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.
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