BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 176 Hearing Date: April 7, 2015
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|Author: |Mitchell |
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|Version: |March 18, 2015 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|MK |
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Subject: Examining Children as Witnesses
HISTORY
Source: Californians for Safety and Justice
Prior Legislation: AB 1900 (Quirk) - Ch. 160, Stats. of 2014
SB 138 (Maldonado) - Ch. 480,
Stats. of 2005
AB 20 (Lieber) - Ch. 823, Stats.
of 2004
AB 2143 (Maldonado) - 2004, failed
passage, Assembly Committee on
Public Safety
SB 1559 (Figueroa) - Chapter 96,
Stats. of 2002
SB 1715 (Ortiz) - Chapter 207,
Stats. of 2000
AB 1692 (Bowen) - Chapter 670,
Stats. of 1998
AB 1077 (Cardoza) - Chapter 669,
Stats. of 1998
Support: California District Attorneys Association
Opposition:California Public Defenders Association
SB 176 (Mitchell ) Page
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PURPOSE
The purpose of this bill is to allow a child witness to a
violent felony to testify by contemporaneous examination and
cross-examination through closed-circuit television, as
specified, whether or not the minor is a victim.
Existing law provides that in all criminal prosecutions, the
accused shall enjoy the right ... to be confronted by the
witnesses against him ? (U.S. Constitution, Amendment VI.)
Existing law provides that when a defendant is charged with
specified sex offenses, child abuse, lewd and lascivious acts on
a child, and the victim either is a person 15 years of age or
less or is developmentally disabled as a result of an
intellectual disability, as specified, the people may apply for
an order that the victim's testimony at the preliminary hearing,
in addition to being stenographically recorded, be recorded and
preserved on videotape. (Penal Code, § 1346(a).)
Existing law states that at the time of trial, if the court
finds that further testimony in any of the qualifying cases
would cause the victim emotional trauma so that the victim is
medically unavailable or otherwise unavailable within the
statutory definition of unavailability, the court may admit the
videotape of the victim's testimony at the preliminary hearing,
as specified. (Penal Code, § 1346(d).)
Existing law establishes that a videotape prepared for court
testimony is subject to a protective order of the court to
protect the privacy of the victim and must be made available to
the prosecuting attorney, the defendant, and his/her attorney
for viewing during business hours. The videotape is to be
destroyed five years from the date of judgment, unless an appeal
is filed. (Penal Code, § 1346(e), (f), and (g).)
Existing law provides that when a defendant is charged with
spousal rape or infliction of corporal injury resulting in a
traumatic injury to a spouse, former spouse, or domestic
partner, the people may apply for an order that the victim's
testimony at the preliminary hearing, in addition to being
stenographically recorded, be recorded and preserved on
videotape. If the victim's testimony at the preliminary hearing
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is admissible, the videotape recording may be introduced as
evidence at trial (Penal Code, § 1346.1(a) and (d).)
Existing law allows, in cases where a minor, 13 years or
younger, will testify that a sexual offense was committed
against or with the minor, or that the minor was a victim of a
violent felony, as defined, that the minor may testify by way of
contemporaneous examination and cross examination in another
location and communicated to the courtroom by closed-circuit
television if the court finds that the impact on the minor of
one or more of the following is shown by clear and convincing
evidence to make the minor unavailable as a witness unless
closed-circuit television is used:
a) 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;
b) The defendant used a deadly weapon in the commission of
the offense;
c) Threats of serious bodily injury to be inflicted on the
minor or a family member, of incarceration or deportation
of the minor or a family member, or of removal of the minor
from the family or dissolution of the 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 the prosecution;
d) The defendant inflicted great bodily injury upon the
child in the commission of the offense; or,
e) 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. (Penal Code §
1347(b).)
This bill would allow a child witness to a violent crime to also
testify by contemporaneous examination and cross examination in
another location communicated to the courtroom by closed-circuit
television when the factors are met.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
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Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
Across the United States, thousands of children
testify each year as both witnesses and victims in a
variety of legal settings, from family court
proceedings to serious criminal cases. The number of
children called to testify has increased steadily
since the 1990's, especially as new research emerged
indicating that memory accuracy in minors is better
than previously thought. However, even though
children are capable of accurately reporting past
events, for many, the pressures associated with
testifying in a courtroom can severely limit their
ability to
accurately testify. This is especially true in cases
involving a criminal defendant with whom the child
witness has had a violent, abusive, or otherwise
scarring relationship or interaction.
In an attempt to protect child witnesses from such
traumatizing experiences, many states have enacted
statutes that allow the judges to employ alternative
witness examination procedures. These alternative
procedures include the use of two-way closed-circuit
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television to receive child witness testimony, the
provision of "comfort items" for the child, the
provision of a physical partition between the child
and defendant, and the relocation of certain parties
within the courtroom to make the child more
comfortable. Unfortunately, many of these state
statutes suffer from a crucial deficit with regard to
child witnesses in criminal cases: they only
explicitly provide protections for child witnesses who
are the direct victims of the alleged crime.
California law suffers from this shortcoming.
This bill would remedy that deficiency by expressly
extending to non-victim child witnesses specific
protections available to victim child witnesses under
California Penal Code § 1347. Additionally, it would
give extra weight to the interests of the child
witness-victim or non-victim-in any court
determination regarding whether these protections
should be provided in a given case.
2. Child Witnesses
Under existing law, a child victim of a violent felony can
testify by closed circuit television if the court finds by clear
and convincing evidence that the impact on the minor is so
substantial as to make the minor unavailable and one or more
factors exist. Courts have found that this section does not
violate the confrontation clause. (See for example People v.
Powell (2011) 194 Cal App. 4th 1268.)
This bill would extend this law to include a child witness who
is not the victim of a violent crime. At least one trial court
applied this section to a child witness and an appellate court
upheld the court's ability to do so:
We hold that the trial court possessed the inherent
authority to permit the use of two-way, closed-circuit
TV for a child witness after the necessity for that
procedure was demonstrated, even though she was not a
victim. In light of this holding, we need not address
the State's alternative argument that Vanessa was a
"victim," within the meaning of section 1347,
subdivision (b), of various uncharged crimes. (People
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v. Lujan (2012) 211 Cal. App. 4th 1499, 1508)
The author believes this bill will "establish much-needed
support systems for non-victim minors who testify in criminal
court proceedings."
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