of the state's interest in a procedure is not the extent to which minors

are injured by testifying, but the increase in injury caused by testifying

in front of the jury and the defendant.'^ The Hochheiser court then

stated:

In our research of the professional literature on the matter, we
have not discovered any study, based on empirical data, which

States, 174 U.S. 47 (1899); and Mattox v. United States, 156 U.S. 237 (1895). Herbert,

117 Cal. App. 3d at 667, 172 Cal. Rptr. at 853.

''''Herbert, 117 Cal. App. 3d at 668, 172 Cal. Rptr. at 853.

"^61 Cal. App. 3d 777, 208 Cal. Rptr. 273 (1985).

"^The court conducted a hearing on the prosecutor's motion that two child witnesses

be allowed to testify by closed circuit television and received testimony that the children

would be psychologically stressed from testifying in open court. The proposed procedure

provided for the witness being able to see the defendant and cross-examiner, and the

defendant being able to see the witness. Id. at 781, 208 Cal. Rptr. at 275.

'"/J. at 787, 208 Cal. Rptr. at 279.

'^°M at 786, 208 Cal. Rptr. at 278-79.

'^'M at 787, 208 Cal. Rptr. at 279; see infra notes 149-53 and accompanying text.

''^Hochheiser. 161 Cal. App. 3d at 792-93, 208 Cal. Rptr. at 282-83.
'"457 U.S. 596 (1982).

'''Id. at 607 n.l9.



1987] ALTERNATIVE TESTIMONY 111

deals with the damaging psychological effect of giving testimony

in the presence of the jury and the accused, on the sexually

abused child. Rather, we found that such literature merely con-

tains generalized statements to this effect.
'^^

The viewpoints expressed by the California courts are not without

their opponents, however. In State v. Sheppard,^^ the New Jersey Su-
perior Court vigorously upheld the use of a closed circuit procedure.

Because Sheppard is a leading case for proponents of these alternative

methods of testimony, it will be examined at length. Sheppard involved

a sexual offense against a ten year old child, and upon a motion by

the state to allow the child to testify via closed circuit television, a

hearing was held to consider the propriety of the procedure. '^^ The chief

testimony at the hearing was presented by a forensic psychiatrist who

had interviewed the child witness. He testified that the witness had the
capacity to testify truthfully, but that the use of the video equipment

would improve the accuracy of her testimony. ^^^ The psychiatrist further

stated that while the courtroom atmosphere makes an adult more likely

to testify truthfully, the opposite was true of a child witness, especially

when the alleged abuse was perpetrated by a relative. '^^ He felt that the
child's ambivalent feelings accompanied by the fear, guilt, and anxiety

produced by the situation would mitigate the truth and result in inaccurate

testimony. '^^ The psychiatrist believed that the video arrangement would

reUeve these feelings and improve the accuracy of the testimony. '^^

Furthermore, he testified that while the witness was basically psycho-

logically-fit, probable long-range consequences of her in court testimony

would include behavioral problems, nightmares, depression, and problems

with eating, sleeping, and school. '^^ Nothing in the published opinion,

however, indicated just how the psychiatrist reached his prognosis.

There was also testimony in Sheppard from two attorneys who had
prosecuted child abuse cases. They both testified primarily as to problems

with the prosecution of such cases caused by difficulties with child-

victim testimony.'" The state's final witness was a video expert, who
testified as to the proposed video arrangement and conducted a dem-

onstration. '^"^

'^'161 Cal. App. 3d at 793, 208 Cal. Rptr. at 283.
'^^197 N.J. Super. 411, 484 A.2d 1330 (1984).

'^'Id. at 415, 484 A.2d at 1332-34.

'2«M at 416, 484 A.2d at 1332.

'^'Id.

'"''Id.

'''Id.

'''Id. at 416-17, 484 A.2d at 1332-33.

'"M at 417, 484 A.2d at 1333.
'''Id. at 418, 484 A.2d at 1333-34.



1 78 INDIANA LA W REVIEW [Vol . 20: 1 6

1

The defendant in Sheppard objected that his constitutional right to
confrontation was violated, but the court noted that the right of con-

frontation was not absolute. ^^^ After an extensive discussion of the

meaning of confrontation, the court appeared to conclude that the

primary constitutional guarantee was that of cross-examination, not direct

face-to-face confrontation J^^ The court also analogized the case at bar

to an earlier New Jersey case^^^ where the defendant was excluded from
the judge's private interview with a child while being permitted to hear

the interview in another room. In that case, there was found no abridge-

ment of the defendant's right of confrontation. The earlier case, however,

involved custody and was not a criminal trial.

