Amicus Curiae Brief — Maryland v. Craig

No. 89-478

In The

Supreme Court of the United States

October Term, 1989

-@—

STATE OF MARYLAND,

Petitioner,

SANDRA ANN CRAIG,

Respondent.

+

On Writ Of Certiorari To The

Court of Appeals Of Maryland

>

BRIEF OF AMICUS CURIAE,

THE APPELLATE COMMITTEE OF THE

CALIFORNIA DISTRICT ATTORNEY’S

ASSOCIATION, IN SUPPORT OF PETITIONER

+

Epwarp R. JAGELS

District Attorney of Kern

County, California

*JONATHAN B. CONKLIN,

Deputy District Attorney

JerFrey T. Even,

Deputy District Attorney

*Counsel of Record

Kern County District Attorney

1215 Truxtun Ave.

Bakersfield, CA 93301

(805) 861-2421

Attorneys for Amicus Curiae

The Appellate Committee

of the California District

Attorney's Association

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES CITED.................. ii

rr 2s Oe oka decsepenescesent 1

OPINION BELOW.............. igeapapenssekusndiy 2

STATEMENT OF THE CASE..................005- 3

SUMMARY OF ARGUMENT.....................5. 4

SE ch nde cebbudbbebonwnsscsceicvseodennces 5

I. THE SIXTH AMENDMENT REQUIRES THAT

IN ALL CRIMINAL PROSECUTIONS THE AC-

CUSED SHALL ENJOY THE RIGHT TO BE

CONFRONTED WITH THE WITNESSES

GEST PE ao vceccccclkevesescesscvacscceces 5

Il. THE CONFRONTATION CLAUSE iS NOT IM-

PLICATED BY A PROCEDURE BY WHICH A

CHILD WITNESS TESTIFIES VIA TWO-WAY

CLOSED CIRCUIT TELEVISION .............. 6

Ill. TESTIMONY VIA TWO-WAY CLOSED CIR-

CUIT TELEVISION SERVES ALL THE INTER-

ESTS PROTECTED BY THE CONFRONTATION

CLAUSE AND THEREFORE IS A SIXTH

AMENDMENT CONFRONTATION ............ 9

SEE 6 6s pAb cccvenencecnccecscdsocccestéas 11

ii

TABLE OF AUTHORITIES

Cases

California v. Green, 399 U.S. 149 (1970) ........ — S

Coy v. lowa, 487 U.S. __, 101 L.Ed.2d 857 (1988). passim

Craig v. State, 316 Md. 551, 560 A.2d 1120 (1989)

