BILL ANALYSIS Ó
AB 1276
Page 1
Date of Hearing: May 5, 2015
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
1276 (Santiago) - As Amended March 26, 2015
SUMMARY: Adds human trafficking to the list of offenses which
permits a child witness to testify at trial out of the presence
of the defendant and jury by way of closed-circuit television
and increases the permissible age of the child witness from 13
years old and under to 17 years old and under.
EXISTING LAW:
1)Authorizes a court in any 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:
a) The minor's testimony will involve a recitation of the
facts of any of the following:
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i) An alleged sexual offense committed on or with the
minor;
ii) An alleged violent felony, as defined, of which the
minor is a victim; or
iii) An alleged felony offense of willful harm or injury
to a child or corporal punishment of a child of which the
minor is a victim;
b) The impact on the minor of one or more of the factors
enumerated in the following paragraphs, 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:
i) 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.
ii) The defendant used a deadly weapon in the commission
of the offense.
iii) 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.
iv) The defendant inflicted great bodily injury upon the
child in the commission of the offense.
v) 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.
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c) 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. (Pen. Code, § 1347, subd. (b).)
2)Directs the court, in making the determination required by
this section, to 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. (Pen. Code, § 1347, subd.
(b)(2)(E).)
3)Allows the court to 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. (Pen. Code, §
1347, subd. (d)(3).)
4)Provides that when a 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. (Pen. Code, § 1347, subd. (h).)
5)States that 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
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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 the individual
case present compelling evidence of the need to use these
alternative procedures. (Pen. Code, § 1347, subd. (a).)
6)Provides that any person who deprives or violates the personal
liberty of any other with the intent to obtain forced labor or
services is guilty of human trafficking and shall be punished
in state prison for 5, 8, or 12 years and a fine of not more
than $500,000. (Pen. Code, § 236.1, subd. (a).)
7)States that any person who deprives or violates the personal
liberty of any other with the intent to effect or maintain a
violation of specified offenses related to sexual conduct,
obscene matter or extortion is guilty of human trafficking and
shall be punished by imprisonment in the state prison for 8,
14 or 20 years and a fine of not more than $500,000. (Pen.
Code, § 236.1, subd. (b).)
8)Specifies the following penalties for any person who causes,
induces, or persuades, or attempts to cause, induce, persuade,
a person who is minor at the time of commission of the offense
to engage in a commercial sex act, as provided:
a) Five, 8, or 12 years and a fine of not more than
$500,000; or,
b) Fifteen years to life and a fine of not more than
$500,000 when the offense involves force, fear, fraud,
deceit, coercion, violence, duress, menace, or threat of
unlawful injury to the victim or to another person. (Pen.
Code, § 236.1, subd. (c).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "Testifying in
court can be particularly traumatic for minor victims of human
trafficking. Facing or confronting the perpetrator in court
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and being asked to recall horrifying and personal details of
the crime can cause severe emotional trauma. The inability of
minors who are victims of human trafficking to communicate
effectively in court or who refuse to testify against their
trafficker can lead to ineffective prosecution of the case. AB
1276 will ensure minors who are victims of human trafficking
are protected from additional trauma by allowing them to
testify in court by means of closed-circuit television."
2)Sixth Amendment Right to Confrontation: The Sixth Amendment
of the U.S. Constitution provides, that "in all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him." (U.S. Const.,
amend. VI.) The constitutional right of the accused to
confront witnesses against him or her is a fundamental right
essential to a fair trial. (Pointer v. Texas (1965) 380 U.S.
400.) Fundamental rights are the most important rights
guaranteed in the Constitution, and the protection of the
right to confrontation is as important as the freedom of
speech and the freedom of religion. The right guaranteed under
the confrontation clause includes the right to face the
person's accuser, requiring the witness to make his or her
statements under oath, thus impressing upon the witness the
seriousness of the matter and guarding against the lie by the
possibility of a penalty for perjury; forcing the witness to
submit to cross-examination; and permitting the jury to
observe the demeanor of the witness in making his or her
statement, thus aiding the jury in assessing the witness's
credibility. (Maryland v. Craig (1990) 497 U.S. 836, 845-846.)
The Sixth Amendment right to confrontation guarantees the
defendant a face-to-face meeting with witnesses against him.
(Maryland v. Craig, supra, 497 U.S. at p. 855, citing Coy v.
Iowa (1988) 487 U.S. 1012, 1016.) The purpose of this
guarantee originates from the desire to prevent conviction by
anonymous accusers and absentee witnesses. (Ibid.)
