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Wednesday, September 23, 2009

Dennis on Shielding Juvenile Witnesses and Informants

Andrea Dennis (University of Kentucky College of Law) has posted Beyond Victims of Sexual Perverts: Expanding Shielding to All Juvenile Witnesses  and Collateral Damage? Juvenile Snitches in America's "War" on Drugs, Crime and Gangs (American Criminal Law Review, Vol. 46, No. 3, 2009) on SSRN.  Here are the abstracts, respectively:

Files_photos_profiles_Andrea-Dennis-FULL

In Maryland v. Craig, the Supreme Court approved shielding child abuse victim-witnesses from the presence of the defendant while the witnesses testified. The genesis for shielding laws was social science evidence demonstrating trauma to child sex abuse victims who, while testifying, confronted defendants. Because the Supreme Court to date has declined to consider the scope of applicability of Craig, the current legal landscape of shielding rules suffers from a lack of uniformity on the breadth of applicability of shielding. Consequently, if a juvenile witness does not fall within the class of witnesses protected by a shielding statute, then the witness may be forced to testify in the defendant’s presence and without being shielded. Such an event may traumatize the child, just as it might a child sexual abuse victim-witness. This Article contends that Craig should be interpreted to extend to all juvenile witnesses regardless of age, nature of the case, or relationship of the child to the case as victim or witness. The Court’s rationale in Craig is sufficiently broad to warrant extension of shielding to all juveniles in any case, yet narrow enough to avoid eviscerating the right of confrontation. To implement the changes argued for herein, the Article recommends that legislatures adopt the Uniform Child Witness Testimony by Alternative Methods Act with one essential change: revise the Act’s age limit from thirteen years of age to eighteen years of age.

[and]

The government’s use of children as informants in America’s 'wars' on drugs, crime, and gangs is little recognized and rarely discussed by scholars, policymakers, and the public. As with many governmental practices, only notorious instances make headlines, such as when a child is killed in retaliation for informing. Because public attention rarely is focused on the practice, it has not generated consistent documentation of, regulation of, or accountability for such use of child informants. As a starting point for discussion, this article illuminates the experiences of child informants, describing a facet of the snitching institution that generally operates under the radar. The article then considers the government’s use of child informants in light of its historical child protection function and its contemporary war-like stance regarding the domestic social problems of drugs, crime, and gangs. The article posits that the government’s use of child informants creates discord between the doctrine of parens patriae, which is aimed at protecting children, and the exercise of police power to further public safety. Further, the article observes that the substantial harms posed to child informants are viewed as collateral and bearable consequences in light of the valuable information obtained from child informants. In conclusion, the article asserts that the use of children as informants should be a closely-monitored and limited investigative method and delineates prophylactic measures restricting their use.

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