oe occcccccceccecesseeee een 2, 3, 6, 8, 9

Lee v. Illinois, 476 U.S. 530 (1986) ................4..- 5

Wildermuth v. State, 310 Md. 496, 530 A.2d 275

i / 7

RULES AND REGULATIONS

Supreme Coust Rule 373 .....cccsessenucueuaneennnen 1

Unritep States CONSTITUTION

Sixth Amnemeimemt .<...occccecensesnseee 5, 7,9

STATUTES

Alaska Stat. Sec. 12.45.046 (Supp.1988) ............... 5

Ariz. Rev. Stat. Ann. Sec. 13-4251 and 13-4253

Cupp. 19G8). .......cccccccsccesenanes enna 5

Calif. Pen. Code Ann. Sec. 1347 (1989)............... 6

Conn. Gen. Stat. Sec. 54-869 (West Supp.1989)........ 5

Fla. Stat. Ann. Sec. 92.53 (West Supp.1989)........... 5

Ga. Code Ann. Sec. 81-1006.2 (Supp.1989)............ 5

Ind. Code Ann. Sec. 35-37-4-8(d) (Burns

Supp. ISGP) ......cccccccessccecceceeeeneennnnnane 5

Kan. Stat. Ann. Sec. 22-3434 (1988)................... 5

ili

TABLE OF AUTHORITIES - Continued

Page

Ky. Rev. Stat. Ann. Sec. 421.350 (Baldwin

GES EES COLT TET ETITELETETE TELE 5

Md. Cts. & Jud. Proc. Code Ann. Sec. 9-102

MERC a daweeseuccccscsencsccsseses 5

Mo. Ann. Stat. Secs. 491.680(2) (Vernon

UTNE Seb dnghesSbescececesecsescccccccccce 5

N.H. Rev. Stat. Ann. Sec. 517.13-a (Supp.1988)........ 5

N.J. Rev. Stat. Sec. 2A:84A-32.4 (West Supp.1989) ..... 5

N.Y. Crim. Proc. Law Secs. 65.00-.30 (McKinney

CURR RRA iddGSeddaccnnabisscccccccecces 6

Ohio Rev. Code Ann. Sec. 2907.41 (Supp.1987) ....... 6

Utah Code Ann Sec. 77-35-15.5 (Supp.1989) .......... 6

EOE USUNE Gane nSS665060seccccccsccecs 6

Wis. Stat. Sec. 967.04(7)(a) (Supp.1988) ............... 6

CONSENT OF PARTIES TO

FILE AMICUS CURIAE BRIEF

Amicus Curiae, The Appellate Committee of the Cali-

fornia District Attorney’s Association, is filing this brief

with the written consent of all parties to the above-

entitled case. The consent has previously been lodged

with the Clerk of Court. (See: Rule 37.3; Rules of the

Supreme Court of the United States)

>

INTEREST OF AMICUS CURIAE

The Appellate Committee of the California District

Attorney’s Association is a committee created by the Dis-

trict Attorneys of the State of California. It has been

established in order to utilize and coordinate the re-

sources of the District Attorneys throughout the state for

the purpose of presenting their views on behalf of the

People of the State of California in cases which may have

major impact upon the prosecution of criminal cases.

Upon review of the instant matter - which raises the

question of the competing states interests in protecting a

child witness from the trauma of face-to-face testimony

before a defendant and the defendant’s right of confron-

tation at trial - the committee has concluded that the

outcome of this case will have substantial impact upon

the administration of criminal justice throughout Califor-

nia. It is for this reason that the committee has filed an

Amicus Curiae brief herein.

Amicus, The Appellate Committee of the California

District Attorney’s Association, join in the views ex-

pressed by petitioner, State of Maryland, and the other

Amici in support of petitioner. This Amicus, however,

chooses to present a narrowly focused analysis of the

case.

The protection of the child witness is an important

public policy that demands that procedural devices be

utilized to protect the child witness at all stages of the

criminal process. A threshold question in any analysis of

this important public policy, with respect to the defen-

dant’s right to confrontation, is whether the confrontation

clause is even implicated. This court’s decision in Coy v.

lowa, 487 U.S. __, 101 L.Ed.2d 857 (1988), indicates that

procedures such as that used by the State of California -

two way closed circuit television — satisfies the defen-

dant’s right to confrontation of witnesses without raising

issues under the confrontation clause.

Amicus will demonstrate that the Court of Appeals

of Maryland erred in concluding that the confrontation

clause requires a face-to-face physical confrontation be-

tween the defendant and his child accuser. Amicus offers

the procedure adopted by the State of California as an

example of a method that satisfies the interests of both

the accuser and the accused.

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OPINION BELOW

The opinion of the Court of Appeals of Maryland is

reported as Craig v. State, 316 Md. 551, 560 A.2d 1120

(1989).

STATEMENT OF THE CASE

This case arose from an indictment handed down by

the Howard County, Maryland, Grand Jury, charging re-

spondent with various offenses involving the sexual

abuse of children. Seeking to avoid the trauma to the

children necessarily involved in testifying in the direct

physical presence of the defendant, the court utilized a

Maryland statute whereby the children testified via one-

way closed circuit television.

Before utilizing this procedure, a special hearing was

held to determine the effect on the children of testifying

in the defendant’s physical presence. The children did not

testify during this hearing; instead the Court based its

opinion on expert testimony. The children’s testimony

was elicited at trial by way of one-way closed circuit

television. The jury convicted the respondent of all

charges against her.

The Maryland Court of Appeals reversed the convic-

tion. The Court held that the procedures used to deter-

mine how the child testified at trial violated the

defendant’s Sixth Amendment right of confrontation. The

Court based its holding on the conclusion that the Sixth

Amendment required testimony from the children in the

direct physical presence of the defendant. This testimony

could occur either at trial or at a pretrial hearing held to

determine whether the child would be unable to “rea-

sonably communicate” in the physical presence of the

defendant because of the serious emotional distress on

the children produced by the presence of the defendant.

