U. S. Supreme Court

In Pitts v. Mississippi, the court reminds us how to proceed when a child witness will not or cannot testify while the accused is in the courtroom.

Ordinarily, the Sixth Amendment’s Confrontation Clause “guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” Coy v. Iowa, 487 U. S. 1012, 1016 (1988). In child-abuse cases, however, that rule sometimes gives way. Consistent with the Sixth Amendment, a court may screen a child witness from the defendant when “necessary to protect [the child] 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.” 

Still, before invoking this procedure, a court must proceed with care. It must “hear evidence” and make a “case-specific” finding of “[t]he requisite . . . necessity.” Simply pointing to a state statute that authorizes screening, even one premised on “generalized finding[s]” of necessity, will not suffice. Because the Mississippi Supreme Court departed from these principles, we reverse.

In its remand, the court finished with 

Having resolved that much, we pause to underscore what we leave unresolved. Just because a constitutional error took place at trial does not necessarily mean a new one must be held. Even constitutional errors are sometimes subject to a “harmless-error” rule and do not require a new trial if the prosecution can show “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” This Court has held that the denial of the right to face-to-face confrontation is among those errors “subject to that harmless-error analysis.” Accordingly, on remand the State remains free to argue, and the Mississippi Supreme Court remains free to consider, whether the error in this case warrants a new trial under the harmless-error standard.

With this in mind, counsel may want to consider United States v. Anderson, 51 M.J. 145 (C.A.F.F. 1999); United States v. Bench, 82 M.J. 388 (C.A.A.F. 2021); United States v. Bickle, NMCM 9802066, 2002 CCA LEXIS 5, at *25 (N-M Ct. Crim. App. Jan. 11, 2002). United States v. Rodriguez-Rivera, 63 M.J. 372 (C.A.A.F. 2006) regarding some of the issues that can come up when dealing with child witnesses.

Cheers, Phil Cave.