A child witness who is not a victim, but who will be traumatized by a face-to-face confrontation, may testify remotely without violating a defendant’s confrontation rights. Defendant was tried for the torture and beating of several children, one of whom died. He challenged the trial court’s order allowing a child witness to testify remotely, claiming the procedure violated his confrontation right. Held: Affirmed. In Maryland v. Craig (1990) 497 U.S. 836, the court held that under certain circumstances a child abuse victim could testify remotely without violating a defendant’s right to confront adverse witnesses. Here, the trial court determined the child witness would be traumatized by having to face defendant. The state has important public policy interests in protecting child witnesses who are not crime victims from the trauma of testifying in court in front of a defendant: 1) the State’s compelling interest in protecting the welfare of children applies to all child witnesses, not just victims; 2) there is no basis for distinguishing between child victim and child non-victim witnesses with respect to protecting children from trauma; and 3) “viewing the State’s interest in protecting non-victim child witnesses as less important is itself constitutionally suspect.”
The trial court did not lack authority under state law to allow the child witness to testify remotely. Penal Code section 1347, subdivision (b)(1) provides the trial court discretion to allow a child victim to testify remotely. However, “necessity-based remote testimony by a non-victim child witness” is consistent with the Legislature’s intent to protect the rights of child witnesses, while also protecting the defendant’s rights. Hochheiser v. Superior Court (1984) 161 Cal.App.3d 777, which held a trial court lacked authority to allow a child abuse victim to testify remotely was decided before section 1347 was enacted and prior to cases which allow remote testimony under certain circumstances (i.e., Coy v. Iowa (1988) 487 U.S. 1012; Maryland v. Craig, supra, 497 U.S. 836.) The trial court possessed inherent authority to allow the non-victim child witness to testify remotely after finding the procedure necessary.