The Indiana Lawyer has a story on HB 1215 recently signed into law by Governor Mitch Daniels. The bill purports to allow child molestation victims to testify by closed circuit television in order to avoid the trauma of testifying before the person accused of molestation. The law will take effect on July 1st.Here is the federal version of the confrontation clause contained in the 6th Amendment:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.Here is Indiana's version, Article I, Section 13(a)
Section 13. (a) In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury, in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor.In Brady v. State, the Indiana Supreme Court in 1991 in a 3-2 decision dealt with the issue of whether allowing testimony by child molestation victims by closed circuit television cameras violated the confrontation clause of the federal and state constitutions. The Court said,such testimony would be allowed under the federal constitution, but that it is not allowed under the more restrictive "face to face" language found in Indiana's Confrontation Clause. The dissenters suggested that the Indiana framers intended to copy the federal confrontation clause and did not mean to give more protection to those accused of a crime than what is found in the Federal Constitution. Frankly, I don't buy that argument. It's obvious the Indiana framers of the constitution went out of their way to use the phrase "face to face." The dissenters simply want to read the words out of the constitution, which approach is judicial activism. That doesn't change because it is for a cause that many conservatives would applaud.
Just passing a law doesn't change the Constitution. If the General Assembly wants to allow closed circuit testimony by child molestation victims, it needs to amend Indiana's Constitution.