SENATE BILL REPORT

ESHB 2809

BYHouse Committee on Judiciary (originally sponsored by Representatives 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

Rereferred House Committee on Appropriations

Senate Committee on Law & Justice

Senate Hearing Date(s):February 22, 1990; February 23, 1990

Majority Report:  Do pass as amended.

      Signed by Senators Nelson, Chairman; Hayner, Madsen, Newhouse, Patrick, Rasmussen, Thorsness.

Senate Staff:Anita Neal (786-7418)

                  February 27, 1990

AS REPORTED BY COMMITTEE ON LAW & JUSTICE, FEBRUARY 23, 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 court's suggested approach, 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:

In cases of sexual or physical abuse where the victim is a child under ten, the court may allow the child to testify outside the presence of the defendant and/or 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 serious emotional or mental distress that will prevent him or her from reasonably communicating at the trial.  If the defendant is separated from the child, 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 testifying in front of the jury will cause the child serious emotional or mental distress that will prevent the child from reasonably communicating at trial or, even if the child can communicate, he or she 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 find that the prosecutor has made all reasonable efforts to prepare the child for testifying.  If the prosecutor did not make such efforts, the court must deny the motion.

The prosecutor, defense attorney, and a neutral and trained victim's advocate must always be in the room with the child.  The judge may 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 in self-representation cases.

Appropriation:    none

Revenue:    none

Fiscal Note:      available

SUMMARY OF PROPOSED SENATE AMENDMENT:

A technical amendment clarifies the requirement that all parties in the room with the child shall be on camera.  If viewing all participants on camera is not possible, the court shall describe the location of the prosecutor, defense attorney, and other participants in relation to the child.

Senate Committee - Testified: Representative Myers, original prime sponsor; Kern Cleven, Washington Association of Criminal Defense Lawyers; Mike Redman, WAPA; Bev Emery, Washington Coalition of Sexual Assault Programs; Lonnie Johns-Brown, Washington Association of Child Abuse Councils