Metropolitan News-Enterprise


Tuesday, December 18, 2012


Page 3


Court of Appeal Rules Child Crime Witnesses, Not Just Victims, May Testify Remotely


By a MetNews Staff Writer


Permitting child witnesses who would be traumatized by having to face the accused to testify remotely does not violate the defendant’s rights under the Confrontation Clause, even if the witnesses aren’t themselves victims of the crime, this district’s Court of Appeal held yesterday.

Div. Six, in a unanimous opinion, said that the United States Supreme Court’s ruling in Maryland v. Craig (1990) 497 U.S. 836, approving the right of an abuse victim to testify by closed-circuit television, does not restrict the use of the procedure in cases involving children who witness crimes.

In 2010, a jury convicted James C. Lujan of the torture of 17-month old Lena and four-year old Diego, children of two women he had lived with at different times, and of second degree murder and child abuse resulting in Diego’s death.

One of the prosecution’s witnesses was Diego’s sister, Vanessa, who was seven at the time of trial.

Santa Barbara Superior Court Judge Edward H. Bullard allowed Vanessa to testify against Lujan from a separate room over two-way, closed-circuit television. Vanessa’s room contained a monitor on which she could see everyone in the courtroom except Lujan. The jury could see Vanessa on its own video monitor.

Bullard approved the procedure based on the testimony of a detective and a family therapist, finding that remote testimony was “necessary for the protection of [Vanessa] because she would be unable to testify in front of [Lujan] because of fear that [she] would suffer emotional trauma from testifying in open court.”

Constitutional Limits

On appeal Lujan argued that allowing children who are not victims to testify remotely unconstitutionally crossed the boundary set forth by the Supreme Court.

But Los Angeles Superior Court Judge Brian Hoffstadt, assigned to the Court of Appeal, disagreed, saying:

“At no point in the Craig opinion … did the Supreme Court indicate that it was staking out the perimeter of when the Confrontation Clause permits remote testimony.”

The panel noted that while in general the Confrontation Clause guarantees a criminal defendant the right to face witnesses appearing before the trier of fact, the Supreme Court held in Coy v. Iowa (1988), 487 U.S. 1012, that such testimony is not necessary when alternate procedures, such as testimony from a remote location, are necessary to further an important government public policy.

Hoffstadt wrote:

“So far the United States Supreme Court has been called upon to apply Coy’s exception in only one case. In Craig, the Court upheld a Maryland statute that authorized underage victims of child abuse to testify by one-way, closed-circuit TV upon a witness-specific showing that face-to-face testimony would be traumatic to the child.”

He added that in Craig the court viewed Maryland’s interest in protecting minors who are the victims of sex crimes from further trauma as not only important, but “compelling.”

But, he said:

“At no point in the Craig opinion … did the Supreme Court indicate that it was staking out the perimeter of when the Confrontation Clause permits remote testimony. … [The] State has an important public policy interest in protecting minor witnesses who are not victims from the trauma of facing in court the perpetrators of the crimes they witnessed.

He added that the state’s “longstanding interest in protecting the welfare of children” applied as equally to children “who are forced to witness the abuse of their siblings at close range … [as] to the victims of such abuse.”

The panel also rejected Lujan’s claim that even if his constitutional rights were not violated, the trial court lacked the authority to order remote testimony, because California Penal Code Sec. 1347 limits the use of such testimony to child victims of certain enumerated offenses.

‘Inherit Authority’

While agreeing that Bullard’s order fell outside the ambit of the section, the panel said that the judge, nevertheless, “possess a constitutionally conferred, inherent authority to ‘create new forms of procedures’ in the gaps left unaddressed by statutes.”

Although courts should be mindful, Hoffstadt wrote, when exercising their inherent authority to fashion new procedures, “the Legislature in section 1347 itself declared its intent ‘to provide the court with discretion to employ alternative court procedures to protect the rights of a child witness, the rights of the defendant, and the integrity of the judicial process.’”

Because Bullard still required the state to comply with the procedural requirements of Sec. 1347, the panel concluded, his order permitting remote testimony by a non-victim child witness whom the court found would be traumatized by in-court testimony order was “an incremental extension, which did not “transmogrify criminal procedure in any fundamental way.”

Justices Kenneth Yegan and Steven Perren concurred in the opinion.

The case is People v. Lujan, 12 S.O.S. 6511.


Copyright 2012, Metropolitan News Company