BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 176| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: SB 176 Author: Mitchell (D) and Anderson (R), et al. Amended: 3/18/15 Vote: 21 SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/7/15 AYES: Hancock, Anderson, Leno, Liu, McGuire, Monning, Stone SUBJECT: Examining children as witnesses SOURCE: Author DIGEST: This bill authorizes a minor 13 years of age or younger who is a witness but not a victim to testify by contemporaneous examination and cross-examination under specified circumstances. ANALYSIS: Existing law: 1)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.) 2)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).) SB 176 Page 2 3)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).) 4)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).) 5)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 is admissible, the videotape recording may be introduced as evidence at trial. (Penal Code, § 1346.1(a) and (d).) 6)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 SB 176 Page 3 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: 1)Allows a child witness to a violent crime to also testify by contemporaneous examination and cross examination of the witness when the factors are met. Background 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 extends this law to include a child witness who is not the victim of a violent crime. Please see policy committee analysis for full discussion of this SB 176 Page 4 bill. FISCAL EFFECT: Appropriation: No Fiscal Com.:NoLocal: No SUPPORT: (Verified4/8/15) California District Attorneys Association Californians for Safety and Justice National Association of Social Workers, California Opposition: (Verified 4/8/15) California Public Defenders Association Prepared by:Mary Kennedy / PUB. S. / 4/8/15 15:13:17 **** END ****