By Kristin Eriksson-Embree
Special issues arise whenever children under 18 years of age are called upon to testify in California courts. Judges and litigants should be familiar with the balance that must be struck between protecting the child and ensuring that the substance of the testimony is not significantly altered.
The objective of this article and self-study test is to review the most important statutes and appellate cases governing child witnesses. Readers will learn about protecting the child witness as well as protecting the integrity of the judicial process. Topics include protecting the child's welfare during court proceedings and factors affecting a minor witness's competency and credibility.
A minor's name may be withheld from the public record upon request of the minor or his parents or guardians, if he or she is the victim of specified child abuse and sexual abuse offenses. Government Code Section 6254(f)(2). Documents may be redacted or sealed to protect identity of a victim who is a minor in sexual abuse cases because the protection of minors who are victims of sex crimes from the trauma and embarrassment of public scrutiny can justify limiting public access. People v. Jackson, 128 Cal.App.4th 1009 (2005).
Several code sections are not specific to minors, but can also be used in situations where minors are witnesses. For example, a victim's address and telephone number may be excluded from evidence upon written notice to the defense in any criminal proceeding involving specified sex crimes committed with force, violence, duress, menace, or threat of great bodily harm, if the court finds that the danger to the victim outweighs the probative value of the evidence. Evidence Code Section 352.1.
Another provision that applies to both minors and adults provides that attorneys may not disclose any victim's or witness's address or telephone number to the defendant or to anyone else, unless specifically permitted to do so by the court, after a hearing establishing good cause. Penal Code Section 1054.2. If a defendant acts as his or her own attorney, the court must try to protect this information by imposing reasonable restrictions, such as providing the information only to the unrepresented defendant's investigator.
Upon a finding of good cause, the court can issue an order protecting a victim of a violent crime, including a minor victim, from all contact or specified contact by a criminal defendant. Good cause for such restraining orders must be based on a belief that harm to, or intimidation of, the victim will result absent the order. Penal Code Section 136.2. Orders under this section must be limited in duration to the pending criminal proceedings. People v. Selga, 162 Cal.App.4th 113 (2008).
Additionally, under Penal Code Section 273b, a child under the age of 16 is not allowed in a courtroom or vehicle with an adult charged with or convicted of a crime unless a proper official is also present.
Criminal cases that involve minors who are victims or material witnesses are given priority in the order of trials over all other criminal and civil cases that do not involve the death penalty. Penal Code Section 1048(b).
A preliminary examination in a felony case may be postponed for one day to accommodate the special physical, mental, or emotional needs of a minor witness who is 10 years of age or younger. Penal Code Section 861.5. Good cause for a continuance is implied when a trial involves child abuse, or sexual abuse of a minor, as defined in Penal Code Sections 11165.6 and 11165.1(a), and the assigned prosecutor is engaged in another proceeding. Penal Code Section 1050(g)(2).
A criminal trial involving a minor who is a victim or material witness is to be commenced within 30 days after the defendant's arraignment, unless a continuance is necessary. Continuances may only be granted upon a showing of good cause, which must be established at a hearing. Penal Code Section 1048(b).
A minor victim may be excluded from the audience at a trial when an overriding interest, such as safeguarding his or her physical and psychological well-being, will be adversely affected by his or her presence. Penal Code Section 1102.6(b)(1)(F).
The environment in which the minor's testimony is given may also be altered to protect him or her. In specified criminal cases, a witness who is a minor may choose up to two support persons to be present, one of whom may accompany him or her to the witness stand to testify. One of these support persons may also be a prosecution witness in the case, but that person's testimony must be presented before the minor's testimony and the minor witness must be excluded from the courtroom at that time. Penal Code Section 868.5.
When a minor victim who is under the age of 11 testifies and is a victim of sexual abuse or child abuse, the judge may remove his or her robe and may relocate the parties, the jury, and members of the court to create a more intimate setting. Penal Code Section 868.8(b)-(c).
A spectator may be removed from the courtroom if he or she is actively intimidating a witness who is a minor in a way that would restrict the witness' testimony, if there are no alternative means of providing for the witness' full, free, and complete testimony. However, this section may not be used to exclude either members of the press or the defendant. Penal Code Section 686.2.
Any criminal proceeding involving child abuse or sexual abuse of a minor who is under 16 years of age may be closed to the public if, upon the prosecution's motion, the court finds that the minor's reputation would be affected. Penal Code Section 859.1(a). Moreover, any criminal proceeding involving child abuse or sexual abuse of a minor may be closed for his or her testimony if there is an overriding interest that otherwise cannot be met, and the closure is no broader than necessary. The trial court must make specific findings regarding necessity, and it is advisable to conduct an evidentiary hearing. People v. Baldwin, 142 Cal.App.4th 1416 (2006). Preliminary examinations may be closed to the public in cases involving sexual abuse of a minor upon a showing that the minor would sustain psychological harm from testifying before the general public, and there are no other means available to avoid the harm. Penal Code Section 868.7(a)(1).
