BILL ANALYSIS Ó
AB 1276
Page 1
Date of Hearing: January 12, 2016
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
1276 (Santiago) - As Amended January 4, 2016
SUMMARY: Authorizes a minor, 17 years of age or younger, to
testify at trial out of the presence of the defendant and jury
by way of closed-circuit television in human trafficking cases.
Applies the same procedures as currently permitted for allowing
a minor, 13 years of age or younger, to testify by means of
closed-circuit television in specified cases provided the court
makes certain findings.
EXISTING LAW:
1)States that it is the intent of the Legislature 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 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 an individual case present compelling
evidence of the need to use these alternative procedures.
(Pen. Code, § 1347, subd. (a).)
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2)Authorizes a court in a 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:
i) An alleged sexual offense committed on or with the
minor;
ii) An alleged violent felony, as defined; 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
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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.
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).)
3)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).)
4)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, §
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1347, subd. (d)(3).)
5)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).)
6)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
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).)
7)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).)
8)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).)
9)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) 5, 8, or 12 years and a fine of not more than $500,000;
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or,
b) 15-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 traumatic for victims of human trafficking who
are minors. Facing the perpetrator in court and being asked to
recall horrifying details of the crime can cause severe
emotional distress. When personally facing the perpetrator
makes effective communication in court difficult or leads a
minor fearing retaliation to refuse to testify, the result is
often ineffective prosecution. AB 1276 will ensure that
minors 17 years and younger who are victims of human
trafficking are protected from experiencing additional trauma
by allowing them to testify in court via closed-circuit
television, while preserving the integrity of the court's
truthfinding function."
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
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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;
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.)
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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
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,
< http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1507257 >
(as of May 1, 2015).) This bill goes against the trend by
eroding 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 face-to-face confrontation
with the defendant, when the purpose of this confrontation is
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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
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.)
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. (Pen. Code, § 1347.) Limiting this enhanced
protection to children under 14 years old reflects the state's
interest in protecting young children from harm, while still
balancing the rights of the defendant and protecting the
integrity of the judicial process. (Pen. Code, § 1347, subd.
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(a).)
The state's deliberate 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 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).)
Because Penal Code Section 1347 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 create a new statute authorizing a witness
under the age of 18 to testify through the use of
closed-circuit television in human trafficking cases.
Allowing this procedure to be used for all minors in human
trafficking cases, rather than those under 14 years of age,
may mean that the procedure is not narrowly tailored to meet a
compelling state interest as required to pass constitutional
muster.
5)Argument in Support: According to 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
psychological trauma are just some conditions these young
victims face.
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"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."
6)Argument in Opposition: According to the American Civil
Liberties Union of California, "The Sixth Amendment to the
United States Constitution guarantees that "[i]n all criminal
prosecutions, the accused shall enjoy the right?to be
confronted with the witness against him." (U.S. Const. Amend.
VI.) The right of confrontation has long been considered "one
of the fundamental guarantees of life and liberty." (Kirby v.
United States (1899) 174 U.S. 47, 55; see also Giles v.
California (2008) 554 U.S. 353.) Cross-examination is a core
component of the truth-seeking process in our adversarial
system. The U.S. Supreme Court has noted that, "face-to-face
confrontation enhances the accuracy of factfinding by reducing
the risk that a witness will wrongfully implicate an innocent
person." (Maryland v. Craig (1990) 497 U.S. 836, 846.) The
court has acknowledged the burden this places on some
witnesses:
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; but by the same
token it may confound and undo the false accuser, or
reveal the child coached by a malevolent adult.
(Coy v. Iowa (1988) 487 U.S. 1012, 1019-20.)
"Historically, California has been very cautious about
enacting legislation that could undermine the criminal
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factfinding process or inadvertently lead to wrongful
convictions. Given these important considerations, the
state's existing closed circuit television testimony statute
explicitly limits the use of the procedure only to children 13
years of age and younger, and even then only in specified
circumstances. When faced with a previous proposal to expand
the statute and increase the age to 15, the Legislature
specifically rejected the proposal and instead drew the line
at 13, determining that age to be the appropriate age at which
to limit the statute. Notably, this line appears in over 25
other state statutes, the state having chosen time and again
to treat children 13 years of age and younger differently from
older individuals. (Footnotes omitted.)
"By expanding the use of closed circuit television to teenage
witnesses up to age 17, AB 1276 strays too far from the
limited circumstances in which the procedure has previously
been applied, and threatens to undermine our criminal
process."
7)Related Legislation: SB 176 (Mitchell), Chapter 155, Statutes
of 2015, codifies 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.
8)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 96, 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,
increased the age from 10 years old and younger to 13 years
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old or younger for child witnesses who may be permitted 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.
REGISTERED SUPPORT / OPPOSITION:
Support
Alameda County District Attorney's Office
California Catholic Conference
California District Attorneys Association
California Peace Officers' 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
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Analysis Prepared
by: Stella Choe / PUB. S. / (916) 319-3744