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Legal Aspects of CCTV and Recording Technology by MikeJenny


									 Courtroom Strategies
 and Challenges

Western Regional Training Program
ABA Center on Children and the Law
         March 31, 2009
Modifying Traditional
Courtroom Procedures
 Courtroom closure
 Use of support persons to accompany child
  during in-court testimony
 Limit the length of in-court testimony
 Require developmentally appropriate
 Modify courtroom logistics
CCTV and Recording Technology
 Use of videotape to record pre-trial interviews
  or statements, full scale depositions or other
  sworn testimony
 Use of CCTV
Advantages of CCTV
 Child can testify in more relaxed environment
  than courtroom
 Can testify outside physical presence of jury,
  spectators and defendant
 Disadvantages of recording testimony before
  trial do not apply (i.e., defense preparation,
  newly-discovered evidence)
 Enables testimony of child who may be
  unable to testify with defendant present
Disadvantages of CCTV
 Televised image not as effective (“watching
 If defendant’s presence required in room,
  may be more intimidating
Overcoming Challenges to CCTV
   Not necessary procedure in this case
   Prejudicial to defendant
   In violation of confrontation clause
   File motions in limine to craft conduct of
    defense attorney
       Not use inappropriate questions
       Use age/developmentally appropriate
       Language/questions that are not designed to
        “trick” the child
Preliminary Hearing
 Motion to remove child witness from courtroom and allow
  testimony re: CCTV
 Expert or other testimony that child witness would undergo
  further emotional trauma if compelled to testify in courtroom in
  presence of defendant
 Williams v. U.S., 859 A.2d 130 (D.C. 2004)
    Taking 5 y.o. victim’s testimony by CCTV after she had
      already begun testimony in court not error
    Unsuccessful attempt was added if not compelling
      assurance of necessity or procedure to prevent trauma
    Trial court at least attempted to afford usual trial
 State v. Marcantel, 756 So.2d 366 (La. Ct. App. 3d Cir. 1999)
    Defendant waived constitutional right to confront victim by
      stipulating at show-cause hearing that child could testify via
Minimal standards for CCTV
 As minimally intrusive as possible
 Defendant able to privately communicate with his
 Camera is focused in such a way to provide jury with
  clear image of the witness, examiner, and any other
  person present within examination room
      U.S. v. Etimani, 328 F.3d 493 (9th Cir. 2003)
         Placement of monitor behind and to left of victim
          instead of directly in line of sight acceptable when
          monitor was large, positioned so that victim could see
          it and its presence was called to her attention, and jury
          could se whether she looked at monitor during
CCTV Minimal Standards
 Must be capable to providing opportunity to observe
  witness’ demeanor by providing clear and accurate
  sounds and images to defendant, judge, jury and
 Manner in which transmitted instilled in witness sense
  of seriousness of testimony
      Not required to see and hear defendant
      State v. Manley, N.W.2d 275 (Minn. 2003)
         Court may order that CCTV testimony be taken so that

