State of Maine v. Blood

STATE OF MAINE UNIFIED CRIMINAL DOCKET
AROOSTOOK, ss DOCKET NO. CR 2020-40430

STATE OF MAINE )
)
VS. )
) ORDER ON STATE'S MOTION
) TO PERMIT CHILD TO TESTIFY
ANDREW BLOOD ) OUTSIDE THE PRESENCE OF
) THE DEFENDANT

Defendant is charged with Gross Sexual Assault, Class A. Before the Court is the

State's Motion to permit the child to testify at trial via 2-way closed circuit television or

other audiovisual electronic means from the "Aroostook & Downeast Children's

Advocacy Center" located in Fort Fairfield, Maine. The Defendant objects to the child

testifying in any manner other than at trial from the witness stand in the normal course

and method. The court conducted a hearing on the motion on March 23, 2022. The court

received testimony from Stacey Frost, LCSW, and Edward Buckley. The court also

received a copy of the Child Advocacy Center interview of the child as Defendant's

Exhibit 1, without objection. Based on the evidence presented, the court finds and orders

as follows:

Effective in October of 2021, the Maine Legislature enacted 15 M.R.S. §1321, which

provides in pertinent part:

"§1321. Child witnesses in certain sex crime cases

1. Testimony of a child outside the presence of the defendant. Upon motion by
the State prior to trial and with reasonable notice to the defendant, a court may
allow a child who is 14 years of age or younger to testify outside the presence of
the defendant pursuant to this section in a criminal proceeding concerning a crime
under Title 17-A, chapter 11 or 12 in which the child is the alleged victim.

2. Requirements for direct testimony outside the presence of the defendant.
Direct testimony of a child outside the presence of the defendant under subsection
1 must meet the following requirements:

A. The testimony must be conducted by way of 2-way closed-circuit
television or other audiovisual electronic means;

B. The testimony must occur at a recognized children's advocacy center
with only a victim or witness advocate present in the room in which the
child is testifying;

C. The opportunity for real-time cross-examination of the child must be
provided to the defendant's attorney after the child's direct testimony; and

D. The defendant must be able to observe the testimony of the child while
the child is testifying and must be able to communicate with the defendant's
attorney while the child is testifying."

The parties were unable to direct the court to any caselaw related to this new

statutory provision. The court was unable to find any such caselaw, but notes that there

is a federal provision related to child testimony that does have a body of caselaw that has

developed regarding child witness participation by alternatives to live in-court

testimony. See, 18 U.S.C. §3509(b).

The law affords the court discretion to permit remote testimony. 15 M.R.S.

§1321(1)("may allow"). Some record must be developed to establish the basis for the

court's decision in this matter, as the motion is contested. In addition, the court must be

mindful of the constitutional protections that ensure that a defendant has the opportunity

"physically to face" the any witnesses called to testify against him or her. United States

v. Cotto-Flores, 970 F.3d 17,37-38(1,t Cir. 2020)(quoting, Coy v. Iowa, 487 U.S. 1012, 1017
(1988). "The idea is that insisting that witnesses testify 'in the presence of the person

[they] accuse' helps ferret out the truth and lowers the risk of wrongful conviction." Id.

See also, Comment, 96 Cal. L. Rev., at 1120-1122 ("During private law-enforcement

questioning, police officers or prosecutors can exert pressure on the witness without a

high risk of being discovered. Courtroom questioning, in contrast, is public and

performed in front of the jury, judge and defendant. Pressure is therefore harder to exert

in court 11 )."

Even so, this constitutional right is not absolute. The Supreme Court held in

Man;land v. Craig, 497 U.S. 836, 857, 111 L. Ed. 2d 666, 110 S. Ct. 3157 (1990), that a State

may allow child witnesses in abuse cases to testify outside the presence of the

defendant if "necessary to protect a child witness from trauma that would be caused by

testifying in the physical presence of the defendant, at least where such trauma would

impair the child's ability to communicate ..." Id., at 7-8. "The requisite finding of

necessity must of course be a case-specific one." Id., at 855, 110 S. Ct. 3157, 111 L. Ed. 2d

666.