The Sheppard court also addressed the defendant's due process

contentions concerning possible technical distortions of the medium, as
well as its failure accurately to present demeanor and dramatic com-

ponents of testimony. '^^ The court noted that the "filtering" effect of

the medium would equally benefit both sides and found that videotaped
testimony was sufficiently similar to live testimony that the jury could

still properly perform its function. '^^ The court also took judicial notice

of the widespread availability of television in American households, and

the resultant familiarity with its technical characteristics and distortions. ^"^^

The court did not address, however, the idea that a large portion of

what we view on television is fiction as opposed to real life presenta-
tions. ^'^' The court in Sheppard stated:

Any zeal for the prosecution of these cases, however, cannot
be permitted to override the constitutional rights of the defend-

ants involved. They are at great disadvantage in these cases. The

testimony of a small child can be very winsome (more winsome,

perhaps, if she testifies in person than by videotape.) The dif-
ficulty of cross-examining a young child may prevent the exposure

'''Id. at 426, 484 A.2d at 1339.

''''Id.

'"New Jersey Youth & Family Servs. v. S.S., 185 N.J. Super. 3, 447 A.2d 183
(1982).

"«197 N.J. Super, at 430, 484 A.2d at 1341.

'^°M

""This point is crucial to the issues involved. People are accustomed to viewing

horrible things on television while at the same time they are not always able to separate

fictional characters from real life people. This is especially a concern with children. One
need only view the cartoons on television to learn that a character can be killed in one

scene and happily go about his business in the next. This indoctrination may make what
is seen on the video screen in the courtroom less real to the viewer and thereby diminish

the gravity of the situation. See, e.g.. Note, The Criminal Videotape Trial: Serious

Constitutional' Questions, 55 Or. L. Rev. 567, 577-78 (1976).



1987] ALTERNATIVE TESTIMONY 179

of inaccuracies. The charge of child abuse carries its own sig-
nificant stigma. Defendants in these cases may find themselves
ostracized, whether they are guilty or not. Like children, they

too have ambivalent feelings and may decide, even though they
believe they will be acquitted, that it is better for the child, the

family and themselves to accept a plea agreement than to subject

everyone involved to a trial. These problems must also be weighed

in deciding the dimensions of the constitutional right of con-

frontation.
'"^^

The court found, however, that given all of the circumstances of the

case at bar, any erosion of the defendant's rights would be modest and

warranted by the protection of the child-victim.'^^ The Sheppard decision

reflects the crucial nature of the balancing of rights and protections; if

the assumptions upon which the balancing is predicated are erroneous,

an unwarranted and potentially dangerous modification of the legal

system may occur.
Almost all of the cases and scholarly writings addressing the con-

frontation issue raised by statutory or judicial testimonial schemes similar

to those in Indiana Code section 35-37-4-8 have been concerned with
whether the defendant can see the witness's demeanor so that he can

assist in his defense. Another element of confrontation, the witness being

confronted by the one he is accusing, is an equally important considera-

tion.''*^

When considered in light of social psychological theory, this second
element takes on even greater significance. It has been well documented

that guilt accompanying aggression toward another person is reduced when

the target of that aggression is "dehumanized." In other words, if we
conceive of another as not being human, the inhibitions against acting

aggressively are reduced."*^ Also, inhibitions against injuring another are

reduced when feedback from that other person is reduced. ''^^ In a classic
study involving electric shocks, subjects in a position to observe personally

the suffering of their victims were less likely to administer severe shocks. "'^

Similar phenomena have been observed in modern warfare: because the

enemy can be far away due to modern technology, there are diminished

feelings of guilt and remorse in those inflicting the harm.'"*^ While this

type of dehumanization might arguably be advantageous in time of war,

''^Sheppard, 197 N.J. Super, at 432, 484 A.2d at 1342.

'*'Id. at 431-32, 484 A.2d at 1342-43.

'''See, e.g., Mattox v. United States, 156 U.S. 237, 242-43 (1895).

'"'P. MiDDLEBROOK, SOCIAL PSYCHOLOGY AND MODERN LiFE 299-300 (1974).
''"Id. at 299.

'*'Id.

'''Id.



180 INDIANA LAW REVIEW [Vol. 20:161

its possible role in a legal system founded on a presumption of innocence

is questionable. When the unreahty of a large portion of what people,
especially children, view on television is coupled with this concept of

dehumanization, the consequences could be severe for a defendant tried

under the proposed closed circuit procedures. While we do not wish to
upset unnecessarily a witness already facing a difficult experience, we
also do not want to so distance a witness from the defendant that the

witness fails to sense the seriousness of the accusations and the con-

comitant stimulus to be scrupulously honest.

An additional issue, not widely addressed by courts or scholars, is
the effect of videotaped presentations and closed circuit television on

the presumption of the defendant's innocence. The concept that a defend-

ant is innocent until proven guilty is basic to the American system of

jurisprudence.'"*^ If the proposed procedures impinge upon this pre-

sumption, the defendant will be denied his constitutional right to a fair

and impartial trial. '^^ As noted by the court in Hochheiser v. Superior
Court, ^^' "[T]he presentation of a witness' testimony via closed-circuit

television may affect the presumption of innocence by creating prejudice
in the minds of the jurors towards the defendant similar to that created

by the use of physical restraints on a defendant in the jury's presence. "'^^

Thus, the procedures at issue might violate the same type of proscription

against bringing a defendant to trial in handcuffs or prison clothing.'"

