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Child Witness Testimony in Court: Protocol for Using Closed-Circuit Equipment

Prepared by
the Virginia Department of Criminal Justice Services and the Virginia Department of State Police

September 1995: Revised July 1999: Second Revision 2002

Inquiries should be directed to:
Virginia Department of Criminal Justice Services
1100 Bank Street, Richmond, VA 23219
804.786.4000

Introduction

Virginia, among a number of other states, has taken steps in recent years to reduce the trauma experienced by child victims when they must testify in court about what happened to them. One such step is a 1988 amendment to the Code of Virginia that allows child victims in criminal proceedings to testify from a room outside the courtroom via two-way closed-circuit television.

Section §18.2-67.9 of the Code permits this in cases involving certain criminal offenses, under certain conditions, when a victim is 14 years of age or younger at the time of the offense and 16 years or younger or the time of testimony. Revisions to the Code in 1999 include a child witness who is 14 years or younger at the time of the testimony. Additionally, in any civil proceeding involving alleged abuse or neglect of a child, the child’s testimony may be taken via closed-circuit television (§§ 63.2-1521 ; 16.1.252 (D) ) if the child victim is 14 or under at the time of the alleged offense and 16 years or younger or the time of testimony, or a witness who is 14 and under at the time of testimony.

Recognizing that few courts have access to the technology and expertise needed to make use of this statute when appropriate cases arise, the Department of Criminal Justice Services and the Department of State Police have purchased closed-circuit television equipment that is available at no cost to local courts upon request, along with trained technicians to set up the equipment and operate it. This technology allows a child’s testimony to be transmitted “live” to the courtroom where it can be seen and heard by the judge, jury, defendant, and others as it is given. At the same time, the proceedings in the courtroom are to be transmitted to the room where the child is, in order that it can be seen and heard by the child and the attorneys.

This technology and technical assistance has been available to Virginia courts since 1994 and is provided by the Virginia State Police Technical Unit. From 1994 through April of 2008 there have been approximately 597 requests for the use of closed-circuit technology involving approximately 615 children. These children range in age from 12 months to 14 years old, with the majority being female. These cases involved both felony child physical abuse and felony child sexual abuse. The types of court hearings for which closed-circuit was requested included Preliminary Hearings, Bench Trials, Jury Trials, and Civil Child Protection Hearings. Contributions of the Virginia State Police continue to make this a successful program. For each case, Special Agents averaged 15 hours of professional time with approximately 278 miles of travel per case.

Closed-circuit testimony of a child witness is not intended to be used in all child abuse cases and, in fact, is used in a very small number of cases. It is a tool to use only when a child is not available to testify by any other means. This technology exists to aid in the search for truth and to serve the interests of justice. The Department of Criminal Justice Services and the Virginia State Police are committed to providing this technology to localities to serve these purposes.

Preparation for Closed-Circuit Two-Way Testimony

Preparation for a closed-circuit two-way testimony of a child, like preparation of any case, is crucial for successful utilization of the procedure. The purpose of this document is to provide information on the procedural preparation, technical preparation, and witness preparation necessary for a locality to use closed-circuit two-way testimony for child witnesses. The format addresses the roles of prosecutors, Judges, court clerks, and the Virginia State Police.

Statutory Authority

Section §18.2-67.9 of the Code of Virginia requires the commonwealth’s attorney or defendant’s attorney to apply for an order from the court that the child’s testimony be taken in a room outside the courtroom and be televised by two-way closed-circuit television. The party seeking such an order shall apply for the order at least seven (7) days before the trial date or before such other preliminary proceeding to which the order is to apply. In civil preliminary removal orders, §63.2-1521, and §16.1.252 (D), the request for use of closed-circuit testimony must be filed forty-eight (48) hours before the hearing. In the civil proceeding, the request is made by the child’s attorney, the guardian ad litem, or the attorney for the local Department of Social Services. Changes to the code effective July 1999, altered the age requirements and included child witnesses. A child victim must be 14 years or younger at the time of the alleged offense and 16 years or younger or the time of testimony. A child witness must be 14 years or younger at the time of testimony.

Procedural Preparation

After determining that closed-circuit testimony will be requested, it is important to notify the Virginia State Police as soon as possible. Notification should be made in writing as soon as the motion is filed with the court and court hearing dates are known. For planning purposes, the State Police would prefer to put tentative dates on the calendar that can be easily cancelled rather than have short notice of a court date and not be able to respond to the request.

