HOUSE BILL REPORT

HB 2809

BYRepresentatives H. Myers, Brough, Jones, Tate, Rasmussen, Rector, Forner, Padden, D. Sommers, Cooper, Beck, Dorn, Holland, Morris, Wineberry, R. King, Day, Spanel, P. King, Raiter, Scott, Schoon, Pruitt, Fraser, G. Fisher, Basich, Bowman, Moyer, Dellwo, Peery, Ebersole, Zellinsky, Kremen, Vekich, Belcher, Kirby, Rayburn, May, Winsley, Brumsickle, Doty, Ferguson, Smith, Wolfe, Silver, Bennett, McLean, Todd, Leonard, Sprenkle, Youngsman, Miller, Brekke, Jacobsen, Wood and Van Luven

Allowing certain child abuse victims to testify through closed-circuit television.

House Committe on Judiciary

Majority Report:  The substitute bill be substituted therefor and the substitute bill do pass.  (14)

      Signed by Representatives Appelwick, Chair; Crane, Vice Chair; Padden, Ranking Republican Member; Belcher, Brough, Dellwo, Forner, Hargrove, P. King, Moyer, H. Myers, Scott, Tate and Wineberry.

House Staff:Pat Shelledy (786-7149)

Rereferred House Committee on Appropriations

Majority Report:  The substitute bill by Committee on Judiciary be substituted therefor and the substitute bill as amended by Committee on Appropriations do pass.  (26)

      Signed by Representatives Locke, Chair; Grant, Vice Chair; H. Sommers, Vice Chair; Silver, Ranking Republican Member; Youngsman, Assistant Ranking Republican Member; Appelwick, Belcher, Bowman, Braddock, Brekke, Dorn, Doty, Ebersole, Ferguson, Hine, Inslee, McLean, Nealey, Padden, Peery, Rust, Sayan, Spanel, Sprenkle, Wang and Wineberry.

House Staff:      Susan Nakagawa (786-7145)

AS REPORTED BY COMMITTEE ON APPROPRIATIONS FEBRUARY 2, 1990

BACKGROUND:

Some states have tried to protect younger children who are victims of sexual or physical abuse from trauma caused by having to testify in front of the defendant or the jury.  In 1988, the United States Supreme Court struck down as unconstitutional a statute that allowed the state to erect a barrier between the child and the defendant. The concurring opinion in the case suggested that states could, in limited circumstances, and after making particularized findings of necessity, use devices to try to protect child witnesses.  Since then, some states have fashioned statutes modeled after the suggested approach in the supreme court's opinion, including allowing the child to testify via closed circuit television.  Some states have upheld those statutes.  The United States Supreme court recently accepted review of one state statute that allows a child to testify via closed circuit television after the appellate court found that the judge did not determine whether or not the source of the trauma was the defendant.

SUMMARY:

SUBSTITUTE BILL:  In cases of sexual or physical abuse where the victim is a child under 10, the court may, under certain circumstances, allow a child under 10 to testify outside the presence of the defendant and the jury via closed circuit television. The court must find, in a hearing conducted outside the presence of the jury, that requiring the child to testify in front of the defendant will cause the child to suffer serious emotional or mental distress that will prevent the child from reasonably communicating at the trial. If the defendant is separated from the child then the jury must also be separated from the child.

The court may allow the child to testify outside the presence of the jury but in the presence of the defendant if the court finds that requiring the child to testify in front of the jury will cause the child to suffer serious emotional or mental distress that will prevent the child from reasonably communicating at trial or, even if the child can communicate, the child will be traumatized.

The court must balance the strength of the state's case without the testimony of the child against the defendant's constitutional rights. The court must also determine if a less-restrictive alternative exists to protect the child.

The court must also find that the prosecutor has made all reasonable efforts to prepare the child for testifying, such as giving the child court tours, and informing the child's guardians about counseling services.  If the prosecutor did not make those efforts, the court must deny the motion.

The court must determine whether the presence of the defendant or the jury is the source of the trauma, and limit the use of the closed circuit television accordingly. If prior to the hearing on the issue, the prosecutor alleges and the court concurs that the defendant's presence is probably the source of the trauma, the court may conduct the examination of the child outside the presence of the defendant by using the closed circuit television.

The prosecutor, defense attorney, and a neutral and trained victim's advocate must always be in the room with the child.  The court may in its discretion decide to remain in the room with the child or preside over the courtroom. All the parties in the room with the child must be on television if possible, otherwise the court must describe for the viewers the location of the parties in relation to the child.

This option is not available in identification cases nor if the defendant is pro se.

SUBSTITUTE BILL COMPARED TO ORIGINAL:  The test for excluding the defendant is more restrictive.  The child must be unable to testify in front of the defendant before the defendant may be excluded from the room.  If the defendant is excluded, the jury must also be excluded.  Language is added identifying who may be in the room with the child and that all parties should be in view on the television or their location identified.  Before the defendant is excluded at the pretrial hearing, the court must concur with the prosecutor that the defendant will probably traumatize the child. The provision allowing for a pro se defendant's assisting attorney to cross examine the child is stricken so close circuit television will not be used when the defendant is pro se.

CHANGES PROPOSED BY COMMITTEE ON APPROPRIATIONS (AMENDMENTS):  The appropriation section is deleted.  The Office of the Administrator for the Courts (OAC) is not required to purchase closed-circuit television equipment for use in counties as need arises.  The requirement that the OAC provide training to court administrators and staff on equipment use is deleted.

Fiscal Note:      Available.

House Committee ‑ Testified For:    (Judiciary) Chris Quinn-Brintall, Pierce County Prosecutors, Bev Emery, Washington Coalition of Sexual Assault Programs; Lonnie Johns-Brown, N.O.W.; Mike Redman, WAPA; Angie Vincent and Terry Emerick, Tennis Shoe Brigade; and Helen Harlow.

(Appropriations) Lonnie Johns-Brown, Child Care Works.

House Committee - Testified Against:      (Judiciary) Kern Cleven, Washington Association of Criminal Defense Lawyers; and Jerry Sheean, A.C.L.U.

(Appropriations) No one.

House Committee - Testimony For:    (Judiciary) In rare cases, children under 10 will be very traumatized by the proceedings and either will not be able to testify or will endure long lasting trauma.  The fact finding process is undermined by the intimidation, and this will help protect the children and improve the fact-finding process.

(Appropriations) Trauma can ensue from young children being forced to testify.  This legislation provides an appropriate compromise.

House Committee - Testimony Against:      (Judiciary) Trials are difficult for everyone but the importance of the defendant's right to confrontation is too great and should not be undermined especially when the only witness may be the child.  Children can proceed to trial if they are properly prepared.

(Appropriations) None.