The Child Victim Witness Balancing of Defendant Victim Rights in the Emotional Caldron of a Criminal Trial
| Date | 01 January 1993 |
| Publication year | 1993 |
| Pages | 38 |
| Citation | Vol. 62 No. 01 Pg. 38 |
62 J. Kan. Bar Assn. January, 38 (1993). THE CHILD VICTIM WITNESS BALANCING OF DEFENDANT VICTIM RIGHTS IN THE EMOTIONAL CALDRON OF A CRIMINAL TRIAL
January, 1993
Copyright (c) 1993 by the Kansas Bar Association, Topeka, Kansas; Thomas D. Haney
I. ISSUES AND CONCERNS
Few things incite moral outrage more than seeing a child as the victim of sexual abuse. This outrage intensifies when the child exits the criminal justice system traumatized not only by the defendant's shocking act, but also by the legal system itself. Opinions of those involved in issues of children as victims and witnesses are strong. From one camp comes allegations of the "Salem witch trial revisited," while the other camp refers to those who refuse to accept the statements of children at face value as child-abuser sympathizers.
Recent judicial and legislative efforts protecting both the child victim's welfare and the constitutional rights of the accused include novel and creative procedural guidelines attempting to balance the rights of the accused and the rights of the child accuser. Some legislative schemes have passed constitutional muster, some have failed, and some remain to be tested. This article is intended to provide the practitioner with some guidelines to assist in recognizing issues and taking steps to practice preventative law to avoid that the facts in any given situation are obscured by procedural and constitutional infirmities.
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II. THE KANSAS APPROACH
The Kansas Legislature consistently has treated a child witness, or a statement by a child differently from other witnesses and statements. [FN1] This apparently reflects the state's interest in protecting and sheltering the child from further emotional harm resulting from fully confronting the defendant in our accusatorial system of justice. [FN2]
Through K.S.A. 1991 Supp. 22-3434, the Legislature has enacted procedural guidelines aimed at protecting the child's sensitivity while still guaranteeing the rights of the accused. It is the opinion of this writer that, should Kansas prosecutors and defense counsel strictly follow the statutory dictates of K.S.A. 1991 Supp. 22-3434, any resulting statement by a child would in all likelihood be infirm and constitutionally inadmissable.
K.S.A. 1991 Supp. 22-3434 provides the testimony of a child victim less than 13 years of age may be taken in an extra-judicial setting. Upon motion of an attorney representing any party to a criminal proceeding involving a victim under 13 years of age, the court may order the testimony of the child be taken:
1. In a room other than the courtroom and be televised by closed-circuit equipment in the courtroom to be viewed by the court and the finder of fact in the proceeding; or 2. Outside the courtroom and be recorded for showing in the courtroom before the court and the finder of fact in the proceeding, if: (A) The recording is both visual and aural and is recorded on film or videotape or by other electronic means; (B) the recording equipment is capable of making an accurate recording, the operator of the equipment is competent and the recording is accurate and has not been altered; (C) every voice on the recording is identified; and (D) each party to the proceeding is afforded an opportunity to view the recording before it is shown in the courtroom, and a copy of a written transcript is provided to the parties. [FN3] K.S.A. 1991 Supp. 22-3434 provides those present may include only the child victim, the video operators, the defendant's attorneys, the state's attorney, the child victim's independent counsel, if any, and any persons whose presence would contribute to the child's welfare and well being. The statute, as amended by the 1990 Legislature, further states:
The state must establish by clear and convincing evidence that to require the child who is the alleged victim to testify in open court would so traumatize the child as to prevent the child from reasonably communicating to the jury or render the child unavailable to testify. The court shall make an individualized finding before the state is permitted to proceed under this section. [FN4] A clear thread of legislative intent to treat child victims differently in the justice system runs throughout the Kansas statutes. The Kansas Code for Care of Children Adjudicatory Procedure applies the rules of evidence of the Code of Civil Procedure "except that no evidence relating to the condition of a child shall be excluded solely on the ground that the matter is or may be the subject of a physician-patient privilege, psychologist-client privilege or social worker-client privilege." [FN5]
The Kansas Code for Care of Children, Section 38, Article 15 also includes a rather unique provision allowing a child's out-of-court statement to be admissable in evidence under certain conditions. [FN6] In proceedings under the code in which:
A child less than 13 years of age is alleged to have been physically, mentally or emotionally abused, or neglected, or sexually abused, a recording of an oral statement of the child, or of any witness less than 13 years of age, made before the proceeding began is admissable in evidence, if; (a) The court determines that the time, content and circumstances of the statement provides sufficient indicia of reliability; (b) no attorney for any party is present when the statement is made; (c) recording is both visual and aural and is recorded on a film or videotape, or by other electronic means; (d) the recording equipment is capable of making an accurate recording, the operator of the equipment is competent and the recording is accurate and has not been altered; (e) a statement is not made in response to questioning calculated to lead the child to make a particular statement or is clearly shown to be the child's statement and not made solely as a result of a leading or suggested question; (f) every voice on the recording is identified; (g) the person conducting the interview of the child in the recording is present at the proceeding and is available to testify or be cross-examined by any party; and (h) each party to the proceeding is afforded an opportunity to review the recording before it is offered into evidence, and a copy of a written transcript is provided to the parties.
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The statute is unique in that it clearly contemplates such a statement may not be taken by the attorneys representing any party and, additionally, the judge is not required to make any individualized finding that the child, or witness, would be traumatized by testifying in court.
K.S.A. 38-1558 provides a separate procedure to take the actual testimony of a child "less than 13 years of age. . . alleged to have been physically, mentally or emotionally...
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