Federal Evidence Review

In a civil damages action alleging sexual abuse of child victim, the child victim could testify against her abuser, who was her biological father, via a two-way closed-circuit television so the jury could observe the victim’s demeanor and the defendant’s attorney could cross-examine the victim contemporaneously; good cause for this alternative to in-court testimony was supported by the trial court’s conclusion that trial testimony would be “too traumatic,” in Parkhurst v. Belt, 567 F.3d 995 (8th Cir. June 9, 2009) (No. 08-2668).

Federal Rule of Civil procedure 43(a) requires that testimony be in open court. The rule also allows for “good cause in compelling circumstances,” that the court may decide to allow open court testimony from a witness at a different location that can be broadcast contemporaneously with the court. This step may be taken only if the court ensures that “appropriate safeguards” are in place. In a recent case the Eighth Circuit assessed some of the standard “safeguards” and grounds for good cause. The circuit’s treatment of the issue, however, suggests a trial court’s decision to act under Rule 43 will meet with considerable scrutiny.

In the case, defendant Belt, the victim’s biological father and abuser, was sued for damages on behalf of the victim by the Parkhursts, her adoptive father and her biological mother. At the trial, evidence was presented to the jury that included testimony that the victim’s conduct had changed dramatically after her visits to the defendant over two summers and that she demonstrated great anxiety about future visits. In addition, medical records suggested the victim was sexually abused. Her grandmother and a psychiatrist testified that the victim had identified the defendant as her abuser. The victim also testified at the trial from a remote location transmitted via a closed-circuit to the courtroom, so that the court and jury could observe the victim and she could be examined by the parties at the remote location. The defendant had challenged this procedure for receiving the victim’s testimony. After the jury ruled for the plaintiff, the defendant appealed based on the victim testimony from a remote location.

The Eighth Circuit determined that the Sixth Amendment Confrontation Clause was not a consideration in the case because it was limited to criminal cases. However, this did not mean that there were no standards to apply in permitting a witness to participate in trial from a remote location. In addition to Rule 43(a), the circuit cited FRE 611(a), which allows the trial court to “exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to . . . protect witnesses from harassment or undue embarrassment.” The circuit found no error in the trial court’s assessment that compelling circumstances existed for the victim to testify via the video arrangement. As explained by the circuit:

“The district court followed [Fed. R. Civ. P.] Rule 43 by examining [victim] H.P. and determining that compelling circumstances justified her testimony by closed circuit television. As the court explained, ‘I was convinced after talking with her and discussing with her and having her break down on a couple of occasions that it would not be in her best interests, it would be too traumatic to have her testify in the courtroom.’ The need to protect the welfare of an abused child qualifies as a compelling circumstance.”

Parkhurst, 567 F.3d at 1003. (citing United States v. Rouse, 111 F.3d 561, 568 (8th Cir. 1997) (defendant's right to confront witness “is not absolute and must accommodate the State's compelling interest in the protection of minor victims of sex crimes from further trauma and embarrassment”) (quotation omitted)), cert. denied, 522 U.S. 905 (1997).

In addition, the circuit also noted that the trial court did not shirk its duty of providing appropriate safeguards:

“The district court also ensured that appropriate safeguards were instituted. Indeed, the procedure followed at trial was nearly identical to that allowed by federal criminal statute in proceedings involving an offense against a child. See 18 U.S.C. § 3509(b)(1)(D). Here, the jury could listen to H.P. and observe her demeanor, Belt's attorney was able to cross examine H.P., and the transmission was instantaneous. Moreover, even if it had been error to make use of this technology, any error would have been harmless given the overwhelming evidence presented at trial. See Fed. R. Civ. P. 61.”

Parkhurst, 567 F.3d at 1003 (citing Hall v. Arthur, 141 F.3d 844, 849 (8th Cir. 1998)).

The Parkhurst case provides useful guidance on the application of FRE 611(a) and Fed. R. Civ. P. 43 for the admission of two-way closed-circuit television testimony.