Out of the Mouths Of Babes ...

IF child sexual abuse cases are difficult for trial courts to resolve, the larger issues of constitutional procedures in molestation situations are just as thorny to adjudicate. Only weeks after the United States Supreme Court split 5-to-4 in a pair of cases involving guidelines for children's testimony, the McMartin Pre-school case - the longest and costliest criminal trial in US history - came to an abrupt end in California.

After seven years of prosecution - to the tune of $13.5 million in public funds - the McMartin judge declared a mistrial. Raymond Buckey, the only remaining defendant of an original seven, was freed when jurors deadlocked over whether he had molested youngsters at his grandmother's Manhattan Beach day-care center.

A key issue was the credibility of the children's testimony. Jury members were skeptical of what seemed to be fanciful tales told by the children about sacrifice of animals and satanic rituals. Yet, most were convinced that some of these youngsters had indeed been abused. What remains unanswered is by whom and under what circumstances.

The McMartin case, as well as hundreds of other child molestation cases across the US, continue to raise these issues:

Do children, particularly preschoolers, tend to tell the truth about sexual abuse? Are very young children dependable witnesses, for example, on the time and place of events and people involved?

Should the courts set aside constitutional protection of defendants, specifically face-to-face confrontation with youngsters who have accused them of molestation? And if this procedure is waived, what safeguards should be left in place to guarantee the accused's right to a fair trial?

These questions weighed on the US Supreme Court in deciding cases from Maryland and Idaho. Associate Justice Sandra Day O'Connor wrote both majority rulings. She held in Maryland v. Craig that children may testify using a one-way video arrangement. In Idaho v. Wright, she said that statements made outside the court were inadmissible during the trial.

Upholding a Maryland statute that permits child witnesses to testify via closed-circuit television, O'Connor said that the Sixth Amendment Confrontation Clause does not always require face-to-face confrontation between a defendant and those who testify against him or her at trial. Public policies, including protecting child witnesses from trauma, can justify an exception, the 5-to-4 majority held. Here, five members of the Supreme Court left the option to the trial judge and stressed that the right to confront one's accuser in person may be overridden ``only where the reliability of the testimony is otherwise assured.''

Justice O'Connor's majority coalition in Craig - Chief Justice William Rehnquist and Associate Justices Harry Blackmun Jr., Anthony Kennedy, and Byron White - deserted her in Wright.

Here a majority of associate justices - William Brennan Jr. (now retired), Thurgood Marshall, Antonin Scalia, and John Paul Stevens - joined O'Connor in holding that corroborating evidence that demonstrates ``particular guarantees of trustworthiness'' must be considered to admit out-of-court statements.

These two cases indicate the complexity of the issues surrounding prosecution of persons accused of child molestation. More sex-abuse cases are almost certain to come to the high court in the next few years.

Given the mix of liberals and conservatives that formed the majority and minority voting blocs in both the Maryland and Idaho cases, it would be virtually impossible to predict the vote of Supreme Court nominee David Souter on this issue if he joins the high tribunal next term.

Meanwhile, the long ordeal of the McMartin trial, which started in 1983, remains agonizing to the public and particularly to the defendants and the children involved.

Deputy District Attorney Joseph Martinez said there would be no further legal action against Buckey. ``The community has had enough,'' he stated. ``We gave it our best shot. These kids cannot be McMartin kids for the rest of their lives.''

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