Trial Hb 804

• Citation: Vol. 31 No. 1
• Publication year: 2014

Trial HB 804

Georgia State University Law Review

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CRIMINAL PROCEDURE

Trial: Amend Article 3 of Chapter 8 of Title 17 of the Official Code of Georgia Annotated, Relating to Conduct of Trial Proceedings, so as to Repeal Provisions Relating to the Testimony of a Child Ten Years Old or Younger by Closed Circuit Television and Persons Entitled to be Present; Provide for the Testimony of Individuals Under 18 years of Age Outside the Physical Presence of an Accused in Criminal Proceedings Under Certain Circumstances; Provide for Related Matters; Repeal Conflicting Laws; and for Other Purposes

Code Sections:	O.C.G.A. § 17-8-55 (new)
Bill Number:	HB 804
Act Number:	512
Georgia Laws:	2014 Ga. Laws 205
Summary:	The Act allows a court to order a child witness or victim of certain offenses under the age of seventeen to testify outside the physical presence of the accused provided the court finds the child is likely to suffer serious psychological or emotional distress or trauma that impairs the child's ability to communicate. The Act also lists considerations for the judge to take into account when making this determination. It further provides what shall be included in the court's order, as well as the method of such testimony.
Effective Date:	July 1, 2014

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History

In 1985, the General Assembly enacted Official Code of Georgia Annotated section 17-8-55.¹ The Act allowed the testimony of a child victim to certain sexual offenses to be televised in the courtroom, rather than the child victim testifying in open court in the presence of the accused.² First, the victim had to be fourteen years of age or younger.³ Second, the protections of Code section 17-8-55 extended only to the offenses of "cruelty to children, rape, sodomy, aggravated sodomy, molestation or aggravated molestation."⁴ Third, the court had to find that there was a "substantial likelihood" that the child victim would "suffer severe emotional or mental distress" if he had to testify openly in the courtroom.⁵ Lastly, the court must have found that the defendant's rights would "not be unduly prejudiced" by allowing the child victim to testify via broadcast testimony.⁶ The Act also provided that a limited number of parties were allowed to be present when the child testified.⁷ By enacting this provision, the General Assembly sought to protect Georgia's children by lessening the distress surrounding testifying against the accused.⁸

In 1988, a horrific child molestation case, involving Georgia residents, brought the protection of child witnesses testifying against their accusers to the forefront of legislators' attention.⁹ In 1990, the

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United States Supreme Court noted that twenty-four states allow a victim of child abuse to testify via one-way closed circuit television, including Georgia.¹⁰ A Confrontation Clause challenge to one of these statutes made it to the Court in the case of Maryland v. Craig, in which the Court upheld the use of one-way closed circuit television when such procedures are "necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the defendant."¹¹

In 1991, guided by the Maryland statute that survived constitutional challenge in Craig, the General Assembly amended Code section 17-8-55.¹² The Act allowed the child victim to testify outside the courtroom via a two-way closed circuit television.¹³ It changed, however, the age the child had to be to seek its protections to ten years of age and younger.¹⁴ In addition to the originally covered offenses, the Act added sexual assault to the list.¹⁵ The court must have found the child's testimony in the courtroom would "result in the child's suffering serious emotional distress such that the child cannot reasonably communicate."¹⁶ The Act also changed who could be present with the child, listing the presence of only the prosecutor, the defendant's attorney, the judge, the operators of the equipment, and any person, in the court's opinion, who contributed to the child's wellbeing.¹⁷

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The narrow purview of this Code section, however, left some child victims outside of its protections.¹⁸ For example, an eleven-year-old child abuse victim, who fell just outside of the statute's protections for those ten years and younger, had to testify inside the courtroom in the presence of the defendant, and as a result, he suffered severe distress.¹⁹ Keeping Georgia's children victims and witnesses in mind and focusing on similar laws in other states, Representative Edward Lindsey (R-54th) with the help of District Attorney Paul Howard introduced House Bill (HB) 804 during the 2014 session of the General Assembly.²⁰ The purpose of HB 804 was to protect Georgia's children from trauma from testifying in front of the accused²¹ , and to bring Georgia in line with the majority of other states.²²