"[F]ace-to-face confrontation enhances the accuracy of
factfinding by reducing the risk that a witness will
wrongfully implicate an innocent person. . . . ('It is always
more difficult to tell a lie about a person "to his face" than
"behind his back." . . . That face-to-face presence may,
unfortunately, upset the truthful rape victim or abused child;
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but by the same token it may confound and undo the false
accuser, or reveal the child coached by a malevolent
adult.')." (Maryland v. Craig (1990) 497 U.S. at pp. 846-847,
citing Ohio v. Roberts (1980) 448 U.S. 56, 63.)
The right to confront witnesses face-to-face, however, is not an
indispensable element of the confrontation clause. (Maryland
v. Craig, supra, 497 U.S. 836.) The Maryland v. Craig, supra,
case involved sexual abuse of a 6-year-old child. The
prosecutor relied on a state statutory procedure permitting a
judge to receive, by one-way closed circuit television, the
testimony of an alleged child abuse victim upon determining
that the child's courtroom testimony would result in the child
suffering serious emotional distress, such that he or she
could not reasonably communicate. The Supreme Court held that
"the state interest in protecting child witnesses from the
trauma of testifying in a child abuse case is sufficiently
important to justify the use of a special procedure that
permits a child witness in such cases to testify at trial
against a defendant in the absence of face-to-face
confrontation with the defendant." (Maryland v. Craig, supra,
497 U.S. at p. 855.)
The Supreme Court cautioned, however, that their ruling "[t]hat
the face-to-face confrontation requirement is not absolute
does not, of course, mean that it may easily be dispensed
with. As we suggested in Coy, our precedents confirm that a
defendant's right to confront accusatory witnesses may be
satisfied absent a physical, face-to-face confrontation at
trial only where denial of such confrontation is necessary to
further an important public policy and only where the
reliability of the testimony is otherwise assured. (Maryland
v. Craig, supra, 497 U.S. at p. 850.) Four Justices dissented
in the majority opinion. Justice Scalia, writing for the
dissent, stated "[t]he purpose of enshrining this protection
in the Constitution was to assure that none of the many policy
interests from time to time pursued by statutory law could
overcome a defendant's right to face his or her accusers in
court." (Maryland v. Craig, supra, 497 U.S. at p. 861.)
In fact, "[i]n recent years, the Supreme Court of the United
States's understanding of the meaning of this Clause may well
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be the single part of constitutional law - certainly of
criminal procedure - that has undergone the most radical
change.
"Two Supreme Court judgments [in recent years] have introduced
this change and have greatly expanded the right of the accused
in criminal prosecutions to confront the witnesses against
them." (See Fenner, Today's Confrontation Clause (After
Crawford and Melendez-Diaz), (Nov. 2009) 43 Creighton L.Rev.
35, p. 101,
(as of May 1, 2015).) This bill goes against the trend by
limiting a defendant's right to confront his or her accuser.
Moreover, the human trafficking statute authorizes severe
punishments, including substantial terms of imprisonment in
state prison. If the crime involves a minor, a defendant may
face up to 20 years in state prison, and in some instances
imprisonment for 15-years-to-life. (Pen. Code, § 236.1.)
Considering how serious the existing punishments are for human
trafficking, should the Legislature expand the circumstances
that would allow witnesses to avoid a face-to-face
confrontation with the defendant, when the purpose of this
confrontation is to ensure a fair trial?
3)Contemporaneous Testimony for Child Witnesses: Legislative
History: Existing law provides courts with discretion to
authorize a child victim under 14 to testify by means of
closed-circuit television in specified felony cases. The
court must make a finding by clear and convincing evidence
that the impact on the minor is so substantial as to make the
minor unavailable and one or more of the enumerated factors
exist. The court may hear testimony from witnesses such as a
social worker or therapist to establish the impact on the
minor. A child's refusal to testify does constitute sufficient
evidence that the contemporaneous testimony is necessary.
(Pen. Code, § 1347.)
Prior to 1998, this statute applied to child victims 10 years
of age or younger. This statute was amended by AB 1692
(Bowen), Chapter 670, Statutes of 1998, to apply the procedure
to child victims who were 13 years of age or younger. AB
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1692, as amended April 27, 1998, applied these provisions to
child witnesses 15 years of age or younger. "Responding to
the suggestion that section 1347 should be consistent with the
law that punishes more severely lewd acts upon a child 'under
the age of 14' (Assem. Com. on Public Safety, Analysis of
Assem. Bill No. 1692 (1997-1998 Reg. Sess.) as amended Apr.
27, 1998, p. 3; see Sen. Com. on Public Safety, Analysis of
Assem. Bill No. 1692 (1997-1998 Reg. Sess.) as amended June
23, 1998), the Legislature revised the statute to authorize
courts to order the testimony of a minor '13 years of age or
younger' to be taken by closed-circuit television." (People
v. Cornett (2012) 53 Cal. 4th 1261, 1269.)
