Bill proposes limiting questioning by pro se defendant in Sex Assault cases

[speltwon]

Imo, it's well intentioned but clearly unconstitutional. Bill proposed in response to a tragic incident, but it doesn't make it any less constitutional (see: 6th amendment confrontation clause)...


http://seattletimes.nwsource.com/html/politicsnorthwest/2014299204_billlimitingprosedefendants.html
A bill that could prevent sex-crime defendants who represent themselves from directly questioning their accusers in court passed the House Tuesday and is now on its way to the Senate.

The bill, HB 1001, requests the state Supreme Court adopt rules by the end of July that would limit how pro se defendants accused of sex offenses cross-examine their accusers. It passed the House 92-0.

Kirkland Democrat Rep. Roger Goodman, the lead sponsor of the bill, said on the floor that he decided to introduce the legislation after a recent incident in which a 21-year-old woman threatened to jump off the King County Court House rather than face questioning by the man charged with raping her. She was led to safety after talking with Seattle police negotiators.

Under the bill, the court could restrict the manner and means a pro se defendant questions his accuser in court if it found the victim would suffer serious emotional or mental distress from the cross-examination. The bill would only apply to cases where the pro se defendant is accused of a sex offense.

[AlabamaLibrul]

1. It's not unconstitutional, it prevents intimidation. Cross-examination without intimidation is still

allowed.


"The pro se defendant would have several options, including having a court-approved individual cross-examine the accuser using the defendant's questions, asking the questions himself while seated a distance away from the victim or conducting the questioning from another room via video hookup."

Or, of course, they could get a lawyer and let them ask the questions, instead of trying to scare a rape victim.

[speltwon]

4. I disagree

The confrontation clause is there for a reason, and there is a reason it's called "confrontation" and not "gentle questioning". Like many other discussions, rights compete with each other. I tend to lean towards defendant rights. Being a defendant in a sex assault case is one of the most egregious crimes one can be accused of (and remember, she or he may be a rape victim or not. The person MAY be innocent. We must remember that, it's a bedrock of our justice system), and one that almost instantly turns people off to discussion of defendant right. Lots of alleged victims run the risk of being "scared" by pro se questioning - robbery victims, for instance. Yet, we still allow even alleged mafioso the right to question witnesses against them.

[AlabamaLibrul]

7. (can't think of a witty title, so here it is)

There are already protections against harassing questioning or other actions that may seem to cross over into interrogation. For example, you can't badger the witness or start screaming at them.

Presumably, having the person who raped you (and we're assuming guilt right this second) standing about 2ft from your face, essentially calling you a liar, is very stressing. Even having the defense lawyer of an ultimately innocent defendant question you is humiliating, but generally accepted to ensure justice.

Also, the Supreme Court has already ruled in Delaware v. Fensterer the following:

"Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish."

http://scholar.google.com/scholar_case?case=11250065932511666215&hl=en&as_sdt=2&as_vis=1&oi=scholarr

[speltwon]

10. I agree

and there ARE exceptions to direct confrontation. One example is for (young) children who are alleged violent crime (often sex assault) victims. It's frankly a bit paternalistic to treat adult women (most sex assault victims are women) the same as children, btw.

Let's also rememmber that some of the most egregious innocent people being convicted cases stemmed from such cases with (specifically) child sex "victims" such as the McMartin case.

I agree 100% that there are limits to badgering, etc. This is entirely different. This is not based on case specific facts such as that. This is a blanket prohibition on questioning by the accused. It tries to establish a "sex assault" exception to the 6th amendment. That is wrong, and it amazes me that it passed 92-0 but that's a function of politics. I suggest many legislators KNOW this is unconstitutional but don't want their no vote used against them in campaign rhetoric. Thus, as is often the case, they will pass bad legislation in a kneejerk manner pending a horrific incident, and then let the courts correct their actions.

That's a pragmatic way to look at it, and one I fear is correct.

Again, I defer to the bill of rights. It doesn't say "right to confront one's accuser... unless one is accused of sex assault in which case - screw you".

[AlabamaLibrul]

11. But the Constitution and its amendments defer to the SCOTUS, which is clear on this n/t

[speltwon]

12. They are not at all clear on this

It has long been the case that badgering, leading (although this is permissible with so called "hostile witnesses) etc are prohibited. The SCOTUS has never ruled that being accused of a sex crime eliminates your 6th amendment right to cross examine pro se. Never.

