Law That Lets Children Testify Out Of Court Wins Mostly Praise

Law That Lets Children Testify Out Of Court Wins Mostly Praise

October 6, 1985|By Robert A. Liff of The Sentinel Staff

MIAMI — With convicted child molester Frank Fuster sentenced to prison for at least 165 years, the reviews are coming in on a new state law that lets victims testify outside the courtroom by closed-circuit television.

Parents of his victims -- at least 15 children between 1 and 6 years old -- were joined by prosecutors, state legislators and Gov. Bob Graham in applauding the law, an effort to keep sexual child-abuse victims from the terror of having to face their attackers in court.

Defense attorneys and others, however, say the law undercuts a defendant's rights under the Sixth Amendment to the U.S. Constitution: ''In all criminal prosecutions, the accused shall have the right to be confronted with the witnesses against him.''

Earlier this year the Florida Legislature changed courtroom procedure to let children who might have been abuse victims testify by closed-circuit television from the judge's chambers. The jury and defendant can watch the child's testimony on television monitors in the courtroom.

The law also establishes a ''hearsay exemption,'' which allows young children's statements to psychiatrists or parents to be presented in court without having the child testify.

Six states have adopted similar laws.

In the Fuster case, Dade State Attorney Janet Reno also beamed Fuster's face into the chambers using another closed-circuit camera.

''I think this case makes clear that children can be good witnesses,'' Reno said. ''We can prosecute child-abuse cases if we can provide an environment that makes the court less threatening.''

State Sen. Roberta Fox, D-Miami, sponsor of the law, said the right of confrontation is protected by the closed-circuit procedure.

''The Constitution grows as technology grows,'' she said.

Graham, attending a Miami fund-raiser Friday night for a child-abuse assessment center proposed by parents of Fuster's victims, said the law has ''made people more willing to come forth, and you've seen more reporting of these cases.''

But Fuster defense attorney Jeffrey Samek said removing the child from the courtroom can prejudice the jury.

''It's one thing for attorneys to argue the child is terrified,'' Samek said. ''It's another thing for the jury to look at a witness and draw their own conclusions whether the child is terrified. When you call attention to a particular witness by variation of normal court procedure, that seems to bias the proceedings. The judge is in essence saying the child is terrified.''

Dr. Joseph Braga, a child psychiatrist who questioned Fuster's victims, said their rights outweigh the defendant's when it comes to children.

''The right of confrontation does not mean the right to intimidate, and that's what defense attorneys do for their clients,'' Braga said.

Fuster, 36, sexually assaulted youngsters, including his 6-year-old son, at the baby-sitting service he ran in his home in the Country Walk subdivision of south Dade. He was convicted last week of 14 counts of sexual battery, lewd and lascivious behavior and aggravated assault. He was sentenced to six consecutive life sentences and ordered to serve a minimum of 165 years in jail.

The key witnesses against him were children, eight of whom appeared during the trial. The rest were questioned on videotape by Braga and other child specialists in a special ''non-threatening'' playroom set up in Reno's office. But some lawyers and a group of people who say they have been falsely accused of child abuse say the hysteria over highly publicized sexual child- abuse cases has entrapped innocent people.

A Seattle lawyer, writing in the University of Puget Sound law review about a Washington state law allowing a hearsay exemption, argued that society's ''horror'' at child abuse threatens to undermine defendants' rights.

Making exceptions for children ''may result in more convictions, but it greatly enhances the risk of convicting innocent people,'' wrote the lawyer, Katrin Frank. ''The horror with which society reacts toward the act of child abuse should not result in a conviction based on emotion rather than fact.''

A group based in Minnesota, Victims of Child Abuse Laws, is made up of people who say their families were devastated after they were falsely accused of sexual child abuse. The group's president is

, 50, who along with her husband was accused of child abuse when one of their 13 adopted children made an allegation later found to be unsubstantiated.

''When the focus gets that much on the rights of the child instead of on the rights of the accused, who is supposed to be presumed innocent until proven guilty, then they're playing with the Constitution,'' Bauer said.

Referring to the Fuster case, Bauer said, ''Next time it might be someone who is not guilty.''

A California psychologist allied with VOCAL testified for Fuster and said the methods used by the child psychiatrists were manipulative.

Bauer said her group supports videotaping every statement a child makes during an investigation, especially the statement made the first time a child- abuse charge is brought to authorities. Plans for the child-abuse assessment center proposed by the parents of Fuster's victims include using videotaping equipment that apparently would meet Bauer's request.