DES MOINES, Iowa (AP) In a significant move that could reshape the judicial landscape in Iowa, the states attorney general is advocating for an amendment to the Iowa Constitution. This proposal aims to address a complex legal dilemma: balancing a defendant's constitutional right to confront their accuser against the imperative to safeguard traumatized children and other vulnerable individuals during court proceedings.

The Iowa House of Representatives recently approved this measure, which had already passed the Senate earlier in March. However, it is important to note that for the amendment to become a reality, it will require years of subsequent votes from both lawmakers and the public, with the potential for a referendum as far off as November 2028.

The urgency of this amendment stems from a pivotal decision made by the Iowa Supreme Court last year, which concluded that the state constitution mandates a face-to-face interaction between defendants and their accusers during trials. This ruling diverged significantly from precedents established by the U.S. Supreme Court and practices in most other states. Iowa Attorney General Brenna Bird, a member of the Republican Party, emphasized the uniqueness of Iowa's legal stance, stating, We are the only state that has come to that conclusion. Its 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.

Under the proposed amendment, the constitutional right to confront ones accuser could be limited by law in specific instances. This would particularly apply to certain witnesses, such as children under the age of 18 and individuals diagnosed with mental illnesses, intellectual disabilities, or other developmental disabilities.

For the amendment to move forward, both chambers of the Iowa legislature must again approve the proposal in 2027 or 2028 so that it can be placed before Iowa voters in November 2028.

Understanding the Sixth Amendment

To provide context, the Sixth Amendment of the U.S. Constitution outlines the rights of individuals accused in criminal prosecutions. It guarantees among other things the right to a speedy trial, an impartial jury, and notably, to be confronted with the witnesses against him. Similarly, the Iowa Constitution, enacted in 1857, includes a confrontation clause affirming the rights of the accused.

In 1990, the U.S. Supreme Court ruled in the case of Maryland v. Craig that the right to confront accusatory witnesses can be fulfilled even without physical, face-to-face confrontation, provided that remote testimony is reliable and necessary. This decision was aimed at protecting child witnesses from the trauma of reliving their experiences in the presence of their abusers.

Despite this, the majority of courts across the country have largely embraced the principles established by the Supreme Court in Maryland v. Craig, according to Colin Miller, a law professor at the University of South Carolina. Notably, the most frequent exception to this has been when state constitutions explicitly state the right to face to face confrontation. For instance, earlier this year, the New Hampshire Supreme Court ruled that a 9-year-old girl's remote testimony violated the defendants constitutional rights based on their own confrontation clause.

Meg Garvin, executive director of the National Crime Victim Law Institute at Lewis & Clark Law School, noted that prior to Iowa's Supreme Court decision, there was an operating assumption among practitioners that states without face to face language in their constitutions would adhere to the guidelines set by the U.S. Supreme Court.

A Judicial Shift

The Iowa Supreme Courts ruling last year reversed the convictions of a man accused of child neglect and abuse, largely due to the testimony of two of his children being delivered from outside the courtroom, thus violating the constitutional right to confrontation. This sparked significant concern, given that a state law established in 1998 provided an exception allowing minor witnesses to give testimony without being in the immediate presence of the defendant, especially if their ability to communicate could be compromised by such proximity.

Bird indicated that the proposed amendment aims to provide a long-lasting legal framework that protects children during court proceedings. The initiative has garnered support from law enforcement agencies, county attorneys, and various victim advocacy organizations. Many advocates argue that justice is not being adequately served if children are required to confront their abusers directly or feel too intimidated to share their stories.

Wendy Berkey, a family advocate at a child protection center in the Des Moines area, shared her poignant insights with lawmakers, stating, The thing that I sit almost daily, definitely weekly, and grapple with with parents is when they have to decide: Is the price of justice worth it for my child? Unfortunately, right now in Iowa the answer they often have is no.

The Debate Over Defendants' Rights

Despite the support for the amendment, it has faced notable opposition from defense attorneys who argue that this proposal could undermine the rights of defendants. Critics point out that allowing exceptions for certain witnesses can inadvertently suggest to juries that the defendant is guilty before even hearing the evidence.

Chris Wellborn, president of the National Association of Criminal Defense Lawyers, expressed concerns about the implications of modifying the constitution, stating, Theyre basically futzing around with the Sixth Amendment. I would argue thats a very dangerous road to go down because when you start saying we carve out exceptions for someones confrontational rights, do we also carve out exceptions for their right to present a defense?

Bird maintains that the existing legal framework has functioned effectively over the years without significant controversies and that she is not pursuing any additional legislation beyond the proposed amendment.

However, Wellborn's apprehensions were echoed by Republican state representative Charley Thomson, who remarked that the provisions could pave the way for future legislative mischief regarding defendants' rights. State representative Steven Holt acknowledged the constitutional concerns at play but noted that the Iowa Supreme Court did not provide clear guidance on how to navigate the complex issues surrounding the protection of children in court.