This court did not hear from the child. There has been no discussion with the child

about testifying, in any format or at any location. What has been presented is speculation

as to what the child's reaction might be to seeing the Defendant while testifying. In

contrast to the federal court decisions that involved an approval of remote participation

of child witnesses, there is no evidence in this matter about a fear of being in the same

room as the Defendant or an inability to testify, as opposed to a reluctance to testify,

which is not uncommon. See, United States v. Farley, 992 F.2d 1122, 36 Fed. R. Evid. Serv.
(CBC) 1304, 1993 U.S. App. LEXIS 10293 (10th Cir. 1993)(Child victim of aggravated

sexual assault was properly allowed to testify via closed circuit where court found, based

on testimony of psychologist who examined victim, that victim would be unable to testifiJ

because of fear and would likely suffer trauma if she did testify)(Emphasis added);

United States v. Carrier, 9 F.3d 867, 39 Fed. R. Evid. Serv. (CBC) 1138, 1993 U.S. App. LEXIS

28610 (10th Cir. 1993), cert. denied, 511 U.S. 1044, 114 S. Ct. 1571, 128 L. Ed. 2d 215, 1994

U.S. LEXIS 3076 (1994)(Testimony provided that the presence of defendant in courtroom

was children's primary source of fear and that his presence would cause them severe

distress and make them unable to testify accurately. The opinions were based the

children's frequent nightmares concerning testifying in his presence, and the counselor's

knowledge of their Native American tribe's culture, in which glaring or staring at or by

another is considered especially intimidating)(Emphasis added); and United States v.

Rouse, 111 F.3d 561, 46 Fed. R. Evid. Serv. (CBC) 559, 1997 U.S. App. LEXIS 6659 (8th Cir.

1997), cert. denied, 522 U.S. 905, 118 S. Ct. 261, 139 L. Ed. 2d 188, 1997 U.S. LEXIS 5990

(1997), reh'g, en bane, denied, 1997 U.S. App. LEXIS 12821 (8th Cir. May 29, 1997)(Five­

year-old was unable to speak when called as witness and stated in chambers that she was

afraid to speak in front of her uncles, six-year-old was found sobbing outside courtroom

and affirmed in chambers that she was crying out of fear of her uncles, nine-year-old

became so fearful before testifying that guardian ad !item would have had to physically

pull her into courtroom, and therapist testified that victims were afraid of

defendants). The court finds that the State has failed to produce any credible evidence

that the child would be unable to testify due to fear or anxiety caused by being in the
presence of the defendant. See also, United States v. Bordeaux, 400 F.3d 548, 66 Fed. R.

Evid. Serv. (CBC) 837, 2005 U.S. App. LEXIS 3728 (8th Cir. 2005), reh'g denied, reh'g, en

bane, denied, 2005 U.S. App. LEXIS 9866 (8th Cir. May 27, 2005)(Holding, District court

denied defendant his Sixth Amendment right to confront victim, female child, by

allowing her to testify via two-way closed circuit television during defendant's trial on

sexual abuse charges because district court found that victim's fear of defendant was only

one reason why she could not testify in open court; it did not find that victim's fear was

dominant reason).

In addition, the court notes that the interview of the child regarding the alleged

abuse at the Advocacy Center reflected a child that was not in fear of the defendant. The

child did engage in avoidant behaviors but there were no signs apparent on this record

that the child became distraught in discussing the defendant. Further, the child's

grandfather, with whom the child is exceptionally close, testified that the child expressed

excitement about a Christmas gift for the defendant when his name was inadvertently

brought up by the grandfather. This testimony reflected an affirmative lack of fear of the

defendant. See, United States v Moses, 137 F.3d 894, 1998 FED App. 68P, 49 Fed. R. Evid.

Serv. (CBC) 163 (CA6 Mich 1998)(Remote testimony by closed-circuit television violated

defendant's Sixth Amendment rights to confrontation; witness's own testimony

disavowed any fear of defendant).

In light of the foregoing and based upon this record, the State's motion is DENIED.

Dated: April 4, 2022
stice, Superior Court