FINAL BILL REPORT

SHB 2809

                                  C 150 L 90

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

SYNOPSIS AS ENACTED

BACKGROUND:

State and federal constitutions provide that an accused criminal defendant has the right to confront witnesses against him or her.  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 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 approach suggested in the supreme court's opinion, including allowing the child to testify via closed circuit television.  Some state courts have upheld those statutes.  The United States Supreme court recently accepted review of a case involving the application of one state statute that allows a child to testify via closed circuit television in order to avoid trauma.  A lower court struck down the application of the statute in the case because the trial court judge did not determine whether the source of the trauma was the defendant.

SUMMARY:

In cases of sexual or physical abuse where the victim is a child under 10, the court may, under certain circumstances, allow the child to testify outside the presence of the defendant and/or the jury via closed circuit television.

The court may allow the child to testify outside the presence of the defendant if it makes certain findings in a hearing conducted outside the presence of the jury.  The court must find 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 to be separated from the child at trial then the jury must also be separated from the child.

A court may also allow a child to testify outside the presence of the jury but in the presence of the defendant.  To allow separation from the jury, the court must find 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, that 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 conduct a hearing before trial to determine whether the presence of the defendant or the jury is the source of the trauma, and must limit the use of the closed circuit television at trial accordingly. If prior to this hearing, the prosecutor alleges and the court concurs that the defendant's presence is probably the source of the trauma, then at the hearing 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 when closed circuit television is used.  The court may decide to remain in the room with the child or to 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 of using closed circuit television is not available in identification cases nor if the defendant is acting as his or her own attorney.

VOTES ON FINAL PASSAGE:

      House 98   0

      Senate    38    10 (Senate amended)

      House 94   0 (House concurred)

EFFECTIVE:March 23, 1990