The Right of a Defendant to Confront a Child Witness in California Sex Offense Cases

The Sixth Amendment to the United States Constitution guarantees all defendants facing criminal prosecution the right to confront their accusers. Confrontation affords a defendant the opportunity to cross-examine the witness and potentially reveal any bias or other weakness in the witness’ testimony. Typically, courts require that this confrontation be face-to-face, meaning that the witness must testify at the defendant’s trial. Through live testimony, a jury is best able to assess a witness’ demeanor and credibility, assisting the jury in determining whether the witness’ testimony is credible.

Face-to-face confrontation requires a witness to face the subject of their allegations. Naturally, this will make some witnesses nervous. Indeed, a witness’ nervousness is a key factor in assessing their credibility. However, California lawmakers have developed several exceptions to the general rule requiring face-to-face confrontation when the allegations involve specific California crimes allegedly committed against children.

Under California Penal Code section 1347, a court can permit the minor to testify via two-way closed-circuit television in certain limited situations when the defendant is charged with a “violent felony offense.” The statute provides some examples of what constitutes a violent felony offense, including:

  • rape,
  • sodomy,
  • oral copulation,
  • lewd or lascivious acts,
  • certain child abuse offenses,
  • robbery,
  • carjacking,
  • kidnapping, and
  • arson.

In addition, the prosecution must be able to establish by clear and convincing evidence that the impact of requiring the minor to testify would “be so substantial as to make the minor unavailable.” Courts consider the following when assessing the impact that testifying would have on the minor:

  • the potential emotional distress caused by forcing the minor to testify in the defendant’s presence;
  • whether the defendant was alleged to have used a deadly weapon;
  • any alleged threats made by the defendant to the minor or their family;
  • the extent of the physical injuries sustained by the child;
  • whether the defendant or his attorney behaved in a way that caused the minor to be unable to testify.

In making this determination, courts will consider a minor’s age and disability, if any, but cannot rely solely on a minor’s reluctance or even outright refusal to testify.

If the court determines that a minor should be permitted to testify via two-way closed-circuit television, the court must then determine that the equipment available for use would “accurately communicate the image and demeanor of the minor to the judge, jury, defendant or defendants, and attorneys.”

Have You Been Charged with a California Sex Offense?

If you have recently been charged with a California sex crime, contact the Law Offices of John W. Noonan. Attorney Noonan is a veteran California criminal defense attorney with over 55 years of experience helping those who are facing serious California felony crimes. Even relatively minor sex crimes can carry the potential requirement of lifelong registration as a sex offender, as well as many other life-altering consequences. To learn more about how Attorney Noonan can help you defend against the charges you are facing, call 925-479-0033 to schedule a free consultation today.

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Hearsay in California Criminal Cases, Law Offices of John W. Noonan, January 10, 2019.

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