On January 5, 2021, Joseph King and Lauren LeBourgeois filed a petition for certiorari in the United States Supreme Court to the Virginia Supreme Court in the matter of Braulio Castillo v. Virginia. The petitioner challenges the constitutionality of Virginia Code § 18.2-67.9 as violative of the Confrontation Clause of the Sixth Amendment.  Code 18.2-67.9 permits child victims and witnesses up to the age of 16 at the time of trial to testify via closed circuit TV projected into the courtroom upon certain findings made by the trial court. In the case, petitioner’s minor child was permitted to testify via closed circuit TV against his father who he could not see and did not know was on trial for murder. The petition can be found here.

The issues presented in the petition are:

1. Does the Confrontation Clause allow a non-victim child witness to testify against his father via two-way closed-circuit television when the witness cannot see his father and does not know that his father is on trial for murder?

2. Given that Crawford v. Washington, 541 U.S. 36 (2004),removed the underpinnings of Maryland v. Craig, 497 U.S. 836 (1990), should Craig be overruled?

In objecting to the minor child testifying remotely in the trial court, defense counsel argued that Virginia Code § 18.2-67.9 violated the Confrontation Clause because Maryland v. Craig, 497 U.S. 836 (1990) did not survive Crawford v. Washington, 541 U.S. 36 (2004), which in defense counsel’s view, required face-to-face confrontation in the courtroom. Craig permitted child victimsto testify via CCTV upon a two-prong finding that (1) the “denial of such confrontation is necessary to further an important public policy,” and (2) “the reliability of the testimony is otherwise assured.” 497 U.S. at 850. The Craig decision depended on the reliability-balancing approach to the Confrontation Clause approved by Ohio v. Roberts, 448 U.S. 56 (1980) and subsequently overruled by Crawford. Crawford held that the Confrontation Clause is “a procedural rather than a substantive guarantee [that] commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” 541 U.S. at 61.