# Amicus Curiae Brief — Maryland v. Craig

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0676%3A18

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 493 U.S. 1041

## Text

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.

+

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.

+

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.)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0676%3A18. Public record. Not legal advice.