Craig v. State, 316 Md. 551, __, 560 A.2d 1120, 1127

(1989).

Amicus, The Appellate Committee of the California

District Attorney’s Association, contends that the Mary-

land Court erred in requiring the children to be trau-

matized by testifying in the physical presence of the

defendant in a hearing held expressly to avoid that trau-

ma.

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SUMMARY OF ARGUMENT

The Sixth Amendment to the United States Constitu-

tion provides for a right of confrontation of witnesses

against a criminal defendant. An examination of this

court’s decision in Coy v. lowa, 487 U.S. __, 101 L.Ed.2d

857 (1988), demonstrates the necessity of a two-step anal-

ysis of the confrontation clause. Those two steps consist

of first, whether a confrontation has occurred and second,

if not, whether an exception exists excusing the lack of

confrontation. Amicus addresses primarily the first of

those two steps.

The Court below erred in setting forth too strict a

definition of confrontation. The Sixth Amendment does

not require that a child witness be traumatized by testify-

ing in the physical presence of the accused in a hearing

held expressly to avoid that trauma. Confrontation need

not consist of an eyeball-to-eyeball direct physical con-

tact. The use of two-way closed circuit television in elic-

iting the testimony of a child witness constitutes a

confrontation. This method of testifying protects all the

interests served by the Confrontation Clause.

ARGUMENT

I.

THE SIXTH AMENDMENT REQUIRES THAT IN ALL

CRIMINAL PROSECUTIONS THE ACCUSED SHALL

ENJOY THE RIGHT TO BE CONFRONTED WITH THE

WITNESS AGAINST HIM

“In all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses against

him...” U.S. Const.Amend.VI. In prosecutions in-

volving child sexual assault a conflict arises due to the

public policy of protecting the child witness.

The Confrontation Clause advances the goal of seek-

ing truth at trial “by insuring that convictions will not be

based on the charges of unseen and unknown - and

hence unchallengeable - individuals.” Lee v. Illinois, 476

U.S. 530, 540 (1986). In cases of child sexual assault the

challenge is to seek the truth while at the same time

protecting the child from unnecessary trauma. This trau-

ma can arise from testifying in the physical presence of

the accused about extremely personal and even degrad-

ing incidents of sexual assault.

Many states have adopted procedures which allow

for the protection of the child witness.' California has

1 Alaska Stat. Sec. 12.45.046 (Supp.1988); Ariz. Rev. Stat.

Ann. Sec. 13-4251 and 13-4253 (Supp.1988); Conn. Gen. Stat.

Sec. 54-869 (West Supp.1989); Fla. Stat. Ann. Sec. 92.53 (West

Supp.1989); Ga. Code Ann. Sec. 81-1006.2 (Supp.1989); Ind.

Code Ann. Sec. 35-37-4-8(d) (Burns Supp.1989); Kan. Stat. Ann.

Sec. 22-3434 (1988); Ky. Rev. Stat. Ann. Sec. 421.350 (Baldwin

Supp.1989); Md. Cts. & Jud. Proc. Code Ann. Sec. 9-102

(Supp.1988); Mo. Ann. Stat. Secs. 491.680(2) (Vernon

Supp.1989); N.H. Rev. Stat. Ann. Sec. 517.13-a (Supp.1988); N.J.

(Continued on following page)

adopted a procedure whereby a child victim under the

age of ten may testify via two-way closed circuit televi-

sion. Cal.Pen.Code Section 1347. (Appendix A) The Cali-

fornia Procedure avoids any Confrontation Clause issue

by requiring that the alternate method of eliciting testi-

mony from the child victim consist of two-way closed

circuit television.

Il.

THE CONFRONTATION CLAUSE IS NOT IMPLI-

CATED BY A PROCEDURE BY WHICH A CHILD WIT

NESS TESTIFIES VIA TWO-WAY CLOSED CIRCUIT

TELEVISION

While the decision of the Maryland Court of Appeals

addresses many issues, Amicus chooses to examine only

a portion of that court’s analysis. The Maryland Court

erred in presuming that the child must te traumatized by

testifying in the physical presence of the accused before

adopting a procedure designed to avoid traumatizing the

child.

