Can defense counsel strategically agree to remote testimony by child witnesses? State v. Tolman Explained

In State v. Tolman, the Utah Court of Appeals examined whether defense counsel’s strategic decisions regarding remote testimony by child witnesses and evidentiary objections constituted ineffective assistance of counsel.

Background and Facts

Kassie Tolman was convicted of child abuse after a physical altercation with her ten-year-old son during a parent-time visit. The incident involved Tolman chasing her son into a bedroom, stomping on his head with boots, and hitting him with a bag of frozen pizza rolls. The child’s younger siblings witnessed the abuse. At trial, the prosecutor requested that all three children testify outside Tolman’s immediate presence, with her observing remotely from another room. Defense counsel did not object to this arrangement, instead requesting only periodic breaks to consult with his client during cross-examination.

Key Legal Issues

On appeal, Tolman raised two primary arguments: first, that the district court violated her Sixth Amendment confrontation rights by allowing the children to testify outside her presence without proper findings under Rule 15.5; and second, that defense counsel provided ineffective assistance by stipulating to the remote testimony format and failing to object to other-acts evidence and hearsay testimony.

Court’s Analysis and Holding

The court declined to address the confrontation claim because it was not properly preserved. Defense counsel’s objection focused solely on logistical concerns about attorney-client communication during remote testimony, not constitutional confrontation issues. Regarding ineffective assistance, the court applied the familiar two-prong test requiring deficient performance and prejudice. The court found counsel’s decisions were strategically reasonable: agreeing to remote testimony could avoid emotional displays by child witnesses that might prejudice the jury, and counsel made a calculated decision to introduce evidence of the victim’s aggressive behavior knowing it would open the door to the state’s other-acts evidence.

Practice Implications

This decision illustrates the importance of preservation in appellate practice—objections must specifically raise the constitutional or evidentiary ground later argued on appeal. The case also demonstrates that strategic trial decisions receive significant deference on appeal, even when they involve constitutional rights like confrontation. Defense attorneys should carefully weigh whether to object to remote testimony arrangements under Rule 15.5, considering both the confrontation implications and potential strategic advantages of having child witnesses testify outside the defendant’s presence.