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DES MOINES, Iowa (AP) — The Attorney General of Iowa is advocating for an amendment to the state constitution aimed at addressing a complex issue involving the rights of the accused versus the need to safeguard traumatized children and other vulnerable individuals in courtroom settings.
Concerns have been raised that this amendment could potentially compromise the rights of defendants during trials.
Recently, the Iowa House endorsed this proposal, which has already cleared the Senate. However, changing the state’s constitution is a lengthy process requiring multiple approvals from both lawmakers and voters, potentially extending over several years.
This movement follows a decision by the Iowa Supreme Court last year, which ruled that the Iowa Constitution mandates a face-to-face encounter between accused individuals and their accusers during trials. This ruling diverges from precedents set by the U.S. Supreme Court and other states, according to Iowa Attorney General Brenna Bird.
“Iowa stands alone in this interpretation,” noted Bird, a member of the Republican Party. “It’s crucial for us to ensure that children who have experienced trauma in their past can testify without having to confront the individual they may fear.”
The proposed amendment would permit limitations on the constitutional right to confront witnesses for specific groups: minors under 18 and individuals with mental illnesses or other developmental disabilities.
For the proposal to advance to a public vote in November 2028, it would require further approval from both legislative chambers in either 2027 or 2028.
What is the Sixth Amendment?
The Sixth Amendment of the U.S. Constitution outlines the rights of individuals accused in criminal proceedings, including entitlement to a speedy trial, an impartial jury, and the right “to be confronted with the witnesses against him.”
Similarly, the Iowa Constitution, enacted in 1857, asserts the rights of accused persons, incorporating a parallel confrontation clause.
A significant ruling by the U.S. Supreme Court in 1990, Maryland v. Craig, established that the confrontation right could be satisfied via means other than direct, face-to-face interaction if reliable remote testimony alternatives are in place.
“Maryland’s obligation to safeguard child witnesses from the distress of testifying in abuse cases justifies the utilization of its specialized procedures,” the judgment stated.
Most courts across the U.S. have adhered to this precedent, according to Colin Miller, a law professor from the University of South Carolina.
A notable exception arises when a state’s confrontation clause explicitly mentions “face to face,” as was the case in New Hampshire this year, where a court deemed a 9-year-old girl’s remote testimony in violation of the defendant’s constitutional rights.
“Before Iowa, we operated with the understanding that states not specifying ‘face to face’ in their constitutions would follow the precedent set in Maryland v. Craig,” stated Meg Garvin, executive director of the National Crime Victim Law Institute at Lewis & Clark Law School.
An originalist interpretation
Garvin referenced a decision on child endangerment where the Iowa Supreme Court overturned convictions due to children testifying from outside the courtroom, unable to see their father, who was the defendant.
A 1998 Iowa statute allowed minors to be shielded from trauma associated with testifying in the defendant’s presence, permitting their testimony to be broadcast to the jury and defendant if a judge approved.
Despite the Iowa confrontation clause not including “face to face,” the court concluded that this omission still violated the defendant’s rights, asserting that the state’s constitution provides more extensive protections than the federal framework.
“When our constitution was established, a ‘confrontation’ was understood to necessitate a ‘face to face’ interaction,” the court emphasized.
Protecting victims
Bird affirmed that the goal of the proposed amendment is to create a lasting framework to protect children in legal settings.
This initiative has garnered support from law enforcement, county attorneys, and numerous victim advocacy groups, many of whom conveyed to lawmakers that justice for children often falters when they are compelled to face an alleged abuser or when they avoid speaking out due to fear.
“Frequently, I engage with parents who face the daunting decision: ‘Is pursuing justice worth the emotional toll on my child?’ Currently, many feel that the answer is no,” articulated Wendy Berkey, a family advocate at a child protection center in Des Moines, during a legislative discussion in January.
The debate over defendants’ rights
Opposition to the proposal has largely emerged from defense attorneys, who point to instances of wrongful accusations and argue that allowing exceptions for specific witnesses might lead juries to prematurely conclude guilt.
Chris Wellborn, president of the National Association of Criminal Defense Lawyers, noted that while the current law is similar to those in many other states, altering the constitution might pose risks.
“This process risks manipulating the Sixth Amendment,” he stated. “It’s troublesome to carve out exceptions for confrontation rights—what other rights might later be compromised?”
Bird responded that existing laws have effectively functioned without significant challenges, emphasizing she does not seek broader legislative changes at this time.
Still, Wellborn’s concerns resonated with Republican state Rep. Charley Thomson, who warned that such provisions could lead to potential legislative complications in the future.
Meanwhile, Republican state Rep. Steven Holt acknowledged the validity of constitutional apprehensions but noted that the Iowa Supreme Court’s decision left little clarity regarding how to proceed.
“The court invalidated our previous approach but provided scant guidance on the way forward,” Holt remarked. “This has created a unique dilemma for us in seeking to protect children from further trauma in judicial processes.”
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