The Maryland Court held that before a court may

utilize a procedure involving an alternative to testimony

by the child in direct physical presence of the accused in

the courtroom it must first hold a hearing featuring pre-

cisely such testimony. Craig, 316 Md. at ___, 560 A.2d at

1127. “{I)n the face of a confrontation challenge [The

Maryland Statute] ordinarily cannot be invoked unless

(Continued from previous page)

Rev. Stat. Sec. 2A:84A-32.4 (West Supp.1989); N.Y. Crim. Proc.

Law Secs. 65.00-.30 (McKinney Supp.1989); Ohio Rev. Code

Ann. Sec. 2907.41 (Supp.1987); Utah Code Ann Sec. 77-35-15.5

(Supp.1989); Vt. R. Evid. 807; Wis. Stat. Sec. 967.04(7)(a) (Supp.

1988)

the child witness initially is questioned .. . in the defen-

dant’s presence, and is found by the trial judge who

presided at this procedure to be unable to ‘reasonably

communicate’ because of ‘serious emotional distress’ pro-

duced by the presence of the defendant.” Id. (citing Wil-

dermuth v. State, 310 Md. 496, 523-24, 530 A.2d 275, 289

(1987)).

The Maryland Court defined “in the defendant’s

presence” as requiring “face-to-face confrontation with

the defendant,” Id. The Court further described this con-

frontation as “eyeball-to-eyeball,” Id. Without such direct

physical confrontation the court ruled the Sixth Amend-

ment would necessarily be violated.

An examination of this Court’s opinion in Coy v. lowa,

487 U.S. __, 101 L.Ed.2d 857 (1988), compels the conclu-

sion that the Maryland Court construed the presence

requirement far too strictly.

The Court in Coy left for another day whether any

exceptions existed to the requirement of a face to face

meeting between an accused and an accuser. Id., at __,

101 L.Ed.2d at 867. It is clear that the court’s opinion,

viewed in conjunction with Justice O’Connor’s concur-

rence, establishes that the confrontation required by the

Sixth Amendment need not be eyeball-to-eyeball as stat-

ed by the Maryland Court.

In her concurring opinion in Coy, Justice O’Co: nor

stated, “Initially, many such procedures may raise no

substantial Confrontation Clause problem since they in-

volve testimony in the presence of the defendant.” Id., at __,

101 L.Ed.2d at 868 (O’Connor, J. concurring) (emphasis

added). Among the statutes cited by Justice O’Connor

was section 1347 of the California Penal Code (See Ap-

pendix A), which provides for testimony by two-way

closed circuit television. The conclusion is inescapable

that Justice O’Connor considered testimony via two-way

closed circuit television to be “testimony in the presence

of the defendant.” 1d.

Justice O’Connor’s analysis continued, “Moreover,

even if a particular state procedure runs afoul of the

Confrontation Clause’s general requirements, it may

come within an exception that permits its use.” /d. There-

fore, Justice O'Connor provided a two-step analysis. First

it is necessary to determine whether a defendant has been

denied a confrontation. Only if there has been no con-

frontation must the court inquire into the availability of

an exception.? The Maryland Court erred by construing

too strictly the confrontation requirement as necessarily

consisting of direct physical eyeball-to-eyeball contact.

Craig, 316 Md. at __, 560 A.2d at 1127. Confrontation via

two-way closed circuit television fully satisfies the Sixth

Amendment. It is therefore unnecessary to look for an

exception.

2 Even if this court concludes that the Confrontation

Clause was implicated in Craig, it should inquire into any

exceptions that may exist. As Justice O’Connor noted, some-

thing other than personal confrontation would be permissible

if necessary to further an important public policy, such as

preventing trauma to child witnesses. “If a court makes a case-

specific finding of necessity . . . our cases suggest that the

strictures of the confrontation clause may give way to the

compelling state interest of protecting child witnesses.” Coy,

487 US. at ___, 101 L.Ed.2d at 869-70 (O’Connor, J. concurring).

Nothing in Justice Scalia’s Opinion for the court con-

flicts with this analysis. The “face-to-face presence” re-

ferred to in the Court’s Opinion would appear to embrace

the use of two-way closed circuit television. The Court’s

language indicates that the purpose of the clause is

served where the witness testifies while looking at the

defendant. Coy, 487 U.S. at __, 101 L.Ed.2d at 866. “The

Confrontation Clause does not, of course, compel the

witness to fix his eyes upon the defendant.” Jd. So long as

the witness has the ability to do so, the Confrontation

Clause is not implicated. This is precisely why Justice

O’Connor and Justice White concurred in the Opinion. /d.

at __, 101 L.Ed.2d, at 870, (O’Connor, J. concurring).

