Utah decides that Crawford v. Washington did not overrule Maryland v. Craig

State v. The Honorable Stephen L. Henriod, 2006 UT 11

Greg Jonas was charged with molesting his six-year old daughter. The State moved to allow the daughter to testify at trial via closed circuit camera in another room, as permitted by rule 15.5(2), Utah Rules of Criminal Procedure. The State claimed that requiring the child to testify in the physical presence of her father would cause serious mental and emotional strain. Judge Henriod denied the motion under Crawford v. Washington, and the State appealed.

In the supreme court, the State claimed that testimony by camera satisfied the Confrontation Clause, relying on a Maryland v. Craig, 497 U.S. 836 (1990). Jonas argued that Crawford v. Washington, 541 U.S. 36 (2004), overruled Craig.

Under Craig:

[W]here 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, the Confrontation Clause does not prohibit the use of a procedure that, despite the absence of face-to-face confrontation, ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby preserves the essence of effective confrontation.

Henriod, 2006 UT 11, ¶ 11 (quoting Craig, 497 U.S. at 857). Craig went on to uphold a Maryland statute that permitted children to testify by camera when the judge determined that testimony in the courtroom would result in the child suffering serious emotional distress such that the child could not reasonably communicate.

The supreme court decided that Crawford did not overrule Craig. It explained,

The Crawford majority opinion not only failed to explicitly overrule Craig, but also failed to even mention it. Moreover, we do not believe Crawford implicitly overruled Craig because neither the majority nor the concurrence even discussed out-of-court testimony by child witnesses. By its own terms, the Crawford holding is limited to testimonial hearsay.

Henriod, 2006 UT 11, ¶ 16. The court also noted that other jurisdictions to consider the issue had decided that Crawford did not overrule Craig.

The court’s opinion concluded by noting that the court was not ruling that Jonas’ daughter could testify by camera, or even that rule 15.5 satisfied the requirements of Craig. It was only holding that Craig was not overruled by Crawford. Thus the question of whether rule 15.5 complies with Craig and with the Confrontation Clause remains open for debate.