In the excerpt below, the Court finds a "compromise" betwwen a criminal defendant's right to confront his witnesses, and the witnesses' need for protection.
STATE v. JOHNSON
2011 Ohio 3143
Court of Appeals of Ohio, First District, Hamilton County.
Date of Judgment Entry on Appeal: June 29, 2011.
{¶61} While neither this court nor the Ohio Supreme Court has addressed whether a defendant's confrontation right is violated by the presentation of an adult witness's testimony by two-way closed-circuit television, multiple state and federal courts have read Craig's references to "an important public policy" and "an important state interest" as suggesting a general rule that is not limited to protecting child victims of sexual offenses from the trauma of testifying in a defendant's presence. These courts have likewise concluded that even though Craig concerned a statute that permitted child witnesses in sexual offenses to testify by one-way closed-circuit television, the state need not point to a statute that codifies the important policy
interest it seeks to further before it may invoke Craig.
{¶62} In this case, the trial court implemented the two-way closed-circuit television procedure based on its own observations, as well as the assistant prosecuting attorney's observations, that a large number of the defendant's friends and family had been intimidating three witnesses. The trial court's comments on the record reveal that it was not predisposed to permitting the state to present the testimony by two-way closed-circuit television, but that it permitted the testimony only out of necessity.
{¶63} This court is aware that witness intimidation is a widespread problem in Hamilton County, and it is disruptive of the administration of criminal justice. The United States Supreme Court itself has recognized that "[w]hen defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce." Indisputably, James's, Leaks's, and Higgins's testimony was critical to the state's case against Johnson. The trial court was understandably concerned that these witnesses be able to testify in a neutral setting because witnesses who are intimidated provide less reliable testimony, which defeats the truth-seeking goals of confrontation. The trial court's use of the two-way video procedure was necessary to further the public policy of justly resolving the criminal case, while at the same time protecting the well-being of the state's witnesses.
{¶64} The trial court's use of the two-way closed-circuit television procedure additionally preserved the reliability of these witnesses' testimony. James, Leaks, and Higgins appeared with their counsel in the Hamilton Justice Center, they were sworn by the court, they gave testimony, and they were subjected to a rigorous, live cross-examination before the jury, Johnson, defense counsel, and the court. The jury was able to assess these witnesses' demeanors while they testified, and Johnson and his counsel were able to weigh the impact of their testimony on the jury as counsel crafted her cross-examination.
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