Bill Text: CA SB176 | 2015-2016 | Regular Session | Chaptered
Bill Title: Examining children as witnesses.
Spectrum: Slight Partisan Bill (Democrat 9-5)
Status: (Passed) 2015-08-10 - Chaptered by Secretary of State. Chapter 155, Statutes of 2015. [SB176 Detail]
Download: California-2015-SB176-Chaptered.html
BILL NUMBER: SB 176 CHAPTERED
BILL TEXT
CHAPTER 155
FILED WITH SECRETARY OF STATE AUGUST 10, 2015
APPROVED BY GOVERNOR AUGUST 10, 2015
PASSED THE SENATE JULY 9, 2015
PASSED THE ASSEMBLY JULY 6, 2015
AMENDED IN ASSEMBLY JULY 2, 2015
AMENDED IN SENATE MARCH 18, 2015
INTRODUCED BY Senators Mitchell and Anderson
(Coauthors: Senators Hall, Hertzberg, Huff, and Stone)
(Coauthors: Assembly Members Bonilla, Chu, Cristina Garcia,
Gonzalez, Lackey, Maienschein, McCarty, and Waldron)
FEBRUARY 9, 2015
An act to amend Section 1347 of the Penal Code, relating to
crimes.
LEGISLATIVE COUNSEL'S DIGEST
SB 176, Mitchell. Examining children as witnesses.
Existing law authorizes a court in a criminal proceeding, upon
written notice by the prosecutor made at least 3 days prior to the
date of the preliminary hearing or trial date on which the testimony
of the minor is scheduled or during the course of the proceeding on
the court's own motion, to order that the testimony of a minor 13
years of age or younger at the time of the motion be taken by
contemporaneous examination and cross-examination in another place
and out of the presence of the judge, jury, defendant or defendants,
and attorneys, and communicated to the courtroom by means of
closed-circuit television, if the court makes specified findings. One
of the findings existing law requires is that the minor's testimony
will involve a recitation of the facts of specified crimes, including
an alleged violent felony of which the minor is a victim.
This bill would authorize a minor 13 years of age or younger to
testify by contemporaneous examination and cross-examination if the
testimony will involve the recitation of the facts of an alleged
violent felony, whether or not the minor is a victim.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1347 of the Penal Code is amended to read:
1347. (a) It is the intent of the Legislature in enacting this
section to provide the court with discretion to employ alternative
court procedures to protect the rights of a child witness, the rights
of the defendant, and the integrity of the judicial process. In
exercising its discretion, the court necessarily will be required to
balance the rights of the defendant or defendants against the need to
protect a child witness and to preserve the integrity of the court's
truthfinding function. This discretion is intended to be used
selectively when the facts and circumstances in an individual case
present compelling evidence of the need to use these alternative
procedures.
(b) Notwithstanding any other law, the court in a criminal
proceeding, upon written notice by the prosecutor made at least three
days prior to the date of the preliminary hearing or trial date on
which the testimony of the minor is scheduled, or during the course
of the proceeding on the court's own motion, may order that the
testimony of a minor 13 years of age or younger at the time of the
motion be taken by contemporaneous examination and cross-examination
in another place and out of the presence of the judge, jury,
defendant or defendants, and attorneys, and communicated to the
courtroom by means of closed-circuit television, if the court makes
all of the following findings:
(1) The minor's testimony will involve a recitation of the facts
of any of the following:
(A) An alleged sexual offense committed on or with the minor.
(B) An alleged violent felony, as defined in subdivision (c) of
Section 667.5.
(C) An alleged felony offense specified in Section 273a or 273d of
which the minor is a victim.
(2) The impact on the minor of one or more of the factors
enumerated in subparagraphs (A) to (E), inclusive, is shown by clear
and convincing evidence to be so substantial as to make the minor
unavailable as a witness unless closed-circuit testimony is used.
(A) 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.
(B) The defendant used a deadly weapon in the commission of the
offense.
(C) The defendant threatened serious bodily injury to the child or
the child's family, threatened incarceration or deportation of the
child or a member of the child's family, threatened removal of the
child from the child's family, or threatened the dissolution of the
child's family in order to prevent or dissuade the minor from
attending or giving testimony at any trial or court proceeding, or to
prevent the minor from reporting the alleged sexual offense, or from
assisting in criminal prosecution.
(D) The defendant inflicted great bodily injury upon the child in
the commission of the offense.
(E) The defendant or his or her counsel behaved during the hearing
or trial in a way that caused the minor to be unable to continue his
or her testimony.
In making the determination required by this section, the court
shall consider the age of the minor, the relationship between the
minor and the defendant or defendants, any handicap or disability of
the minor, and the nature of the acts charged. The minor's refusal to
testify shall not alone constitute sufficient evidence that the
special procedure described in this section is necessary to obtain
the minor's testimony.
(3) The equipment available for use of closed-circuit television
would accurately communicate the image and demeanor of the minor to
the judge, jury, defendant or defendants, and attorneys.