Equally important is timely cancellation of a request for equipment and technical assistance. If a scheduled court hearing is changed due to postponement, change of plea, or denial of the motion to use equipment, it is important to notify the State Police as soon as possible. Adequate notice of cancellation is important because of the travel and installation involved with each case. Experience has shown that each case requiring equipment installation involves 15 hours which includes travel, two hours to set up the equipment, two hours to break down the equipment and actual court testimony time.

Experience has shown that while the motion to use closed-circuit testimony is filed in a timely manner, the motion may not be heard or ruled on by the judge until the day of the court hearing for which it is requested. This can create a scheduling problem for the State Police, especially if the equipment is set up and use is not approved. Due to staff and installation time involved, it is necessary to have the decision on the motion hearing before the State Police install the closed-circuit equipment.

Motion Hearing

The motion that applies to requesting closed-circuit testimony should identify the closed-circuit statute and a general recitation of the facts that would bring the case within the purview of the statute. The motion should include the victim’s age, the type of offense, the fact that the victim is unavailable, and it should identify one of the three reasons outlined in the statute. A sample court motion is provided for your information.

The court may order that the testimony of the child be taken by closed-circuit television if it finds that the child is unavailable to testify in open court in the presence of the defendant, the jury, the judge, and the public for any of the following reasons:

  1. The child’s persistent refusal to testify despite judicial requests to do so;
  2. The child’s substantial inability to communicate about the offense; and/or
  3. The substantial likelihood, based upon expert opinion testimony, that the child will suffer severe emotional trauma from so testifying.

Expert testimony in a motion hearing should focus on the specific child in the case and not child abuse victims in general. Expert testimony should describe how testifying about the facts of the case would traumatize this child.

If the judge makes a finding that the child is unavailable to testify and thus closed-circuit television shall be used, the statute requires the court to support its findings on the record. If the court is not a court of record, then the court shall make written findings. It is important to assure that the record is clear to avoid any procedural problems. A sample court order is provided.

If the first motion to use closed-circuit testimony is in a Juvenile and Domestic Relations District Court and the case proceeds to a Circuit Court, the motion for use of closed-circuit testimony must be repeated.

The United States Supreme Court upheld the use of one-way closed-circuit television in Maryland v. Craig, 110 S. Ct. 3157 (1990). The Court said that the confrontation clause does not prohibit child witnesses from testifying against a defendant at trial, outside the defendant’s presence, by one-way closed-circuit television if a “necessity” showing is made by any quantum of proof that the child victims would be traumatized and likely suffer emotional distress by testifying in the defendant’s presence.

Technical Preparation

Before equipment is installed in any courtroom, the State Police technical agent assigned to the case will make arrangements to view the site. This allows the agent to become aware of any technical or logistical problems that must be overcome. Installation of the equipment, on average, takes two hours to set up and two hours to break down. Arrangements must be made with the court by the requesting local attorney to have adequate time for installation of the equipment on the day of the hearing.

The room selected for the child witness should be a private area away from normal pedestrian traffic. For technical reasons, it needs to be no more than 200 feet from the courtroom. The room should be free of any distracting background noises. It is suggested that the room be at least 8 x 10 feet.

Below is a list of equipment used by the State Police for closed-circuit courtroom systems. Specific types of equipment were selected after consideration was given to how the equipment was to be used and to provide for portability. All equipment is of commercial grade, as opposed to consumer grade. Commercial grade equipment, constructed to a more rugged standard, lasts longer when moved from location to location. The equipment is maintained by the Virginia State Police and is provided to local courts at no cost upon request.

Item & Quantity

 

VHS Camera/Recorder 2
Tripod for Camera 2
Microphones
Omni-directional
Directional

2
2
Large Monitor (<20 inch) 2
Small Monitor (>20 inch) 3
Telephone Line Simulator 1
Touchtone Telephone 2
Video Cable (100 ft.) 6
Telephone Cable (100 ft.) 3

The State Police technical special agent assigned to the case will install the equipment as requested by the participants; however, they are instructed to involve the judge and to be guided by the judge’s wishes. The agent will contact the court, review the rooms, and make recommendations based on his/her experience. The operation of the equipment is solely the responsibility of the State Police technical special agent. There are several points that will be under consideration when the agent makes the determination concerning setup of the equipment.

Number of Monitors: The normal system has five monitors. There is no requirement for all five monitors to be used. Each courthouse will require a setup dependent upon conditions in that particular courtroom. If additional monitors are necessary, more will be provided. The monitors should provide a view to all parties of the case (jury, judge, etc.).

Camera View: The witness must be within the view of the camera in the witness room. The judge should be consulted if the camera view should include other persons in the room (i.e., prosecutor, defense attorney) or focus only on the witness. In the courtroom, the camera will normally be directed on the judge.