The circumstances under which a minor's testimony is given may also be altered. A minor witness's preliminary hearing testimony may be videotaped and used during trial if the minor is 15 years or younger, is the victim of specified child abuse or sexual abuse, and is unavailable to testify because doing so would cause emotional trauma. Penal Code Section 1346. A minor is also deemed unavailable as a witness when he or she is exempted or precluded on the ground of privilege; disqualified; dead or unable to attend because of a present physical or mental illness; or absent and the court or proponent of his or her statement cannot compel the witness to attend. Evidence Code Section 240. The proponent of the testimony must show due diligence to procure the minor witness's attendance. People v. Herrera, 49 Cal.4th 613 (2010).
The testimony of a witness who is a minor may also be transmitted by means of closed-circuit television if compelling circumstances require it. Penal Code Section 1347.
A minor's testimony may be stopped to allow for breaks and may be limited to normal school hours if he or she is under 11 years of age and has been the victim of specified child abuse or sexual abuse. Penal Code Section 868.8. When a witness is under 14 years of age, the court must protect him or her from undue trauma and limit questions that are unnecessarily repeated or presented in a form that is inappropriate to his or her age or cognitive level. The court may also forbid questions that are not reasonably likely to be understood by a person of the minor's age or cognitive level, upon objection by either party. Evidence Code Section 765(b).
Finally, a minor is protected from libel and slander lawsuits. Persons accused of child abuse are barred from bringing a civil libel or slander suit against the accusing minor, the minor's parents or guardians, or any witness in the case for statements made while the criminal charges are pending, as long as the statements were reasonably believed to be in furtherance of the prosecution. Civil Code Section 48.7.
If there is good cause to believe that a minor who is a material witness will not appear and testify at a criminal proceeding, the court may order him or her to sign a written agreement to appear or post a security. If the minor refuses to do so, the court may commit him or her to the custody of a probation officer or other appropriate agency. Penal Code Section 1332(a)-(b). Section 1332 has been held to be constitutional. In re Francisco M., 86 Cal.App.4th 1061 (2001).
Once a minor's attendance is secured, the court must consider several factors in ascertaining the minor's competency to testify. Youth is not, per se, a sufficient reason to disqualify a witness, but a minor witness must still be competent to testify. Evidence Code Section 700. A minor must be disqualified as a witness if he or she does not understand the duty to tell the truth or cannot express him or herself on the matter in a way that can be understood. Evidence Code Section 701.
A minor's capacity to perceive and to recollect is not a factor that determines competency, but may be given weight as to his or her credibility by the trier of fact. The capacity to perceive and to recollect may also be a condition for the admissibility of a witness' testimony on a specific matter that requires personal knowledge. People v. Lewis, 26 Cal.4th 334 (2001).
The credibility of a minor witness must be assessed in light of the trauma he or she may have experienced; the minor's age; the lapse of time between the event and the testimony; the number of interviews conducted about the event; and whether the interview process may have directed the minor to recall events erroneously. In re Sodersten, 146 Cal.App.4th 1163 (2007).
If the court finds the minor competent, it can use a special oath. The court may, at its discretion, allow a witness who is under 10 years of age to promise to tell the truth rather than take the standard oath. Evidence Code Section 710.
Once the minor is on the witness stand, special rules and procedures apply. A witness who is under 10 years of age may be asked leading questions in a criminal case that involves specified child abuse or sexual abuse. Evidence Code Section 767(b). The court must admonish the prosecution and defense against coaching the minor witness prior to his or her next appearance when a proceeding is postponed to accommodate the minor. Penal Code Section 861.5. The court must also admonish witness support persons against attempting to prompt, sway, or influence the witness in any way. Penal Code Section 868.5(b).
Special jury instructions guide how a minor's testimony is to be assessed. At the request of a party in a criminal proceeding involving a witness who is 10 years of age or younger, the court must instruct the jury that it has to consider all factors surrounding the testimony, but that a child may perform differently as a witness than an adult, which does not mean that the child is any more or less credible than an adult witness, nor should the jury discount the minor's testimony solely because he or she is a child. Penal Code Section 1127f.
This instruction has been held to strengthen the minor witness's credibility in a way that does not violate a criminal defendant's constitutional rights. People v. McCoy, 133 Cal.App.4th 974 (2005). CALCRIM 330, as well as its earlier counterpart, CALJIC 2.20.1, set forth the precise language that should be used.