(c) If the court orders the use of closed-circuit television,
two-way closed-circuit television shall be used, except that if the
impact on the minor of one or more of the factors enumerated in
subparagraphs (A) to (E), inclusive, of paragraph (2) of subdivision
(b), is shown by clear and convincing evidence to be so substantial
as to make the minor unavailable as a witness even if two-way
closed-circuit television is used, one-way closed-circuit television
may be used. The prosecution shall give the defendant or defendants
at least 30 days' written notice of the prosecution's intent to seek
the use of one-way closed-circuit television, unless the prosecution
shows good cause to the court why this 30-day notice requirement
should not apply.
(d) (1) The hearing on a motion brought pursuant to this section
shall be conducted out of the presence of the jury.
(2) Notwithstanding Section 804 of the Evidence Code or any other
law, the court, in determining the merits of the motion, shall not
compel the minor to testify at the hearing, nor shall the court deny
the motion on the ground that the minor has not testified.
(3) In determining whether the impact on an individual child of
one or more of the five factors enumerated in paragraph (2) of
subdivision (b) is so substantial that the minor is unavailable as a
witness unless two-way or one-way closed-circuit television is used,
the court may question the minor in chambers, or at some other
comfortable place other than the courtroom, on the record for a
reasonable period of time with the support person, the prosecutor,
and defense counsel present. The defendant or defendants shall not be
present. The court shall conduct the questioning of the minor and
shall not permit the prosecutor or defense counsel to examine the
minor. The prosecutor and defense counsel shall be permitted to
submit proposed questions to the court prior to the session in
chambers. Defense counsel shall be afforded a reasonable opportunity
to consult with the defendant or defendants prior to the conclusion
of the session in chambers.
(e) When the court orders the testimony of a minor to be taken in
another place outside of the courtroom, the court shall do all of the
following:
(1) Make a brief statement on the record, outside of the presence
of the jury, of the reasons in support of its order. While the
statement need not include traditional findings of fact, the reasons
shall be set forth with sufficient specificity to permit meaningful
review and to demonstrate that discretion was exercised in a careful,
reasonable, and equitable manner.
(2) Instruct the members of the jury that they are to draw no
inferences from the use of closed-circuit television as a means of
facilitating the testimony of the minor.
(3) Instruct respective counsel, outside of the presence of the
jury, that they are to make no comment during the course of the trial
on the use of closed-circuit television procedures.
(4) Instruct the support witness, outside of the presence of the
jury, that he or she is not to coach, cue, or in any way influence or
attempt to influence the testimony of the minor.
(5) Order that a complete record of the examination of the minor,
including the images and voices of all persons who in any way
participate in the examination, be made and preserved as a video
recording in addition to being stenographically recorded. The video
recording shall be transmitted to the clerk of the court in which the
action is pending and shall be made available for viewing to the
prosecuting attorney, the defendant or defendants, and his or her
attorney during ordinary business hours. The video recording shall be
destroyed after five years have elapsed from the date of entry of
judgment. If an appeal is filed, the video recording shall not be
destroyed until a final judgment on appeal has been ordered. A video
recording that is taken pursuant to this section is subject to a
protective order of the court for the purpose of protecting the
privacy of the witness. This subdivision does not affect the
provisions of subdivision (b) of Section 868.7.
(f) When the court orders the testimony of a minor to be taken in
another place outside the courtroom, only the minor, a support person
designated pursuant to Section 868.5, a nonuniformed bailiff, any
technicians necessary to operate the closed-circuit equipment, and,
after consultation with the prosecution and the defense, a
representative appointed by the court, shall be physically present
for the testimony. A video recording device shall record the image of
the minor and his or her testimony, and a separate video recording
device shall record the image of the support person.
(g) When the court orders the testimony of a minor to be taken in
another place outside the courtroom, the minor shall be brought into
the judge's chambers prior to the taking of his or her testimony to
meet for a reasonable period of time with the judge, the prosecutor,
and defense counsel. A support person for the minor shall also be
present. This meeting shall be for the purpose of explaining the
court process to the child and to allow the attorneys an opportunity
to establish rapport with the child to facilitate later questioning
by closed-circuit television. No participant shall discuss the
defendant or defendants or any of the facts of the case with the
minor during this meeting.
(h) When the court orders the testimony of a minor to be taken in
another place outside the courtroom, nothing in this section
prohibits the court from ordering the minor to be brought into the
courtroom for a limited purpose, including the identification of the
defendant or defendants as the court deems necessary.
(i) The examination shall be under oath, and the defendant or
defendants shall be able to see and hear the minor witness, and if
two-way closed-circuit television is used, the defendant's image
shall be transmitted live to the witness.
(j) Nothing in this section affects the disqualification of
witnesses pursuant to Section 701 of the Evidence Code.
(k) The cost of examination by contemporaneous closed-circuit
television ordered pursuant to this section shall be borne by the
court out of its existing budget.
(l) Nothing in this section shall be construed to prohibit a
defendant from being represented by counsel during any closed-circuit
testimony.