Telephone Communication: A system will be provided to the defendant and his/her attorney to communicate in private should that communication become necessary. However, due to the size of the rooms involved, it may become necessary for the attorney to leave the witness room and discuss issues with the defendant in the courtroom. In any event, all possible efforts will be made to ensure the defendant and attorney can communicate in private.

It is important to note that when speaking, all parties should face the camera in order that a clear image is projected on the monitor to the next room. A common tendency for judges is to speak to the monitor rather than to the camera. This results in a partial image of the judge projected into the witness room. In the witness room, the camera should be over the shoulder, or next to the person questioning the child, to ensure that a clear picture of the child is projected into the courtroom. A clear image of the child on the television screen in the courtroom is dependent on whether or not the child looks toward the camera in the witness room.

The State Police technical special agent will be available to testify on the record, if necessary, to the technology and equipment being used. In lieu of testimony, a stipulation should be made on the record as to the technology.

The closed-circuit statute requires that two-way cameras be used to transmit testimony from one room to another. The statute does not require that a tape be made of the testimony, although equipment from the State Police is capable of taping the proceeding. A videotape of the child’s testimony will be made only if requested by the presiding Judge. The videotape will then be submitted to the court by the State Police technical special agent for the court to retain custody of the videotape as part of the court record.

Preparation of the Child Witness

The preparation of a child who will testify by closed-circuit is similar to the preparation that would be provided if the child were to testify live, with a few obvious exceptions. In addition, some practical matters that lead up to the actual taking of closed-circuit two-way testimony should be considered.

The best preparation for a child to testify begins several weeks before the court hearing rather than immediately before the hearing. To meet the filing deadlines in the closed-circuit statute, it is recommended that the attorney meet the child witness well before the court date to assess any needs for this special testifying procedure.

The child should be exposed to the courtroom, the setting in which the testimony will occur, and the equipment that will be used. This will help the child feel more comfortable and relaxed. Also, it is important to review testimony with a child the day before the hearing. The child should be made aware of all exhibits that will be used during the testimony.

Good witness preparation involves explaining to the child all the people involved in a court proceeding and their different roles and responsibilities. The camera operators should introduce themselves to the child and explain how the equipment will work. The child should see the courtroom where the testimony will be projected and where the judge and the defendant will be.

Identify for the child all individuals who will be in the witness room when the child testifies. The statute provides for certain individuals: the commonwealth’s attorney, the defendant’s attorney, persons necessary to operate the closed-circuit equipment, and any other person whose presence is determined by the court to be necessary to the welfare and well-being of the child. It is recommended that the prosecutor review with the child a list of potential support persons. This provides the child a sense of participation, and permits the prosecutor to identify a support person who will be available for the child (someone who will not be called upon to testify).

It is important to provide an adequate chair for the child in the room where he/she will testify. In a regular-sized chair, the table could block a small child. Elevation of the child or the chair may be necessary for adequate projection of the child’s image into the courtroom.

Because the child is not in the courtroom, an additional witness may have to testify to the identification of the defendant. During the child’s testimony, ask for as many details as possible about the defendant and how the child knows the defendant. Another witness, perhaps a family member, can verify the identification in open court. If the defendant was a stranger, it may be necessary for the child to identify the defendant from a photo spread.

How to Access Equipment & Technical Assistance

Closed-circuit equipment and technical assistance is provided at no cost to a local court, on a first-come first-served basis. Contact the State Police Technical Unit at (804) 674-2669 for the initial request for closed-circuit equipment and the form for the written confirmation request.

Requests for this service should be submitted in writing by mail or FAX (NOT e-mail) to:

Virginia Department of State Police
Bureau of Criminal Investigations
Criminal Intelligence Division
P.O. Box 27472
Richmond, Virginia 23261
FAX: (804) 674-2198

Direct questions about this service to:
Assistant Special Agent-in-Charge
Virginia State Police Technical Unit
(804) 674-2517

To cancel or reschedule requests contact:
Virginia State Police Technical Unit
(804) 674-2517

It is important to contact the State Police as soon as possible if closed-circuit television equipment will be needed. This request should include a copy of the motion filed with the court for the use of closed-circuit testimony. The State Police will not be able to set up equipment until a decision on the motion is made. The State Police need as much advance notice as possible in order to schedule the equipment and technicians.

Return to the Children's Justice Act page

Virginia Department of Criminal Justice Services
1100 Bank Street
Richmond, VA 23219
804.786.4000

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