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Closed Circuit Testimony

In a sexual assault case, a child witness is not automatically prohibited from testifying via closed circuit video outside of the physical presence of the defendant. However, the trial court the must make a finding that the reason for the closed circuit testimony furthers a public policy and the testimony is reliable. The physical and psychological welfare of the testifying child may outweigh the defendant’s right to personally confront their accuser. This finding of necessity must be case-specific and many requirements must be met. · Maryland v. Craig, 497 U.S. 836 (1990)

In a sexual assault case, trial court needs to make specific findings on the record to determine if close circuit testimony is appropriate. The evidence must relate to the particular child who is giving testimony. The South Carolina Supreme Court has adopted the Craig test. · State v. Lewis, 324 S.C. 539 (1996)

A defendant has a right to in-person confrontation and this should not be limited by electronic testimony (e.g., Skype) unless there is an important public policy reason or an exceptional circumstance. “[I]n the absence of an important public policy or at least an exceptional circumstance, modifying a defendant's truest exercise of the Sixth Amendment right via in-person confrontation is inappropriate.” The Court of Appeals did not create a specific test for the use of closed circuit testimony. This case was decided before the COVID-19 pandemic. See also S.C. Code Ann. § 16-3-1550(E) (“The circuit or family court must treat sensitively witnesses who are very young, elderly, handicapped, or who have special needs by using closed or taped sessions when appropriate. The prosecuting agency or defense attorney must notify the court when a victim or witness deserves special consideration.”). · State v. Johnson, 422 S.C. 439 (Ct. App. 2018)


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