Witness Allowed to Testify Behind Screen in Criminal Sexual Conduct Trial

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LawyerCentral.com, January 19, 2012 - MICHIGAN -  

The Michigan Supreme Court has ruled against hearing an appeal from a sexual-assault trial where a screen was used to block a witness from seeing the man accused. At issue is whether the placement of the screen deprived the defendant of his constitutional right to confront his accuser.

In a brief statement, the Supreme Court simply noted that it is "no longer persuaded that the questions ... should be reviewed." However the significant constitutional issues raised by the used of the screen remain.

Here Ronald Rose, a western Michigan man faces at least 25 years in jail after being convicted of sexual assault in a 2008 trial. Rose was accused of showing pornographic pictures to his wife's 8-year-old sister and brother, and sexually abusing the girl. During the trial the one-way screen was used to keep the 8-year-old from seeing Rose. However, the screen was not used when another young witness testified. The screen - rather than providing a legitimate means to protect juveniles who may be anxious about testifying in court - was more like a theatrical prop - "the most prejudicial thing he'd ever seen in a criminal trial," stated Rose's Michigan sex crimes defense lawyer Scott Grabel.

The U.S. Constitution provides many protections designed to ensure criminal defendants are given a fair trial. One of these protections is the 6th Amendment, which provides that a defendant is entitled to be confronted with the witnesses against him. Where a minor is involved, MCL 600.123 provides alternative procedures for presenting child witness testimony, while accounting for the accused's constitutional rights. Using a screen is not one of those procedures expressly permitted. Here, Rose was denied his constitutional right to confrontation and deserves a new trial.

Additionally, as provided in the dissenting opinion by Supreme Court Justice Marilyn Kelly "By allowing the screen to be placed between the witness and defendant, the court highlighted the witness's apparent fear of directly facing defendant...Permitting the screen sent the jury the message that the court deemed the witness to be worthy of protection from the defendant." Other alternatives - such as videotape testimony - are less likely to prejudice the jury.

Justice Kelly continues that by leaving the appeals court decision intact, the Supreme Court has allowed a "constitutionally defective procedure for shielding child witnesses from their accusers despite the fact that the legislature has endorsed other constitutionally acceptable means of doing so."

The trial court did nothing to counterbalance the prejudicial effect of the screen - it did not instruct the jury against drawing inferences about Rose's guilt based on the use of the screen, allowing the bias created by the use of the screen to potentially impact the juror's deliberations.

Although the Michigan Supreme Court did not rule on whether use of the screen is a violation of a defendant's due process, some procedures are "so inherently prejudicial that the are generally not permitted at trial." Here, the use of the screen meets this test. As stated by Justice Kelly, using the screen branded defendant "with an unmistakable mark of guilt."

Attorney Scott Grabel is a member of the national attorney network on LawyerCentral.com.