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Videotaped Statements of Children, § 908.08 – Constitutionality

State v. Kevin D. James, 2005 WI App 188
For James: Terry W. Rose

Issue/Holding: The mere fact that § 908.08 imposes a mandatory protocol (videotape admitted into evidence first; child called to testify afterward) violates neither confrontation, ¶¶10-14, nor separation-of-powers, ¶¶15-25, doctrines.This statutory procedure allows the State to introduce a child’s videotaped statement, with the child available for questioning at the defendant’s request. In effect, the videotape stands as the direct examination, with defense opportunity for live cross-examination. This procedure satisfies Crawford v. Washington, 541 U.S. 36 (2004) confrontation clause requirements, which mandate only that the declarant be present and subject to full cross-examination at trial, ¶¶10-11. Nor does “the order of evidence prescribed in the statute” violate the separation of powers doctrine: by limiting the amount of time a child must spend on the witness stand, the statute eliminates a great deal of emotional strain, ¶18; and, it “does not determine the result of any case and therefore leaves the judiciary’s authority fully intact with respect to its most important function,” ¶20.

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