The Right to Confrontation
November 6, 2017 § Leave a comment
I posted here previously about the case of Miller v. Smith, in which the COA had ruled that there was no error when the chancellor excluded the parents from the courtroom during a child’s testimony in a child-custody case. Here is a link to my post.
The MSSC reversed the COA in the latest version of Miller v. Smith, decided October 26, 2017. Here is what Chief Justice Waller wrote for the court on the point:
¶19. The issue regarding Miller’s removal from the courtroom during the testimony of Kristen had relevance only while an issue existed concerning the custody of Morgan. A subsequent custody ruling of the trial court has granted custody of Morgan to Miller. We address the issue, though, because of conflicts in our caselaw as discussed below. See Alford v. Miss. Div. of Medicaid, 30 So. 3d 1212, 1214 (¶ 8) (Miss. 2010) (issue not moot if question concerns a matter “detrimental to the public interest that there should be a failure by the dismissal to declare and enforce a rule for future conduct.”) (citation omitted).
The Confrontation Clause of the Sixth Amendment
¶20. Miller argues the Confrontation Clause of the Sixth Amendment applies in this case, even though it is a civil case. By its own language, the Confrontation Clause extends only to criminal cases. U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with witnesses against him . . . .”) (emphasis added); Hannah v. Larche, 363 U.S. 420, 440, 80 S. Ct. 1502, 1513, 4 L. Ed. 2d 1307 n.16 (1960) (“[The Sixth] Amendment is specifically limited to ‘criminal prosecutions’ . . . .”). As the Court of Appeals correctly observed, “The Confrontation Clause only applies to criminal cases. . . . So [Miller’s] first argument fails.” Miller [v. Smith], 2016 WL 6876509, at *3 (¶ 17) [(Miss. Ct. App. Nov. 22, 2016)].
¶21. According to Miller, the Court of Appeals’ decision is contrary to this Court’s precedent. To support his argument, Miller relies on In Interest of C.B., where we held “[t]his is not a criminal case, but we are of the opinion that the right of confrontation should be accorded to an accused parent in” youth-court cases. In Interest of C.B., 574 So. 2d 1369, 1374 (Miss. 1990). [Fn omitted] In a recent concurrence, though, Justice Beam wrote that our statement in In Interest of C.B. “was nonauthoritative dicta.” In re J.T., 188 So. 3d 1192, 1205 (¶ 71) (Miss. 2016) (Beam, J., concurring in part and result).
¶22. This Court cannot ignore the plain language of the Sixth Amendment, which limits its own application to “criminal prosecutions.” To the extent we held in the case of In Interest of C.B., 574 So. 2d at 1374, that the Sixth Amendment applies in civil proceedings, today we overrule it.
Article 3, Section 25 of the Mississippi Constitution
¶23. Miller argues his removal from the courtroom violated Article 3, Section 25 of the Mississippi Constitution. “No person shall be debarred from prosecuting or defending any civil cause for or against him or herself . . . by him or herself, or counsel, or both.” Miss. Const., art. 3, § 25. The Court of Appeals rejected Miller’s argument, finding no violation “[b]ecause [Miller’s] counsel was present during Kristen’s testimony . . . .” Miller, 2016 WL 6876509, at *4. However, the provision prohibits debarment of the individual “by him or herself.” Miss. Const. art. 3, § 25. The presence of Miller’s counsel did not cure the error that Miller, individually, was removed from the courtroom. As a result, a violation of Article 3, Section 25 occurred.
¶24. While the removal of Miller was error, the issue may be reviewed under harmless error analysis. Smith v. State, 986 So. 2d 290, 300 (¶ 30) (Miss. 2008); see also United States v. Pryor, 483 F.3d 309, 312 (5th Cir. 2007).
¶25. First and foremost, while Miller was absent, his attorney was present during the entire questioning. And Miller fails to explain how the examination would have changed had he been present alongside his attorney. See Jones v. State, 912 So. 2d 973, 977 (¶ 16) (Miss. 2005) (“Assertions of error without prejudice do not trigger reversal.”).
¶26. While a Sixth Amendment case, the decision in Rollins v. State is instructive on the issue of removing a defendant from the courtroom. Rollins v. State, 970 So. 2d 716 (Miss. 2007). In Rollins, the grand jury returned a multicount indictment charging the defendant with crimes related to sexual battery of children. Id. at 717 (¶ 2). The trial court allowed the children to testify through closed-circuit television. Id. at 717 (¶ 3). The defendant was removed from the courtroom to watch the television screen alone. Id. at 719 (¶ 5). However, technical difficulties arose, and the defendant was unable to view the witnesses on the screen. Id. at 721 (¶ 11). Because of the inability to see the witnesses and view their demeanor, the defendant raised confrontation issues, claiming a violation of his right required reversal. Id. at 722 (¶ 13). However, this Court held, “in order to receive a new trial, [the defendant] must show the denial of his right to view the demeanor of the minor witnesses prejudiced him.” Id. The Court continued: “[S]ince [the defendant] does not argue that he was prejudiced or demonstrate how he was prejudiced, this argument is without merit.” Id.
¶27. This Court finds that the same reasoning in the Sixth Amendment cases of Jones and Rollins should apply to Miller’s objections under Article 3, Section 25 of the Mississippi Constitution. Smith [sic] must show how he was prejudiced by the procedure used by the trial court. See Goins v. State, 155 Miss. 662, 124 So. 785, 786 (1929) (holding a constitutional error “did not require a reversal, because it did not result in any injury to the defendant . . . .”).
¶28. The trial court should have provided a mechanism, such as closed-circuit TV, for Miller to observe witness testimony when he was removed from the courtroom. However, as the U.S. Supreme Court has held, “most constitutional errors can be harmless.” Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 1833, 144 L. Ed. 2d 35 (1999) (quoting Arizona v. Fulminante, 499 U.S. 279, 306, 111 S. Ct. 1246, 1263, 113 L. Ed. 2d 302
(1991)). We hold that, due to the lack of prejudice to Miller, Miller’s erroneous removal was harmless.
So, Article 3, Section 25 of the Mississippi Constitution requires that the parents, in cases such as this, be provided with means such as closed-circuit tv to observe the testimony of the child(ren) if the court decides that it is not in the child’s best interest for the parents to be present during the testimony. I imagine the 21st century equivalents FaceTime and Skype would suffice.
If your client is excluded over your objection, be prepared to explain how it prejudiced your client.