Notably, the Uniform Law Commission, which is tasked with
providing states with non-partisan, well-conceived and
well-drafted legislation that brings uniformity to state
statutory law, also recommends placing the age limit at 13 for
contemporaneous testimony by a child witness. (Uniform Child
Witness Testimony by Alternative Methods Act, National
Conference on Commissioners on Uniform State Laws, (Aug. 2002)
p. 2.)
4)Enhanced Protections for Children Under 14 Years Old: While a
person under the age of 18 is a minor under the law, the
statute authorizing contemporaneous testimony is more narrowly
tailored to protect young children under the age of 14, not
all minors, from the trauma of facing his or her abuser in
court. Limiting this enhanced protection to children under 14
years old reflects the state's interest in protecting young
children from harm. The state's specific protection of
children under 14 is evidenced by the existence of current
statutes that punish more harshly an act committed against a
child under the age of 14 compared to acts committed against
children 14 and over. (Pen. Code, §§ 264, subd. (c)(1); 264.1,
subd. (b)(1); 271; 286, subd. (c)(2)(B), 288, subd. (a); 288a,
subd. (c)(2)(B); 288.5; 289, subd. (a)(1)(B); 667.61, subd.
(j)(2); 667.8; 667.85; and 667.9.)
Furthermore, the state's juvenile court system also
demonstrates this enhanced protection for minors who are under
the age of 14 and charged with committing a crime. The
statutory framework that authorizes minors to be tried in
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adult court rather than juvenile court for the commission of
serious offenses applies to minors 14 years of age and older.
(Welf. & Inst. Code, § 707, subd. (b).)
The current statute authorizing contemporaneous testimony
through closed circuit television also reflects the existing
enhanced protections that are in place for children under the
age of 14. Because the statute interferes with a defendant's
constitutional right to confrontation, the statute must be
narrowly tailored to serve a compelling state interest. (Globe
Newspaper Co. v. Superior Court (1982) 457 U.S. 596, 607.)
The compelling state interest is the desire to provide
children under 14 with more protections than older children.
This bill would increase the age of child witnesses who may
testify through the use of closed-circuit television from 13
years old and under to 17 years old and under. Allowing the
procedure to be used for all minors may mean that the statute
is no longer narrowly tailored to meet a compelling state
interest as required to maintain the statute's
constitutionality.
5)Support Persons for Victims When Testifying in Court: Under
existing law, a victim of human trafficking crimes and other
specified sex crimes, violent crimes, child abuse or elder
abuse crimes may choose up to two support persons, one of whom
may accompany the witness to the witness stand. The other may
remain in the courtroom. (Pen. Code, § 868.5.) This provision
has been found not to violate the Confrontation Clause of the
Constitution because the witness would still have to testify
in front of the jury and having the support witness sit next
to the witness was similar to having a parent or other family
member sitting in the audience in support of the witness. (See
People v. Johns (1997) 56 Cal.App. 4th 550, 555-556.)
While the statute that authorizes contemporaneous testimony
through closed-circuit television is limited to child
witnesses 13 years of age or under, the statute that provides
support persons for witnesses of specified crimes, including
human trafficking, does not limit the age of the victim or
witness. This provides the victim with support in order to
minimize the trauma of testifying in court but also preserves
a defendant's right to meet his or her accuser face-to-face.
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6)Practical Considerations: According to a law review article
discussing a 2005 amendment to Penal Code Section 1347
authorizing the procedure's use in specified child abuse
cases, the procedure is not preferred by prosecutors because
it results in a loss of emotional impact and therefore less
effective on juries.
"In a 2001 study specifically designed to test closed-circuit
child testimony, researchers found that jurors were no better
at accurately spotting false accusers in face-to-face
testimony than they were via closed-circuit testimony.
Further, the study found that the use of closed-circuit
television actually resulted in a pro-defense bias; that is,
jurors were more inclined to discredit and disbelieve a child
testifying via television than a child sitting in front of
them, even when the child was telling the truth. It was
concluded that the use of closed-circuit television resulted
in 'a loss of emotional impact and immediacy,' meaning the
jurors were less likely to feel empathy for the child's story.
"Indeed, many prosecutors prefer in-court testimony to
closed-circuit for those very reasons. A survey of members of
the National District Attorneys Association showed that only
about seventeen percent of the attorneys surveyed had ever
used closed-circuit testimony for a child witness." (Rowlands,
Cole's Law Confronts Constitutional Issues: Expanding the
Availability of Closed-Circuit Child Testimony in the Face of
the Confrontation Clause (2005) 37 McGeorge L. Rev. 294.)
7)Suggested Amendment: The Committee staff has suggested that
the author delete the provision in this bill that increases
the age of victims who may testify through the use of
closed-circuit television.
