Does permitting a victim to testify via closed-circuit television violate the defendant’s sixth amendment rights to confront the witnesses against him when there was no direct inquiry into how the victim would feel about testifying in the defendant’ presence?

The principle behind Penal Code 1347 is making available the testimony of the witness. The main contention of the defendant in the application of §1347 is the fact that it was not firmly established that his presence would cause emotional distress; it was argued that it may have been the mere courtroom that would have made the witness unavailable. Furthermore, issue was taken with the fact that the victim was not directly questioned and the application of §1347 was based on the secondary testimonies of the mother and social worker. But because the court applied §1347 based on substantial evidence of potential emotion distress, there was no abuse of discretion.

FACTS:

Victim had the option of viewing the court room, jury, and defendant. (Victim was able to turn the screen at will which effectively makes the two-way CCTV a one-way CCTV)

Victim was 11 years of age, the daughter of the defendant, and the nature of the acts charged was sexual.

Testimony given by mother and social working to the effect that the victim showed discomfort in testifying against her own father and that a live testimony would cause serious emotional distress such to make the child unavailable as a witness.

Father/defendant has a prior history of violence and physical abuse and has threatened serious bodily injury to the child.

CONCLUSION:

Confrontation Clause did not bar the use of a closed-circuit television procedure that, despite the absence of face-to-face confrontation, ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby reserved the essence of effective confrontation.

LAW:

Sixth Amendment – in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him. …It guarantees a defendant’s right to confront those who bear testimony against him. See Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 2531 (2009).

0.      This right is not absolute such that the defendant and witness always need to be in the same room. See Maryland v. Craig, 497 U.S. 836 (1990).

o       i.e., the physical and psychological well-being of child abuse victims outweighs a defendant’s right to face his or her accusers in court.

§         Depends on the facts of the case (must be a case of necessity)

§1347 – CCTV is available for child witnesses (<13 years of age) such to preserve a defendant’s sixth amendment rights as outlined in Craig IF the court can make all of the following findings:

1.      The minor’s testimony must involve any of the following:

o       An alleged sexual offense committed on or with the minor

o       An alleged violent felony of which the minor is a victim

o       An alleged felony offense (child abuse & corporal punishment) of which the minor is a victim

2.      The impact on the minor of one or more of the factors enumerated in the subparagraphs (A) to (E) is shown by clear and convincing evidence to be so substantial as to make the minor unavailable as a witness unless CCTV is used.

o       Testimony by the minor in the presence of the defendant would result in the child suffering serious emotional distress so that the child would be unavailable as a witness.

o       The defendant used a deadly weapon in the commission of the offense.

o       The defendant threatened serious bodily injury to the child or the child’s family etc…

o       The defendant inflicted serious bodily injury upon the child in the commission of the offense

o       The defendant or his/her counsel behaved during the hearing or trial in a way that caused the minor to be unable to continue his or her testimony.

3.      The equipment used for the CCTV accurately communicates all parties’ image and demeanor.

–         Factors considered by the court for applying §1347:

o       Age of the minor,

o       The relationship between the minor and the defendant,

o       Any handicap or disability of the minor, and

o       The nature of the acts charged.

–         Standard of review: Abuse of discretion