TESTIMONY VIA TWO-WAY CLOSED CIRCUIT TELE-

VISION SERVES ALL THE INTERESTS PROTECTED

BY THE CONFRONTATION CLAUSE AND THERE-

FORE IS A SIXTH AMENDMENT CONFRONTATION

The conclusion of the Maryland Court of Appeal that

the Confrontation Clause necessitates “eyeball-to-eyeball

confrontation,” Craig, 316 Md. at __, 560 A.2d at 1127,

errs because testimony via two-way closed circuit televi-

sion serves all the interests protected by the Confronta-

tion Clause. This court set out, in California v. Green, the

interests protected by confrontation.

Confrontation: (1) insures that the witness

will give his statements under oath —- thus im-

pressing him with the seriousness of the matter

and guarding against the lie by the possibility of

a ey for perjury; (2) forces the witness to

submit to cross-examination, the “greatest legal

engine ever invented for the discovery of truth”;

10

(3) permits the jury that is to decide the defen-

dant’s fate to observe the demeanor of the wit-

ness in making his statement, thus aiding the

jury in assessing his credibility.

California v. Green, 399 U.S. 149, 158 (1970).

The use of two-way closed circuit television satisfies

each of those interests. Coy also observed that the Con-

frontation Clause furthers the interest of finding the truth

by requiring that the defendant and the witness be able to

view one another. Coy, 487 U.S. at__, 101 L.Ed.2d at 866.

The use of two-way closed circuit television also satisfies

these interests.

11

CONCLUSION

An examination of this court's decision in Coy v. lowa

in light of Justice O’Connor’s concurring opinion demon-

strates the necessity of a two-step analysis to the Con-

frontation Clause. The first step requires the court to

determine whether a confrontation has taken place. The

Maryland Court’s opinion erred in setting forth a too

strict definition of confrontation. This Court's decision in

Coy compels the conclusion that testimony via two-way

closed circuit television is confrontation.

DATED: March, 1990.

Respectfully submitted,

Epwarp R. JAGELS

District Attorney of Kern

County, California

*JONATHAN B. CONKLIN,

Deputy District Attorney

Jererey T. Even,

Deputy District Attorney

*Counsel of Record

Attorneys for Amicus Curiae

The Appellate Committee of

the California District

Attorney's Association

la

APPENDIX A

California Penal Code section 1347 reads:

(a) It is the intent of the Legislature in

enacting this section to provide the court with

discretion to employ unusual 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 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

unusual procedures.

(b) Notwithstanding any other provision

of law, the court in any criminal proceeding,

upon written notice of the prosecutor made at

least three days prior to the date of the prelimi-

nary hearing or trial date on which the testi-

mony 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

10 years of age or younger at the time of the

motion be taken by contemporaneous examina-

tion and cross-examination in another place and

out of the presence of the judge, jury, defendant,

and attorneys, and communicated to the court-

room by means of two-way closed-circuit televi-

sion, if the court makes all of the following

findings:

(1) The minor’s testimony will involve a

recitation of the facts of an alleged sexual of-

fense committed on or with the minor.

(2) The impact on the minor of one or

more of the factors enumerated in subpara-

graphs (A) to (D), inclusive, is shown by clear

2a

and convincing evidence to be so substantial as

to make the minor unavailable as a witness un-

less closed-circuit television is used.

(A) 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 pro-

ceeding or to prevent the minor from reporting

the alleged sexual offense or from assisting in

criminal prosecution.

(B) Use of a firearm or any other deadly

weapon during the commission of the crime.

(C) Infliction of great bodily injury upon

the victim during the commission of the crime.

(D) Conduct on the part of the defendant

or defense counsel during the hearing or trial

which causes the minor to be unable to continue

his or her testimony.

In making the determination required by

this section, the court shall 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 in order to obtain the minor’s testi-

mony.

(3) The equipment available for use of

two-way closed-circuit television would accu-

rately communicate the image and demeanor of

the minor to the judge, jury, defendant or defen-

dants, and attorneys.

