Pitts v. Mississippi: Supreme Court appears to reaffirm Craig in a per curiam opinion

Maryland v. Craig, 497 U.S. 836 (1990), an important pre-Crawford case, held that in some circumstances a child witness may be allowed to testify against an accused at trial without being brought face to face with the accused; in Craig, the child was allowed to testify via one-way closed-circuit television.  A major question, which the Supreme Court has declined several times to address, has been whether Craig survives Crawford.  The results are perfectly compatible with one another:  Crawford established that witnesses against an accused must testify at trial, under oath and subject to cross-examination; Craig prescribes how that testimony may be conducted for a subset of witnesses.  The two decisions have co-existed for more than twenty years.  But they stand on radically different theoretical grounds.  Craig was issued in an era of balancing, and it was written by Justice O'Connor, a classic balancer.  It was a 5-4 decision, with the dissent by Justice Scalia, who tended to prefer hard-edged rules.  Crawford, written by Justice Scalia, adopted such rules for the Confrontation Clause, and clearly eschewed balancing; Justice O'Connor was one of the two dissenters.  So it's been an interesting question whether, if the Supreme Court took up the question, Craig would survive.  

Today the Court gave an answer, of sorts, in a per curiam summary reversal in Pitts v. Missisippi. Itts was accused of sexually molesting his young daughter.  At trial, the child, who was then four years old,  testified from behind a screen that permitted the judge and jury to see her but that obscured her view of the defendant; a Mississippi statute purported to give her the right to testify in this manner, and the trial judge applied it without holding an evidentiary hearing.  Pitts was convicted, lost on appeal, and then petitioned for certiorari.  The petition did not seek to have Craig overruled; indeed, it never even mentioned Crawford.  On the contrary, it argued that Mississippi stood alone in failing to adhere to Craig and Coy v. Iowa, 487 U..S. 1012 (1988), an earlier decision holding that use of a screen to shield witnesses from the accused was improper under the Confrontation Clause, but not absolutely foreclosing such use in another case.

The Supreme Court obviously fund the petition persuasive, because it reversed summarily.  Like the petition, the brief and unanimous per curiam did not cite Crawford and assumed that Coy and Craig are good law.  Here is how it began: 

      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.” Maryland v. Craig, 497 U. S. 836, 857 (1990).

It then went on to say, though, that "before invoking this procedure, a court must proceed with care."  Here the Mississippi court had failed to hear evidence leading to a case-specific finding of likely trauma, and so the judgment had to be reversed. The Court was emphatic on this point, allowing it to decide summarily and unanimously.  

Given that nobody in the case argued that Craig should be discarded given the radically different framework of Crawford, I do not think this brief, summary per curiam reversal forecloses the issue, but it does probably give a hint of how the Court would ultimately decide.  My own view, which I have often presented, sometimes in conjunction with Steve Ceci, is that very young witnesses – and the 4-year-old here would qualify – should not be deemed witnesses at all, though they are sources of evidence, and the accused should have a right of examination by a qualified forensic examiner, but not cross-examination at trial.

The Pitts Court cautioned that the Confrontation Clause violation might be deemed harmless error.  As I have indicated previously on this blog, I believe that the proper method of answering the harmless-error question is not to speculate as to  how effective properly held cross-examination might have been, but rather to consider the case as if the witness in question had not testified at all.

One other point:  The first paragraph of the opinion, quoted above, gives no indication that Craig might be extended to extenuating situations involving adult witnesses, and the implication appears to be to the contrary.  That's good news, I think.