          defendant can see and hear child in person and
          communicate with attorney but child cannot see or
          hear defendant
Advantages of Recording Interviews
 Prosecutors can introduce recording in
  addition to in-court testimony
     Jurors can see child talk about abuse in non-
      threatening surroundings
     May record spontaneity, emotion or detail
      missing in later descriptions
 May be used at grand jury instead of child’s
Advantages of Recording Interviews,
 May be used to support preliminary showings
  before trial (i.e., need for special procedures)
 Can refresh recollection before trial
 May be used to impeach victim if she recants
  on witness stand
 May be used, if admissible, to corroborate
  child’s testimony
Disadvantages of
Recording Interviews
 Other out-of-court considerations will receive
  less consideration because not recorded
 Defense counsel can use ineffective interview
  to argue improper techniques
 Recorded denial or recantation can be
  replayed for jury, damaging the prosecution’s
Advantages of Recorded Testimony
 Pre-trial deposition could be used to refresh child
    victim’s recollection
   Could be used as evidence of prior consistent
   May be used to impeach victim if she recants on
    witness stand
   As substantive evidence if victim recants at trial
   May be used if child unable to testify at trial with
    defendant present
   Can make the victim real to the jury (facial
    expressions, gestures, pauses not conveyed by
    written transcript)
Disadvantages of Recorded Testimony
 Lacks immediacy and persuasive impact of
  live in-court testimony by victim (“watching
 Enables defense to prepare its case with prior
  knowledge of crucial testimony
 If additional evidence comes to light,
  defendant may have right to cross-examine
  child victim again Some states allow
  presence of defendant; may be even closer
  than in court
Policies on Whether to Record
 Jurisdictions vary on whether to videotape
  interviews; a few require it
 If you are going to record, best to have
  professional interview protocol
 Recording not panacea for bad interview
 Example: multi-victim cases
     Control point
     Each individual interviewer cannot share
Overcoming Challenges to Use of
Recording Technology
 Challenges to interviewing protocols
    Are they consistently followed?
    Were they followed in this case?
 Common current attack on state’s case for only
  recording this witness, trying to raise issue that even
  state has concerns re: veracity of witness
      Response: provides clear evidence that did not use
       leading/suggestive questions
 Pre-trial motion to stipulate recording coming in pro-
  forma: no arguments can be made in front of jury
 Must look to hearsay rules to determine when
  recorded statements can be introduced
 Know what you are dealing with
Necessity for Recorded Testimony
 Young v. Macy, 21 P.2d 44 (Okla. 2001)
       Before ordering CCTV or recorded testimony, court must find
            Use of special procedure is necessary to protect welfare of
             particular child
            Child would be traumatized not by courtroom but by presence
             of defendant
            Emotional distress more than de minimus
 State v. Alterisi, 702 A.2d 651 (Conn. 1997)
    That 5 and 3 y.o. victims had been threatened with violent
     harm by defendant and were “deathly afraid” of him was
     clear and convincing evidence of need to videotape
     testimony outside of defendant’s presence
 State v. Correll, 973 P.2d 197 (Kan. 1998)
    Trial court must make individualized finding that in-court,
     face-to-face testimony of child victim would so traumatize
     child as to render child unavailable or would prevent child
     from reasonably communicating
Defense Challenges generally
 Any good defense counsel will find something
   Be prepared to respond to each possibility
 Defense motion to suppress
 Memory
   Attacks on ability to remember, relate and tell
 Suggestibility
   Result of leading questions
   Who prepped the child?
 Process challenges
Defense Challenges on Process
 Certification of equipment
 Ensure equipment is functioning before trial
 Date/time stamp
 When was the interview stopped?
 When was it interrupted?
 When did it resume?
 Chain of custody: “best evidence” of interview
 Appropriate training of evaluator/interviewer
 Sponsoring the interview: have the person available
  to be cross-examined
 Once a child is attacked as fabricating
     Bolster testimony through
          Character witnesses
          Teachers
          “always reliable but for this trauma”
          Prior consistent statements
Challenges based on Hearsay
 Recorded interviews and recorded testimony
  are hearsay
 Testimonial statements: Crawford v.
 Child must be made available for cross-
  examination at some point
 Out-of court assertions offered to prove the
  truth of the assertions
 Any other statements are not hearsay
 If child unable to testify, may be only way to
  establish corpus delicti
 Hearsay statements give more complete
  picture of the alleged abuse, as well as
  process and context of disclosure
 Many judges and attorneys do not
  understand hearsay well, so be prepared
 Not every out-of-court statement is hearsay
 If not intended as assertion, then not hearsay
 Can be offered for purpose other than truth of
  their content
Examples of Non-Hearsay
 Non-assertive conduct or verbal acts
 Prompt complaint/outcry
 Prior consistent statements
 Prior inconsistent statements
 Statement of identification
 State of mind of declarant
Non-assertive conduct or verbal acts
 Child’s sexual play with dolls observed by
  adult prior to questioning
 Statements while sleeping
 Crying at mention of defendant’s name
Prompt complaint
 Permits first person the child told about the
  sexual abuse to testify that he/she was told
  and why
 Offered to corroborate victim’s testimony
 Some states allow what was told, others don’t
 No absolute rule on time: up to 18mos upheld
 Helps explain how the case originated
 Helps explain chain of events
Prior Consistent Statements
 Federal Rules of Evidence
      Express or implicit charge of recent fabrication
       or improper influence allows admission of prior
       consistent statements as substantive evidence
 Pre-trial statements made to friends,
  caretakers, CPS workers, police, therapists,
 Admissible to rehabilitate credibility following
Prior Consistent Statements cont’d
 Be alert to any implication of lying or fabrication,
    especially in opening argument
   Details of statement admissible if consistent with trial
   Perfect consistency not required
   Repeated use may be limited so as not to bolster the
    testimony improperly
   Statement must pre-date events alleged to have
    caused fabrication
   If admitted for rehabilitation, may get limiting
    instruction to jury that the statement is not
    substantive evidence
Prior Consistent Statements cont’d
 Examples
    The therapist showed you how to play with the dolls,
     didn’t she?
    The police officer gave you candy after you talked to
     him, isn’t that right?
    Was your mommy happy when you told her what
 Be prepared
    Use details
    Provide origin and circumstances of the statement
    Is the statement recorded?
Prior Consistent Statements
 Most important when the victim recants
 If made under oath (i.e., trial, deposition,
  other sworn testimony) are NOT hearsay
  under Fed. Rules Evid. and are admitted as
  substantive evidence
      Be aware of civil proceedings
 Some states designate these statements as
  hearsay but admit them as an exception
 Know your state rules of evidence
Other non-hearsay
 Statement of identification
     Statement that identifies defendant not
      hearsay if child testifies at trial and is subject
      to cross-examination
 State of mind of declarant
     Circumstantial evidence of state of mind
          Statement during nightmare
“Firmly rooted” exceptions to Hearsay
 Considered inherently reliable
 Requirement of availability for some, not for
     Spontaneous declaration
     Medical treatment or diagnosis
 Made in context providing substantial
  guarantees of trustworthiness
 Even incompetency ruling should not bar use
  of these statements
Examples of “firmly rooted”
 Excited utterances
    Spontaneous declaration
    Fed. R. Evid. 803(2)
    Criteria
       Event or condition that startles or excites the child

