BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1276|
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THIRD READING
Bill No: AB 1276
Author: Santiago (D), et al.
Amended: 8/2/16 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/28/16
AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone
ASSEMBLY FLOOR: 77-0, 1/19/16 - See last page for vote
SUBJECT: Child witnesses: human trafficking
SOURCE: Author
DIGEST: This bill authorizes a minor, 15 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.
ANALYSIS:
Existing law:
1)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. (Penal Code § 236.1 (a).)
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2)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. (Penal
Code § 236.1 (b).)
3)Specifies that 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 either 5, 8,
or 12 years and a fine of not more than $500,000; or,
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. (Penal Code § 236.1 (c).)
4)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.
(Penal Code § 1347 (a).)
5)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
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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:
iv) 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.
v) The defendant used a deadly weapon in the commission
of the offense.
vi) 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
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proceeding, or to prevent the minor from reporting the
alleged sexual offense, or from assisting in criminal
prosecution.
vii) The defendant inflicted great bodily injury upon the
child in the commission of the offense.
viii) 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. (Penal Code § 1347 (b).)
1)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. (Penal Code § 1347 (b)(2)(E).)
2)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. (Penal Code §
1347 (d)(3).)
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3)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. (Penal Code § 1347 (h).)
4)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. (Penal Code, § 1347 (a).)
This bill authorizes a minor 15 years of age or younger to
testify at trial out of the presence of the defendant and the
jury by way of closed circuit television in a human trafficking
case.
Background
1)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
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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;
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 six-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.
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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' 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 MelendezDiaz), (Nov. 2009) 43 Creighton L.Rev.
35, p. 101, (as of May 1, 2015).)
2)Closed Circuit Television in Human Trafficking Cases
Existing law allows for contemporaneous testimony by closed
circuit television in a case where a child under the age of 14
is a victim of a sex or violent offense when specified
conditions are met. This bill takes that existing framework
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and applied it to victims of human trafficking who are under
the age of 15.
Unlike the trend noted in the discussion of the case law
above, this bill appears to further erode a defendant's right
to confront his or her accuser. In addition, 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. (Penal Code, § 236.1.)
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified8/2/16)
Alameda County District Attorney
California Catholic Conference
California Coalition for Youth
California District Attorneys Association
California Peace Officers' Association
California State Lodge
CASA of Los Angeles
Children's Law Center of California
City of Oakland
Coalition to Abolish Slavery and Trafficking
Consumer Attorneys of California
Fraternal Order of Police
Judicial Council of California
Junior Leagues of California State Public Affairs Committee
League of California Cities
Long Beach Police Officers Association
Los Angeles County Professional Peace Officers Association
Los Angeles County Sheriffs' Department
Mary Magdalene Project, Inc.
National Council of Jewish Women California
Peace Officers Research Association of California
Sacramento County Deputy Sheriffs' Association
Sacramento County Sheriff's Department
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San Diego County District Attorney
Santa Ana Police Officers Association
Santa Clara University's Katherine and George Alexander
Community Law Center
One individual
OPPOSITION: (Verified8/2/16)
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children
ARGUMENTS IN SUPPORT: The San Diego County District Attorney
supports this bill stating:
Testifying in court can be particularly traumatic for
minors who are victims of human trafficking. Facing the
perpetrator in court and recalling the 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.
It is important that California protects minors who are
victims of human trafficking from additional trauma
during criminal proceedings. By allowing victims of human
trafficking who are 17 years of age or younger to testify
out of the presence of the judge, jury , defendant(s),
and attorneys by means of closed-circuit television, AB
1276 will protect minors from suffering additional
trauma.
ARGUMENTS IN OPPOSITION: The American Civil Liberties Union
opposes this bill stating:
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Page 10
By expanding the use of closed circuit television to
teenage witnesses, AB 1276 strays too far from the
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 right to confront witnesses, as
protected by the Sixth Amendment Confrontation Clause.
ASSEMBLY FLOOR: 77-0, 1/19/16
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,
Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang,
Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dahle, Daly, Dodd,
Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia,
Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray,
Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones,
Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low,
Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin,
Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Rendon,
Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark
Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams,
Wood, Atkins
NO VOTE RECORDED: Dababneh, Olsen
Prepared by:Mary Kennedy / PUB. S. /
8/3/16 19:20:43
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