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New measure would allow children to testify on videotape

Tuesday, October 21, 2003

By Tom Barnes, Post-Gazette Harrisburg Bureau Chief

HARRISBURG -- Butler County District Attorney Tim McCune wants to give sexually abused children in Pennsylvania the same protection in court that child victims in 35 other states already have.

McCune came here yesterday to join other prosecutors, state legislators and officials of victims' rights groups to support two constitutional amendment questions concerning court testimony by abused children.

The two measures, which are on the Nov. 4 ballot, would permit a new state law allowing sexually abused children -- or a child who sees his parents' murder -- to testify via videotaped statements or closed-circuit television. Advocates say this would spare the children from having to endure the emotional trauma of testifying in open court while a criminal suspect glares at them.

"It's a tool that prosecutors need in their toolbox," said McCune, who also is president of the Pennsylvania District Attorneys Association. "There is no sicker feeling you can have in your stomach as a prosecutor than when you have to dismiss charges against an accused child abuser because a little person is afraid to testify in court."

State Sens. Jack Wagner D-Beechview, and Jane Orie, R-McCandless, joined Senate Judiciary Committee Chairman Stewart Greenleaf, R-Montgomery, in urging voters to approve the two measures. Orie said that in her 10 years as an Allegheny County prosecutor, "I saw firsthand the devastation of a child-abuse victim who had to face their abuser" in open court.

Greenleaf said he's spent years trying to get this change approved in Pennsylvania. A single constitutional amendment was approved in 1995 but was then overturned by the state Supreme Court, which said the issue had to be broken into two questions.

Under the November ballot proposal, a defendant would be allowed to be "confronted with witnesses against him" instead of "meet the witnesses face to face." A tandem question would empower the Legislature to write the new law next year. If either measure fails, then children would have to continue to testify in open court.

Greenleaf said, however, that even if the two changes pass in November, he expects a court challenge by defense attorneys before the Legislature begins drafting a new law.

Some defense attorneys have criticized the constitutional amendments, saying they would harm an accused person's right to face their accuser in court. They also noted that some children, either intentionally or unintentionally, make up accusations against adults.

Greenleaf disagreed with claims that the change would be unfair to defendants, saying a defense attorney could still confront the child who is making the abuse claims. Such a confrontation would take place while a deposition is being videotaped rather than in public in open court. The taped statement, most likely taken in a lawyer's office, wouldn't cause the emotional trauma for a child who has to look at the defendant, Greenleaf said.

But there is already a challenge to the two constitutional changes even before the referendum is held. Three criminal defense lawyers filed a suit in Commonwealth Court last week to stop voters from considering the two ballot measures.

They maintain the amendments haven't been properly described to the public, and could be used to keep a defendant from cross-examining his adult accusers -- not just children -- in open court. The lawyers claim the amendments violate constitutional rights of defendants and infringe on the powers of the judiciary and say the amendments would result in more cases "of wrongful convictions of the falsely accused."

Other critics have said that children often make poor witnesses who can be manipulated by a prosecutor during a videotaped conversation.

"It is an unfair limitation of a defendant's rights to not be able to actively and directly question the accuser, no matter what the age of the person involved," said one critic, Robert Havrilla of Pittsburgh's North Side.

But Greenleaf said the U.S. Supreme Court has upheld videotaped testimony by children in a case from Maryland, and urged Pennsylvania voters to apporve the constitutional changes.


Tom Barnes can be reached at tbarnes@post-gazette.com or 1-717-787-4254.

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