[AlabamaLibrul]

14. "not cross-examination that is effective in whatever way, and to whatever extent, the defense might

wish." How is that not at all clear? The questions may be asked by the accused from a place (including in the same room) that lacks direct intimacy with the accuser, or over video, or by a court-appointed questioner. The defense might want more, but they are guaranteed only the right to an effective cross examination. Not to whatever extent they wish, which in the case of directly confronting an accuser like that, only serves to intimidate.

edit: accuser --->questioner

[speltwon]

17. and that's not the case here.

All that is being established is that Sex Assault defendants have the SAME right to cross examine as OTHER defendants. It is this law that is trying to carve out a sex assault exception to the 6th amendment. The defense (who are against this law btw) merely wants the SAME right that other criminal defendants have. Nothing more, nothing less. They don't want rights chipped away because their particular crime is especially abhorrent and the (alleged) victims more sympathetic. The legislature is trying to dilute constitutional rights of criminal defendants based on the type of offense they are accused of.

[backscatter712]

13. The point is to allow the accuser to ask questions of witnesses to help the court determine guilt.

He can do that from another room by video-conferencing, or have an attorney do it. He can still ask questions. His rights would not be violated.

[speltwon]

15. More specifically

The right is to allow the accused to confront his accuser so the court (the finder of fact usually being a jury) can assess the crediblity of each and every witness/victim... or more properly alleged victim/witness. There is a reason that witnesses and victims are examined on direct, cross examined, etc. in real time so that it's more difficult to fabricate etc. Cross examination and direct examination are vital tools that help jurors assess the credibility of a witness. They are allowed to, and should, take note of not just what is said, but how it's said, emotional reactions, etc. That ALL goes to assess the credibility/trustworthiness of a witness. One doesn't have to watch 12 angry men, or A Few Good Men to understand this. It's a fundamental bedrock principle that witnesses SHOULD be subject to this type of questioning. There is no sex assault exception to the 6th amendment. We don't support (or at least I don't) a terrorism exception to the constitution. Same principle

[arcane1]

2. I wonder why it would only apply to sex offenses?

I can't imagine most people would be immune from distress when being questioned by someone who tried to kill them, or tortured them, etc. :shrug:

[speltwon]

5. That's exactly why the founders put in the confrontation clause in the 6th amendment

There is no rape exception to the 6th, just like there isn't an accused terrorist exception to the 4th or 5th amendments. Victims and witnesses are not immune to distress when being confronted by the person they accuse of a crime. It's an element of criminal trials that has always existed. Yet, since the justice system is supposed to protect the rights of the accused who may in fact be innocent, the right of the accused to confront their accuser is one of the paramount bedrock rights in our bill of rights.

[AlabamaLibrul]

16. I would support that, and so would the SCOTUS n/t

[rug]

3. Why not put a leper's bell on the defendant while you're at it?

This type of mob-driven legislation presupposes both the existence of a crime and a victim who needs added protection.

The whole purpose of a trial is to establish if either exists.

[speltwon]

6. Exactly

Many of the responses to this story assume that the accuser IS a victim and that the defendant "did the crime". The trial is supposed to be about helping to determine if that in fact is the case, with the presumption of innocence until it has been proven. That's bedrock. Yes, many victims and witnesses will have to suffer stressful questioning. That's why the confrontation clause is put in there. W.o that type of questioning it is easier for false allegations to be made, and for innocent people to be imprisoned. Many a victim/witness has either broken down or recanted or more often been shown to be less than credible under vigorous questioning and then the jury gets to take that in when they make their decision.

[Name removed]

8. Deleted message

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[AlabamaLibrul]

9. See #7, Delaware v. Fensterer n/t

[speltwon]

18. Which does not at all establish the validity of this law

Sex Assault defendants should have the SAME rights to confront as any other accused. That's all. Nobody is denying that certain types of questioning are prohibited (such as badgering). What is NOT the case is that because somebody is an accuser in a sex assault case that any questioning by a pro se defendant is tantamount to badgering, etc. Have you ever been cross examined? I have. It's not supposed to be comfortable. It often isn't.