DES MOINES, Iowa (AP) — Iowa’s top prosecutor is proposing an amendment to the state constitution to solve what one lawmaker called an “interesting conundrum," weighing a person's constitutional right to confront their accuser in the courtroom against the desire to protect traumatized children and vulnerable people.
But some worry the proposal could hinder a defendant's rights in court.
The Iowa House approved the measure last week, and it passed the Senate in March, though it would take years and several more votes — by lawmakers and the public — before the state constitution could be changed.
The issue stems from a state Supreme Court decision last year that said the Iowa Constitution requires people accused of a crime and the trial witnesses testifying against them to see each other. The decision broke with decades of how the U.S. Supreme Court and other states handle the issue, Iowa Attorney General Brenna Bird argues.
“We are the only state that has come to that conclusion,” said Bird, a Republican. “It’s really important that we can protect kids in court, that kids who have been traumatized can have the opportunity to testify outside the presence of the person they may be very, very afraid of.”
The amendment would say that constitutional right “may be limited by law” for certain witnesses: those under 18 and those with mental illness, intellectual disability or other developmental disability.
Both legislative chambers would need to approve the measure again in 2027 or 2028 to put it before voters in November 2028.
The Sixth Amendment of the U.S. Constitution lays out the rights of the accused in criminal prosecutions, specifying the right to a speedy trial, an impartial jury, and, among other things, “to be confronted with the witnesses against him.”
The Iowa Constitution, adopted in 1857, also defines the rights of persons accused, including the same confrontation clause.
The U.S. Supreme Court said in a 1990 decision, Maryland v. Craig, that “the right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation” when remote testimony is necessary and can be provided reliably.
“Maryland’s interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of its special procedure,” the decision said.
The majority of courts across the country have aligned with that Supreme Court decision, according to Colin Miller, a University of South Carolina law professor.
The most common exception is when the state's confrontation clause includes the words “face to face." That explicit text led the New Hampshire Supreme Court this year, for example, to say a 9-year-old girl’s remote testimony violated the defendant’s constitutional right.
“Up until Iowa, our — as practitioners and as a national agency — operating assumption was that if it did not say ‘face to face’ in the state constitution, they would abide Maryland v. Craig,” said Meg Garvin, executive director of the National Crime Victim Law Institute at Lewis & Clark Law School.
Garvin was referencing the Iowa Supreme Court’s decision last year that reversed the convictions for a man accused of neglect or abuse of a child and child endangerment causing bodily injury. Two of his other children testified against him from outside the courtroom, where they could not see the defendant.
A 1998 state law carved out that exception for a minor needing protection “from trauma caused by testifying in the physical presence of the defendant where it would impair the minor’s ability to communicate.” If the judge allows, a minor’s testimony could be televised to the jury and defendant in the courtroom.
Iowa's confrontation clause does not specify “face to face,” but the court said that violated his constitutional right to confrontation, declaring the state constitution affords more protection to criminal defendants than the federal constitution.
"When our constitution was adopted, a ‘confrontation’ was understood to involve a ‘face to face’ encounter,” the court said.
Bird said her office wanted to ensure the solution they proposed to protect kids “stands the test of time.”
It’s supported by law enforcement and county attorneys, as well as various victim advocacy organizations, many of whom told lawmakers that justice isn’t being served in Iowa if children are forced to face an abuser again or are too afraid to tell their stories.
“The thing that I sit almost daily, definitely weekly, and grapple with with parents is when they have to decide: ‘Is the price of justice worth it for my child?’” Wendy Berkey, a family advocate at a Des Moines-area child protection center, told lawmakers in January. “Unfortunately, right now in Iowa the answer they often have is no.”
The public opposition to the proposal has been concentrated among defense attorneys who cite examples of people wrongly accused and say these allowances for certain witnesses signal to the jury that the defendant is guilty.
The existing law looks similar to the approach in many states, said Chris Wellborn, president of the National Association of Criminal Defense Lawyers. But Wellborn suggested that changing the constitution is a slippery slope.
“They’re basically futzing around with the Sixth Amendment,” he said. “I would argue that’s a very dangerous road to go down because when you start saying we carve out exceptions for someone’s confrontational rights, do we also carve out exceptions for their right to present a defense?”
Bird said the current law has “worked for years without controversy," and she is not seeking additional legislation.
But Wellborn's concern was echoed by Republican state Rep. Charley Thomson, who said the provisions “open the door wide to mischief by future legislatures.”
State Rep. Steven Holt acknowledged the constitutionality concerns but said the Iowa Supreme Court didn't offer many options.
“They struck it down but didn't really give any guidance as to what we should do,” said Holt, a Republican. “They've left us with an interesting conundrum as we try to protect children in the courts against ... having to be traumatized again.”
FILE - Iowa Republican Attorney General candidate Brenna Bird speaks during a Republican Party of Iowa election night rally, Nov. 8, 2022, in Des Moines, Iowa. (AP Photo/Charlie Neibergall, File)
