Maine's highest court ruled on Nov. 10 that a child sexual-assault victim could testify by video from outside the courthouse without violating the defendant's right to confront his accuser. The decision, in State v. Nakoma V. Polches, addresses how far the state's 2021 child-testimony law reaches in cases where a child 14 or younger is the alleged victim of a sexual offense.
The Supreme Judicial Court, sitting as the Law Court, affirmed Polches's conviction for gross sexual assault of a child under 12. A Washington County jury convicted him after a May 22, 2025, trial, and the trial court sentenced him to 20 years in prison followed by lifetime supervised release and sex-offender registration. The victim testified over Zoom from a children's advocacy center.
What the statute allows
Under 15 M.R.S. section 1321, a child 14 or younger may testify outside the defendant's presence in certain sexual-offense cases if four conditions are met. Among them: two-way audiovisual testimony from a children's advocacy center, real-time cross-examination by the defense lawyer, and a way for the defendant to watch and consult his attorney. Polches conceded the conditions were met.
His argument was about an exception. The statute does not apply when "the positive identification of the defendant is required." Because he never stipulated that he was the person charged, Polches said identification was always required. The court rejected that reading. It said the exception would swallow the rule, leaving the law available in almost no cases and making it "a virtual nullity."
Polches had not raised the argument at trial, so the court reviewed only for obvious error and found none. It read the exception to apply when the State chooses to prove identity by asking the child to identify the defendant in court; then the identification must happen in the defendant's physical presence. Here the State proved identity through other evidence.
The constitutional question
The Sixth Amendment says an accused person has the right "to be confronted with the witnesses against him." Under the U.S. Supreme Court's 1990 decision in Maryland v. Craig, which the Maine court applied, that right can give way only if two things are true: denying face-to-face confrontation is necessary to further an important public policy, and the testimony's reliability is otherwise assured.
On necessity, the Law Court noted that the trial judge heard evidence from the child's mental-health counselor and other witnesses. The judge found that the child would suffer increased trauma and fear if she testified in the defendant's physical presence, that the defendant himself, not the courtroom in general, was the main source of that fear, and that it would likely affect her ability to testify. On reliability, the court pointed to the oath, live cross-examination, and the ability of the judge, jury and defendant to see her demeanor. It also said two-way video let the child see the courtroom, which the one-way television in Craig did not.
Polches had argued that testifying from an advocacy center rather than the courthouse weakened the proceeding. The court said the oath and two-way video were enough to convey the gravity of the occasion. He did not argue that the Maine Constitution gives greater protection, and the court did not address that question.
The opinion is subject to motions for reconsideration and to correction before final publication, according to the court's opinions page. Polches's lawyer, Rory A. McNamara, argued the appeal for the defense; Assistant District Attorney Paige Bebus argued for the State.