3a

(c)\(1) The hearing on a motion brought

pursuant to this section shall be conducted out

of the presence of the jury.

(2) Notwithstanding Section 804 of the Ev-

idence Code or any other provision of law, the

court, in determining the merits of the motion,

shall not compel the minor to testify at the hear-

ing; nor shall the court deny the motion on the

ground that the minor has not testified.

(3) in determining whether the impact on

an individual child of one or more of the four

factors enumerated in paragraph (2) of subdivi-

sion (b) is so substantial that the minor is un-

available as a witness unless closed-circuit

television is used, the court may question the

minor in chambers, or at some other comfort-

able place other than the courtroom, on the re-

cord 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.

(d) When the court orders the testimony of

a minor to be taken in another place outside of

the courtroom, the court shall do all of the fol-

lowing:

(1) Make a brief statement on the record,

outside of the presence of the jury, of the rea-

sons in support of its order. While the statement

need not include traditional findings of fact, the

4a

reasons shall be set forth with sufficient specific-

ity to permit meaningful review and to demon-

strate that discretion was exercised in a careful,

reasonable, and equitable manner.

(2) Instruct the members of the jury that

they are to draw no inferences from the use of

two-way closed-circuit television as a means of

facilitating the testimony of the minor.

(3) Instruct respective counsel, outside of

the presence of the jury, that they are to make no

comment during the course of the trial on the

use of two-way closed-circuit television pro-

cedures.

(4) Instruct the support witness, outside of

the presence of the jury, that he or she is not to

coach, cue, or in any way influence or attempt to

influence the testimony of the minor.

(5) Order that a complete record of the

examination of the minor, including the images

and voices of all persons who in any way partic-

ipate in the examination, be made and pre-

served on video tape in addition to being

stenographically recorded. The video tape shail

be transmitted to the clerk of the court in which

the action is pending and shall be made avail-

able for viewing to the prosecuting attorney, the

defendant, and his or her attorney during ordi-

nary business hours. The video tape shall be

destroyed after five years have elapsed from the

date of entry of judgment. If an appeal is filed,

the tape shall not be destroyed until a final

judgment on appeal has been ordered. Any vid-

eo tape which is taken pursuant to this section is

subject to a protective order of the court for the

purpose of protecting the privacy of the witness.

This subdivision does not affect the provisions

of subdivision (b) of Section 868.7.

5a

(e) When the court orders the testimony of

a minor to be taken in another place outside the

courtroom, only the minor, a support person

designated pursuant to Section 868.5, a non-

uniformed bailiff, and, after consultation with

the prosecution and the defense, a representa-

tive appointed by the court, shall be physically

present for the testimony. A videotape shall re-

cord the image of the minor and his or her

testimony, and a separate videotape shall record

the image of the support person.

(f) When the court orders the testimony of

a minor to be taken in another place outside the

courtroom, the minor shall be brought into the

judge’s chambers prior to the taking of his or

her testimony to meet for a reasonable period of

time with the judge, the prosecutor, and defense

counsel. A support person for the minor shall

also be present. This meeting shall be for the

purpose of explaining the court process to the

child a~« to allow the attorneys an opportunity

to estab] -h rapport with the child to facilitate

later questioning by closed-circuit television. No

participant shall discuss the defendant or any of

the facts of the case with the minor during this

meeting.

(g) When the court orders the testimony of

minor to be taken in another place outside the

courtroom, nothing in this section shall prohibit

the court from ordering the minor to be brought

into the courtroom for a limited purpose includ-

ing the identification of the defendant or defen-

dants as the court deems necessary.

(h) The examination shall be under oath,

and the defendant’s image shall be transmitted

live to the witness via two-way contemporane-

ous closed-circuit television.

6a

(i) Nothing in this section shall affect the

disqualification of witnesses pursuant to Section

701 of the Evidence Code.

(j) The Judicial Council shall submit a re-

port to the Legislature on or before January 1,

1988, summarizing the experience of courts

which have used contemporaneous closed-cir-

cuit television pursuant to this section.

(k) The cost of examination by two-way

contemporaneous closed-circuit television or-

dered pursuant to this section shall be borne by

the court out of its existing budget. (Added by

Stats.1985, c.43, section 1. Amended by

Stats.1986, c.774, section 2; Stats.1987, c. 828,

section 88.)