8)Argument in Support: According to the Coalition Against
Slavery and Trafficking, "Minors who are victims of human
trafficking are among the most vulnerable and exploited people
in the world. In California, startling numbers of children are
forced into sex and/or labor trafficking each year. Rape,
abuse, isolation, confinement, and emotional, physical, and
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psychological trauma are just some conditions these young
victims face.
"Minors who are victims of human trafficking often experience
Post Traumatic Stress Disorder (PTSD), depression, substance
abuse, suicidal thoughts or behavior, in addition to physical
trauma. Testifying in court can be particularly traumatic for
minors who are victims of human trafficking. Facing the
perpetrator in court and recalling horrifying and personal
details of the abuse forces the victims to relive the crime
mentally and emotionally, leading them to feel as though the
abuse is recurring and re-experiencing a lack of control and
terror. Furthermore, the minor victims' inability to
communicate effectively in court or refusal to testify against
their trafficker can lead to ineffective prosecution of the
case."
9)Argument in Opposition: According to the American Civil
Liberties Union of California, "In Maryland v. Craig, the U.S.
Supreme Court upheld a statute permitting a child witness
alleged to be a victim of abuse to testify by closed circuit
television. The case involved a child who was six at the time
of the abuse and seven at the time of trial. The court held
the 'preferred right of physical presence, or "face-to-face"
confrontation, may be dispensed with only where denial of such
confrontation is necessary to further an important public
policy and only where the reliability of the testimony is
otherwise assured.' (Craig, 497 U.S. at 849-50 [emphasis
added].) The court held that the state's interest in
protecting child-abuse victims could-in specific
cases-outweigh the defendant's right to confront his or her
accusers in person in the courtroom. (Craig, 497 U.S. at 853.)
"In Craig, the court emphasized several times the state's
special interest in protecting the victims of child abuse
outweighed the infringement on the accused person's
constitutionally protected right to confront the witnesses.
Notably, the court had previously held that allowing teenage
victims of alleged sexual abuse to testify from behind a
screen violated the Confrontation Clause. (Coy v. Iowa (1988)
487 US 1012, 1017.) While the court in Craig did not
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establish a specific age limit for the use of closed circuit
television, the Coy decision demonstrates that the court does
not view teenage witnesses through the same lens as younger
children.
"By expanding the use of closed circuit television to teenage
witnesses, AB 1276 strays too far from the limited
circumstances in which this procedure has been approved by the
U.S. Supreme Court. AB 1276 is thus likely to lead to
violations of the Sixth Amendment Confrontation Clause."
10)Related Legislation: SB 176 (Mitchell) would codify existing
case law that allows a minor 13 years of age or younger to
testify by way of closed circuit television if the testimony
would involve the recitation of facts of an alleged violent
felony, whether or not the minor was a victim. SB 176 is
pending referral from the Assembly Rules Committee.
11)Prior Legislation:
a) SB 138 (Maldonado), Chapter 480, Statutes of 2005, added
specified child abuse and child endangerment cases to the
list of instances when closed-circuit testimony is
permissible for child witnesses.
b) SB 1559 (Figueroa), Chapter , Statutes of 2002, deleted
the sunset date of January 1, 2003, in provisions of law
which allow a minor 13 years of age or younger to testify
by way of closed-circuit television under specified
circumstances.
c) AB 1692 (Bowen), Chapter 670, Statutes of 1998, allows a
minor 13 years of age or younger to testify at trial or a
preliminary hearing by way of closed-circuit television
where the court finds by clear and convincing evidence that
the victim would otherwise be unavailable.
d) AB 1077 (Cardoza), Chapter 669, Statutes of 1998,
authorized the testimony of a child 10 years of age or
under who is the victim of a violent crime to be
transmitted to the courtroom by way of closed-circuit
television.
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REGISTERED SUPPORT / OPPOSITION:
Support
Alameda County District Attorney's Office
California Catholic Conference
California District Attorneys Association
California State Lodge, Fraternal Order of Police
Children's Law Center of California
Coalition to Abolish Slavery and Trafficking
Consumer Attorneys of California
Court Appointed Special Advocates for Children of Los Angeles
Katherine & George Alexander Community Law Center, Santa Clara
University
League of California Cities
Long Beach Police Officers Association
Los Angeles County Professional Peace Officers Association
Mary Magdalene Project
National Council of Jewish Women California
Sacramento County Deputy Sheriffs' Association
Santa Ana Police Officers Association
One private individual
Opposition
American Civil Liberties Union of California
California Attorneys for Criminal Justice
California Public Defenders Association
Analysis Prepared
by: Stella Choe / PUB. S. / (916) 319-3744
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