       Statement must be made while still under the stress of

         that excitement
       Statement must relate to the startling event

    Critical factor is lack of opportunity to fabricate

 Statements made for purposes of medical diagnosis
  or treatment
Statutory Child Hearsay Exceptions
 State statutes
 Fed. R. Evid.
      “residual exceptions” allowing statements that
       have “equivalent circumstantial guarantees of
 Statutes frequently require that child
  declarant either testify at trial or be found
  unavailable before nontraditional hearsay
  evidence may be introduced
Indicia of Reliability
 Statements were spontaneous
 Legal competency of child victim (incompetence does
    not make statements per se unreliable)
   No motive to fabricate
   Not products of extensive interrogation with leading
   Made immediately after incident
   Unique and plausible and not within experience of
    young victim
   Used age-appropriate terminology
   Victim did not agree with everything questioner said
   Crawford: only indicia of reliability for testimonial
    statements is cross-examination
Child’s Unavailability
 Traditionally accepted reasons
     Refusal to testify
     Lack of memory
     Death
     Physical illness
     Incapacity
     Mental disability
 Reluctance to testify may not be enough
Managing Impressions to Jury
 Always be mindful of impression on jury
 Craft closing argument
     How will the recording or CCTV fit into case
     How will it play to the jury
     “Would have loved to have the child here to
      testify, but for the defendant’s actions”
 Try to use statements closest to time of
Importance of Vertical Prosecution
 What is vertical prosecution?
 Why is it important?
   Enhances child’s trust in the process
   Decreases child’s confusion
   Ensures prosecutor’s fullest knowledge
   Increases prosecutor's effectiveness
   Reduces number of interviewers
 What if you cannot use it?
   Find some other way to ensure continuity for
    the child
Contact Information
Eva J. Klain
ABA Center on Children and the Law
740 15th Street, NW
Washington, DC 20005
(202) 662-1681

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