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Pennsylvanians have entered the video age, at least when it comes to courtroom testimony. State voters last week approved two amendments to the state Constitution that will allow traumatized child-witnesses to testify by video or closed-circuit television. The vote gives the Pennsylvania General Assembly a green light to make it a law. Thirty-seven states in the last decade have passed laws allowing some form of alternative testimony for traumatized child-witnesses. “It’s a pity we’re not at the forefront, but at the back end on this,” said Philadelphia District Attorney Lynne Abraham, who prosecuted one of the early cases that sparked the debate in Pennsylvania, Commonwealth v. Davis, nos. 2431-2437 (Philadelphia Ct. C.P. 1989). In Davis, a judge allowed the videotaped testimony of a 5-year-old child who allegedly saw her father shoot her mother several times. The state Supreme Court threw out the conviction. The father was retried when the girl, the sole witness, was old enough to testify. The case added to the debate on alternative methods of child-witness testimony that began with the U.S. Supreme Court’s landmark decision in Maryland v. Craig, 58 U.S.L.W. 5044 (1990). That decision paved the way for states to begin adopting reforms. The question was put to Pennsylvania voters in 1995 and passed. But lawyers who opposed the reforms challenged the ballot questions and the state high court threw out the results. ‘Electronic prosecution’? The debate is still going on. This time the opposition lost a last-minute request for an injunction just weeks before the election. Opponents plan to take the issue to the state’s high court. “They use the heartfelt concern about a young, traumatized child-witness to broad-brush our right to face our accusers,” said John G. Bergdoll, a York, Pa., solo practitioner. “What’s actually being proposed here is the beginning of electronic prosecution.” The ballot posed two constitutional questions. First, whether a criminal defendant’s right to “meet the witnesses face to face” should be changed to “be confronted by the witnesses” to conform with the U.S. Constitution. And, second, whether the state Legislature should be able to enact laws that allow a traumatized child-witness to testify by closed circuit or videotaped deposition. “The whole point of ‘face to face’ is to put a witness under pressure to tell the truth,” asserted Gerald Grimaud, a solo practitioner in Tunkhannock, Pa. He said that a child’s fear may be not so much to face the accused, as it is to lie while facing the accused. “They are acting like children are being beaten up in court,” said Grimaud. “They’re not. Judges sit there and moderate and protect the witness.” Abraham countered, “This is not an across the board every kid gets to testify in camera. These will be carefully selected cases by the court.” McAree’s e-mail address is [email protected].

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