Issue: Whether a defendant accused of sexually abusing a child has the right to be present at a pretrial hearing at which the child is questioned to determine competency to testify at trial

Index Topics: Child Abuse/Child Witnesses (protection of child witnesses)

Facts: The defendant was charged with first degree sodomy of three young children. At a hearing to determine the competency of the children to testify, the trial court denied the defendant's request to be present at the hearing to assist his counsel in cross-examination. Only the defendant's attorney was allowed to be present. At trial, the children testified and the defendant was convicted and sentenced to 20 years imprisonment. On appeal, the Kentucky Supreme Court reversed because of the defendant's exclusion from the pretrial competence hearing. The Kentucky Attorney General petitioned the US Supreme Court for review which was granted.

APA's Position: APA submitted a brief, arguing that: (1) even assuming defendants have a right to personally confront adverse witnesses in pretrial hearings to determine the competency of witnesses to testify, it may be dispensed with when necessary to protect child victims of sexual abuse from substantial, identifiable trauma; and (2) because scientific data regarding the effects on child victims of sexual abuse of confronting their alleged abusers in the courtroom are sparse and inconclusive, case-by-case determination of the effects on individual children is most appropriate.

Results: In a 6-3 decision, the US Supreme Court held that the defendant's rights under the Sixth and Fourteenth Amendments were not violated by his exclusion from the competency hearing. With regard to the Sixth Amendment, the Court held, as APA had argued, that the primary interest secured by the confrontation clause was the right of cross-examination which was designed to promote reliability in truth finding functions of a criminal trial. In this case, the defendant retained the right to cross-examine the witnesses as to their competency, even though he was excluded from the court's pretrial competency hearing. The language of the opinion tracked the structure and text of the APA brief and the majority cited the APA brief.