On June 28, 2024, the Iowa Supreme Court made a rather surprising and disturbing ruling in State v. White: allowing child witnesses to testify through a one-way closed-circuit television system violates a defendant’s confrontation rights under the Iowa Constitution.[i] The White decision undermines both federal and state precedent and directly contravenes public policy. Compelling a child to testify in the presence of a defendant has troubling consequences for future child physical and sexual abuse cases. Iowa Code § 915.38, now invalid according to the Iowa Supreme Court, successfully protected child witnesses by allowing them to virtually testify.[ii] It seems that the best course of action would be to strike the White decision and reinstate the constitutionality of Iowa Code § 915.38.

Derek White lived with his partner Donna Reisdorfer and their children; including White’s sons M.W. and J.W., and Reisdorfer’s son D.C.[iii] Authorities apprehended and charged White and Reisdorfer with neglect and child endangerment causing bodily injury after a social worker discovered severe bruising on two-year-old D.C.’s “face, ear, neck, shoulder, back, thighs, and ankles.”[iv] As trial approached, the state filed a notice of additional witnesses which stated that White’s two sons,  M.W. and J.W. (both under age ten) would testify through a one-way circuit television system, unable to see the defendant.[v] According to Iowa Code § 915.38, “upon its own motion or upon motion of any party, a court may protect a minor . . . from trauma caused by testifying in the physical presence of the defendant where it would impair the minor’s ability to communicate, by ordering that testimony be taken in a room other than the courtroom. . . .”[vi] At trial, the jury found White guilty as charged, and on appeal to the Iowa Supreme Court, White argued “the procedure used for the testimonies of M.W. and J.W. violated his right of confrontation under article 1, section 10 of the Iowa Constitution.”[vii]

The Iowa Constitution and the Sixth Amendment of the United States Constitution feature Confrontation Clauses that provide the accused “the right . . . to be confronted with the witnesses against him” in a criminal proceeding.[viii] The Clause’s central purpose is to ensure the evidence against a defendant is subject to “rigorous testing in an adversary proceeding” before a trier of fact, and is “served by the combined effects of the elements of confrontation: physical presence, oath, cross-examination, and observation of demeanor.”[ix] Historically, confrontation has enhanced the accuracy of factfinding and is “generally satisfied when the defense is given a full and fair opportunity to probe and expose [testimonial] infirmities [such as forgetfulness, confusion, or evasion] through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony.”[x] However, the White court made a prominent distinction between the Iowa and Federal Constitution(s) in adopting an originalist interpretation of “confrontation” as the framers would have understood confrontation to mean in 1857. “At the time when our constitution was adopted, the right of confrontation was understood to mean that the accused must be allowed to confront trial witnesses face-to-face.”[xi] As the dissent noted, “Originalism has its limits. It cannot account for a technology that didn’t exist in 1857. . . and a type of case that would not have been brought in 1857.”[xii] Applying a historical perspective to a modern legal problem is both unwise and unhelpful. 

The United States Supreme Court addressed the conflict between the confrontation rule and child victim and witness testimonies nearly thirty-five years ago in Maryland v. Craig. The defendant Craig, tried for the sexual abuse of a six-year-old, argued that a one-way closed-circuit testimony violated her confrontation rights according to the Sixth Amendment.[xiii] The Court first clarified that the State must first make an “adequate showing of necessity” that warrants usage of the one-way circuit television system, so if a child would suffer emotional distress by having to testify in the same courtroom with their abuser “such that they could not reasonably communicate,” that warrants usage of the televised system.[xiv] Ultimately, the Court stated, “although face-to-face confrontation forms the core of the Clause's values, it is not an indispensable element of the confrontation right. . . a State's interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant's right to face his or her accusers in court.”[xv] Child victims, witnesses of violent crime, and sexual abuse would not always be required to testify in the direct presence of their abuser. 

From a public policy perspective, it is not difficult to imagine why state legislatures have specifically mandated the protection of child victims and witnesses of violent crime and sexual abuse. Prohibiting virtual testimony for child witnesses risks traumatizing the child, and consequently, jeopardizing the criminal justice process. If a face-to-face confrontation would cause significant emotional trauma to a child witness and impair their ability to testify, the entire purpose of the Confrontation Clause would be destroyed. The problem with the White decision is not the reliability of a child witness’ testimony, but rather, the rejection of a thirty-five-year precedent that both safeguards the well-being of a child and preserves witness reliability in a court of law. Failure to protect a child witness, especially within the context to severe physical violence and sexual abuse, has dangerous implications for a child’s welfare.

The Iowa Legislature adopted Iowa Code § 915.38 to account for cases just like White, and every other state has passed a similar statue.[xvi] The Iowa Supreme Court can still balance the Iowa Constitution’s Confrontation Clause and protect children’s rights in reinstating its former precedent and upholding Iowa Code § 915.38. The court’s originalist interpretation of the Confrontation Clause is inapplicable and incompatible with the pursuit of a fair criminal justice process.