2003 developments in the Sixth Amendment: black cats on strolls

"A black cat crossing your path signifies that the animal is going somewhere." (1)

Introduction

In this space last year, Major Christina Ekman (2) discussed new developments in the area of discovery. (3) Similar to last year, (4) development in this area has been slow. (5) As a change of pace, therefore, this article focuses on the Sixth Amendment's rights to confrontation (6) and the effective assistance of counsel. (7) Readers will notice some discussion of cases after 2003, but that is because of the newer cases' relative importance. While two cases represent change, the majority clarify fairly clear law. These new cases are like "black cats." The lesson from these cases is that, on whatever side the practitioner is on, a black cat may be crossing the path, but the practitioner should not read too much into it. The proper approach in reading these cases is to realize that the cat's color does not necessarily portend ill tidings. The cat may be just on a stroll.

On the issue of confrontation, the Court of Appeals for the Armed Forces (CAAF), spoke only once in United States v. McCollum, (8) but the case represents a center of gravity in the area of remote child testimony. (9) The case is especially significant because it represents the CAAF's first review of the validity of Military Rule of Evidence (MRE) 611(d)(3), (10) promulgated after the court's decision in United States v. Anderson. (11) The CAAF's decision must be understood in context; therefore, a brief discussion of the roots of remote testimony will precede commentary on the case. Also regarding confrontation, the U.S. Supreme Court recently issued the landmark decision of Crawford v. Washington. (12) Although the Court's ruling came down on 8 March 2004, the decision's importance requires immediate discussion. Perhaps by next year, some of the opinion's ramifications will have been fleshed-out; the reader may safely expect a reprise of Crawford. (13)

With respect to the effective assistance of counsel, the Court, the CAAF, and the service courts have spoken a number of times on a number of nuances. In pretrial investigation and trial tactics, the Air Force Court of Criminal Appeals, (14) the Navy-Marine Court of Criminal Appeals, (15) and the CAAF (16) issued important opinions, none of which covered precisely the same issue. The Army Court of Criminal Appeals issued an important decision in United States v. Cain (17) in the area of conflicts that the CAAF recently reversed. The Supreme Court and the Army Court pushed forward the jurisprudence concerning effective assistance of counsel in sentencing in Wiggins v. Smith (18) and United States v. Kreutzer, (19) respectively. The Navy-Marine Court also had its say in this area in two cases: United States v. Starling (20) and United States v. Wallace. (21) Finally, the CAAF spoke on post-trial assistance of counsel in United States v. Dorman, (22) a case which clarified the duties of trial defense counsel during appellate review. While there are a number of cases in the area of effective assistance of counsel, trends are difficult to identify given the concept's breadth. Nonetheless, several important lessons can be drawn from each case; this article discusses each one.

When Watching Television Is Necessary: Remote Live Testimony

The Supreme Court in Maryland v. Craig (23) faced the issue of whether a witness who testified via one-way closed circuit television satisfied the Confrontation Clause. In holding that a Maryland statute providing for such a procedure passed constitutional muster, the Court declared, "[T]hough we reaffirm the importance of face-to-face confrontation with witnesses appearing at trial, we cannot say that such confrontation is an indispensable element of the Sixth Amendment's guarantee of the right to confront one's accusers." (24) The basis for the Court's decision was its affirmation of the "important public policy" undergirding the Maryland statute: protecting "the physical and psychological well-being of child abuse victims." (25) To invoke the remote testimony procedure, the Court declared that the trial judge must "hear evidence and determine whether use of the one-way closed circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify." (26) To satisfy this burden, the Court requires two particular findings: (1) the presence of the accused would traumatize the child witness; and (2) the emotional distress must be more than de minimis. (27) Once a trial judge makes these findings, the public policy interest "may be sufficiently important to outweigh, at least in some cases, a defendant's right to face his or her accusers in court." (28) That public policy interest notwithstanding, the Court still requires the testimony's reliability to be otherwise assured; that is, the witness must be under oath, subject to cross examination, and observable by the finders of fact. (29)