Friday, September 20, 2013
Andrea Dennis (University of Georgia Law School) has posted Prosecutorial Discretion and the Neglect of Juvenile Shielding Statutes (Nebraska Law Review, Vol. 90, pp. 341-87 (2013)) on SSRN. Here is the abstract:
This Article reviews the failure of juvenile shielding statutes to take hold in the prosecution of cases involving child witnesses because of prosecutors’ discretionary decisions not to use these statutes. The Article investigates prosecutors’ pragmatic and doctrinal justifications for not utilizing juvenile shielding statutes and concludes that the proffered reasons are legitimate. Building on these insights, the Article concludes by offering legislative reform designed to revitalize juvenile shielding statutes. The discussion that follows proceeds in three parts. Part II describes the development of juvenile shielding laws, particularly the circumstances sparking the public and academic demand for protection of juvenile witnesses during in-court testimony, the resulting state legislative enactments of juvenile shielding statutes, and the Supreme Court’s validation of these statutes in Craig.This Part then describes evidence revealing the unexpected failure of prosecutors to use this modern and constitutional litigation device. Part III fleshes out the multiple factors that have led prosecutors to seldom use such statutes, despite expectations to the contrary. Generally, prosecutors’ concerns reflect four ideas: namely, that shielding is (1) infeasible, (2) needless, (3) ineffective, and (4) impermissible. Even in the wake of Craig, a follow-up assessment of each explanation shows them all to be legitimate. Part IV draws on the observations in Part III to suggest that legislators must pay close attention to who is granted standing to request protective measures, who falls within the protected class of witnesses, and which technologies are best utilized to effectuate shielding. Evaluation of these matters leads to three reform proposals. First, witnesses must be given authority independent from prosecutors to request shielding. Second, the class of witnesses eligible for protection should not be limited by the witness’s role in the case or the characteristics of the case or child. Third, legislative enactments should eschew reliance on electronic technologies. In essence, this Article suggests that legislative adoption of these reforms — and only legislative adoption of these reforms — will invigorate shielding laws in a way that permits them to achieve their original and salutary purposes.