Bill Tracking of HB 804

Consideration and Passage by the House

Representatives Edward Lindsey (R-54th), Buzz Brockway (R-102nd), LaDawn Jones (D-62nd), Matt Ramsey (R-72nd), and B.J. Pak (R-108th) sponsored HB 804.²³ The House read the bill for the

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first time on January 23, 2014.²⁴ Speaker of the House David Ralston (R-7th) assigned the bill to the House Judiciary Non-Civil Committee.²⁵ The Committee offered several changes to the bill and favorably reported a Committee substitute on February 18, 2014.²⁶

The substitute contained several substantive changes. First, it added that the bill applies to proceedings when a child is a witness to or an alleged victim of simple assault, simple battery, battery, stalking, and violation of family violence order to the crimes.²⁷ Representative Lindsey offered the additional crimes, upon the recommendation of Cherokee County Solicitor General Jessica Moss, because minors are often forced to testify in those situations.²⁸

Second, the substitute added another layer to the standard by which a judge determines whether to allow a child to testify remotely.²⁹ It required the court to find not only that a child is likely to suffer serious psychological or emotional distress, but also that such distress impairs the child's ability to communicate.³⁰ Representative Lindsey offered the change in response to the committee's concern that, in the bill's initial version, the child's psychological or emotional distress was not tied to the child's ability to testify.³¹ He reasoned that, in the abundance of caution given other states' rulings on similar statutes, it is appropriate to "tighten the language."³²

Third, the substitute revised the bill's language regarding how a court establishes that a child is likely to suffer serious psychological or emotional distress as a result of testifying.³³ The bill's original

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language provided that the presence of any one of several enumerated circumstances "establish[es] that the child is likely to suffer serious psychological or emotional distress as a result of testifying in the presence of the accused."³⁴ In one Committee meeting, Sandra Michaels of the Association of Co-defense Lawyers expressed concern that the bill's original language took discretion from the court.³⁵ More specifically, Ms. Michaels believed that the bill allowed the mere presence of one of the factors to establish the child's likelihood to suffer serious psychological or emotional distress.³⁶ Acknowledging Ms. Michael's concerns, the substitute's language provided that the court may consider any number of factors in determining the establishment of such distress, eliminating the language that automatically established distress based on a factor's mere presence.³⁷

Fourth, where the bill required a judge's order allowing the use of remote testimony to include a list of persons allowed to be in the presence of the child during such testimony, the substitute eliminated a non-exclusive list of those allowable persons.³⁸ The substitute also specifically prohibits pro se defendants from being present during such testimony.³⁹ Representative Lindsey offered these changes, again, to merely "tighten the language."⁴⁰ Lastly, where two of the factors that a court may consider in determining whether to allow remote testimony used "psychological harm" language, the substitute replaced that language with "psychological or emotional distress" in favor of consistency.⁴¹ The House read the Committee substitute as amended on February 25, 2014 before passing it that day by a unanimous 163 to 0 vote.⁴²

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Consideration and Passage by the Senate

Senator John Crosby (R-13th) sponsored HB 804 in the Senate.⁴³ The Senate read the bill for the first time on February 26, 2014.⁴⁴ Lieutenant Governor Casey Cagle (R) assigned the bill to the Senate Judiciary Non-Civil Committee.⁴⁵ The Committee offered several changes to the bill, and favorably reported a committee substitute on March 13, 2014.⁴⁶

The Senate Committee substitute, like the House Committee substitute, also contained several substantive changes. First, the substitute provides that a "parent, legal guardian, or custodian of a child" may move the court to hold an evidentiary hearing to determine whether a child shall testify outside the presence of the accused, replacing the bill's "proponent of the child" language.⁴⁷ Senator Curt Thompson (D-5th) offered the change to the above legally defined terms after expressing his concern that a proponent of a child "could literally be anybody."⁴⁸ Representative Lindsey also recommended the change, considering it an improvement.⁴⁹

Second, the substitute changed the definition of child from individuals under eighteen to individuals under seventeen based on the fact that the law in only a very small minority of states goes as high as eighteen.⁵⁰ Third, it replaced "distress" with "distress or trauma," describing the effect on a child witness or victim that warrants remote testimony.⁵¹ Senator Thompson originally offered to replace distress with trauma...