HOUSE BILL REPORT

SJR 8231

BYSenators Wojahn, Warnke, Stratton, Sutherland, Vognild, Moore, Rasmussen, Bauer and Patrick

Allowing video testimony of children under ten years of age who are sexual abuse victims.

House Committe on Judiciary

Majority Report:  Do pass as amended.  (11)

      Signed by Representatives Appelwick, Chair; Crane, Vice Chair; Padden, Ranking Republican Member; Forner, Inslee, P. King, Moyer, H. Myers, Schmidt, Scott, and Tate.

Minority Report:  Do not pass.  (5)

      Signed by Representatives Brough, Hargrove, R. Meyers, D. Sommers and Wineberry.

House Staff:Pat Shelledy (786-7149)

AS REPORTED BY COMMITTEE ON JUDICIARY FEBRUARY 22, 1990

BACKGROUND:

The state constitution's article I, section 22 provides that an accused in a criminal proceeding has the right to "meet the witnesses against him face to face."  The federal Constitution's amendment VI provides that in all criminal proceedings the accused shall have the right to "be confronted with the witnesses against him."  The state's constitution and laws may be interpreted more restrictively than the federal Constitution but may not be interpreted more liberally or else the provision will be found unconstitutional under the federal Constitution.

The right to confrontation includes the right to cross-examination, the right of the defendant to have the jury observe the witness to assess the witnesses' credibility, and the right to have the defendant and witness confront one another. Exceptions exist to the right to confront witnesses. States other than Washington state have adopted statutes that create an exception for children under a certain age who have been physically or sexually abused.  States have adopted a variety of approaches to protect child witnesses from the trauma of confronting the defendant or testifying in open court in front of the jury, including using videotapes, closed circuit television, and the use of screening devices.

The United States Supreme Court has found one of those statutes unconstitutional. Although the federal Constitution does not provide for face to face confrontation, the Supreme Court interpreted the Constitution to require face to face confrontation in that context.  The court did provide that it may be possible in certain cases, after particularized findings of necessity, that states could adopt certain measures to protect child witnesses even if the measure impinged upon the confrontational rights of the accused.  Since the ruling, a number of states have adopted statutes that provide for particularized findings.  One state's statute that involves the use of closed circuit television in lieu of live in court testimony has recently been accepted for review by the Supreme Court.

Our state constitution has not been interpreted to determine whether the "face to face" requirement would be more restrictive than the federal "face to face" requirement as interpreted in the Supreme Court case in this context.

SUMMARY:

RESOLUTION AS AMENDED:  The Washington state constitution article I, section 22 is amended to provide that in criminal prosecutions involving sexual contact with a child 10 years of age or under, the court may order the testimony of the victim to be taken outside the presence of the accused in the event that the victim cannot reasonably communicate at trial in the presence of the accused.

AMENDED RESOLUTION COMPARED TO ORIGINAL:  Language is stricken that allowed the testimony of the victim to be taken outside the courtroom and televised live into the courtroom.  The new language requires a finding that the victim cannot reasonably communicate in the presence of the accused.

Fiscal Note:      Not Requested.

House Committee ‑ Testified For:    Senator Wojahn, prime sponsor; Vernon Buck, father of a victim of sexual abuse; and Robin McAllister, mother of a victim of sexual abuse.

House Committee - Testified Against:      Kern Cleven, Washington Association of Criminal Defense Lawyers.

House Committee - Testimony For:    Child witnesses require protection for the accused and courtroom.  Children frequently cannot talk in front of the defendant or jury.  Victims are traumatized and cases are compromised as a result.

House Committee - Testimony Against:      The federal Constitution is more restrictive than this amendment, therefore this is a pointless assault on our constitution.  The bill is premature because our constitution may not need amendment in light of the latest United State Supreme Court cases in this area.