Jurors involved in a trial using closed circuit testimony might conceivably

wonder why the child has to be protected from even being in the
defendant's presence. The presumption of innocence would then dis-

appear.

Another consideration regarding videotape and closed-circuit pro-

cedures is the possibility of an abridgement of the defendant's right to

a fair trial. '^"^ This concern is based on the possible distortion of evidence

of the witness' demeanor and therefore of credibility.'^^ As noted in

Hochheiser, the video camera in essence becomes the jurors' eyes by

selecting and commenting on what is seen.'^^ In addition, the video

'^'"The principle that there is a presumption of innocence in favor of the accused

is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation

of the administration of our criminal law." Coffin v. United States, 156 U.S. 432, 453

(1895).

''°See U.S. Const, amend. XIV, § 1.
'^'161 Cal. App. 3d 777, 208 Cal. Rptr. 273 (1985).

'"M at 787, 208 Cal. Rptr. at 279.
'''See, e.g.. Flowers v. State, 481 N.E.2d 100, 105 (Ind. 1985); see also Smith v.

State, 475 N.E.2d 27 (Ind. 1985).

''"•See Bulkley, supra note 2, at 659.

'''Id.

'5^61 Cal. App. 3d at 786, 208 Cal. Rptr. at 278.



1 987] ALTERNA TI VE TESTIMONY 1 8

1

equipment may make a witness look small and weak or large and strong,

and off-camera evidence is necessarily excluded.'"

This last criticism is especially relevant to Indiana Code section

35-37-4-8, because the statute provides for the presence in the videotaping

room of "persons whose presence the court finds will contribute to the

child's well-being. "'^^ However well intentioned such persons may be,
their body language or non-verbal cues may affect the child's testimony,
while the jury cannot see this influence. '^^ Additionally, if the camera

is focused primarily on the child's face to gain information about his

or her expression, it may not portray the witness' overall demeanor,
and vice versa. Also, the interposition of a screen between the viewer

and the evidence may reduce a juror's attention span and lessen his
concentration. '^° Finally, by legitimizing the status of the individual being

televised, the medium may bestow prestige and enhance his authority.'^'
This concept, termed "status-conferral,"'^^ might be especially relevant

where a child is involved, because under ordinary circumstances a child

does not have a great deal of status.

Other concerns raised by alternative testimony procedures include

possible infringement of a defendant's right to a jury trial'" and in-

terference with a jury's common-law right to question witnesses.'^'* The

defendant's right to a jury trial may be infringed upon because the
factors discussed above may interfere with the jury's decisionmaking
function'^^ The jury's right to question the witness is obviously curtailed

if the witness is removed from the courtroom.

IV. Conclusion

It is unquestioned that there have been problems with convicting

persons who sexually abuse children. However, it is questionable whether
modification of trial and evidentary procedures is the proper way to
deal with these problems. Furthermore, once it is decided that modi-

fications of trial and evidentiary procedures are necessary, the extent of

such modifications must be determined. If a legislative modification of

'5«lND. Code § 35-37-4-8(e)(2) (Supp. 1986).
'^'For example, the nod of a head or a smile by one outside the range of the camera

is necessarily lost to the jury, and in fact the jury will probably not even know such a

person is there.

'^Note, supra note 141, at 577.

'"'Hochheiser, 161 Cal. App. 3d at 787, 208 Cal. Rptr. at 279.

'"See Bulkley, supra note 2, at 659.

'"Although apparently not frequently exercised today, this common-law right of the

jury to question witnesses is apparently still good law. See Note, supra note 141, at 580.

'"/of. at 578-82.



182 INDIANA LAW REVIEW [Vol. 20:161

trial and evidentiary procedures will possibly abridge a defendant's con-

stitutional rights, the legislature should alter such procedures no more
than is absolutely necessary.

The trial testimony of a child-victim can possibly be made less
traumatic without resorting to drastic legislative measures. Reducing the

number of interviews with the child, reducing the number of continuances,
and preparing the child for the courtroom experience are examples of
measures that have been proposed as alternatives to the extreme interven-

tion of videotaped testimony or closed-circuit television.

Just how often the provisions of sections 35-37-4-6 and 35-37-4-8
will be invoked remains to be seen. Whether the provisions of the new
Indiana Code section 35-37-4-8 will pass constitutional muster also re-
mains to be seen. Given the constitutional implications of these procedures

for the defendant, however, these statutes should be closely examined

and any underlying assumptions should be adequately supported by

empirical evidence.