Testimony of Child Less Than 17 Years Old Outside Physical Presence of Accused

  1. Law
  2. Georgia Code
  3. Criminal Procedure
  4. Trial
  5. Conduct of Proceedings
  6. Testimony of Child Less Than 17 Years Old Outside Physical Presence of Accused

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  1. As used in this Code section, the term "child" means an individual who is under 17 years of age.
  2. This Code section shall apply to all proceedings when a child is a witness to or an alleged victim of a violation of Code Section 16-5-1, 16-5-20, 16-5-23, 16-5-23.1, 16-5-40, 16-5-70, 16-5-90, 16-5-95, 16-6-1, 16-6-2, 16-6-3, 16-6-4, 16-6-5, 16-6-5.1, 16-6-11, 16-6-22, 16-6-22.1, 16-6-22.2, 16-8-41, or 16-15-4.
  3. The court, upon the motion of the prosecuting attorney or the parent, legal guardian, or custodian of a child, or on its own motion, shall hold an evidentiary hearing to determine whether a child shall testify outside the physical presence of the accused. Such motion shall be filed, or requested by the court, at least ten days prior to trial unless the court shortens such time period for good cause, as it deems just under the circumstances.
  4. The court may order a child to testify outside the physical presence of the accused, provided that the court finds by a preponderance of the evidence that such child is likely to suffer serious psychological or emotional distress or trauma which impairs such child's ability to communicate as a result of testifying in the presence of the accused. In determining whether a preponderance of the evidence has been shown, the court may consider any one or more of the following circumstances:
    1. The manner of the commission of the offense being particularly heinous or characterized by aggravating circumstances;
    2. The child's age or susceptibility to psychological or emotional distress or trauma on account of a physical or mental condition which existed before the alleged commission of the offense;
    3. At the time of the alleged offense, the accused was:
      1. The parent, guardian, legal custodian, or other person responsible for the custody or care of the child at the relevant time; or
      2. A person who maintains or maintained an ongoing personal relationship with such child's parent, guardian, legal custodian, or other person responsible for the custody or care of the child at the relevant time and the relationship involved the person living in or frequent and repeated presence in the same household or premises as the child;
    4. The alleged offense was part of an ongoing course of conduct committed by the accused against the child over an extended period of time;
    5. A deadly weapon or dangerous instrument was used during the commission of the alleged offense;
    6. The accused has inflicted serious physical injury upon the child;
    7. A threat, express or implied, of physical violence to the child or a third person if the child were to report the incident to any person or communicate information to or cooperate with a court, grand jury, prosecutor, police officer, or law enforcement office concerning the incident has been made by or on behalf of the accused;
    8. A threat, express or implied, of the incarceration of a parent, relative, or guardian of the child, the removal of the child from the family, or the dissolution of the family of the child if the child were to report the incident to any person or communicate information to or cooperate with a court, grand jury, prosecutor, police officer, or law enforcement office concerning the incident has been made by or on behalf of the accused;
    9. A witness other than the child has received a threat of physical violence directed at such witness or to a third person by or on behalf of the accused, and the child is aware of such threat;
    10. The accused, at the time of the inquiry:
      1. Is living in the same household with the child;
      2. Has ready access to the child; or
      3. Is providing substantial financial support for the child; or
    11. According to expert testimony, the child would be particularly susceptible to psychological or emotional distress or trauma if required to testify in open court in the physical presence of the accused.
  5. A court order allowing or not allowing a child to testify outside the physical presence of the accused shall state the findings of fact and conclusions of law that support the court's determination. An order allowing the use of such testimony shall:
    1. State the method by which such child shall testify;
    2. List any individual or category of individuals allowed to be in the presence of such child during such testimony, including the individuals the court finds contribute to the welfare and well-being of the child during his or her testimony;
    3. State any special conditions necessary to facilitate the cross-examination of such child;
    4. State any condition or limitation upon the participation of individuals in the child's presence during such child's testimony;
    5. Provide that the accused shall not be permitted to be in the physical presence of a child during his or her testimony if the accused is pro se;
    6. Provide that if counsel for the accused or the accused is precluded from being physically present during the child's testimony, then the prosecuting attorney shall likewise be precluded from being physically present; and
    7. State any other condition necessary for taking or presenting such testimony.
  6. The method used for allowing a child to testify outside the physical presence of the accused shall allow the judge, jury, and accused to observe the demeanor of the child as if he or she were testifying in the courtroom. When such testimony occurs it shall be transmitted to the courtroom by any device or combination of devices capable of projecting a live visual and oral transmission, including, but not limited to, a two-way closed circuit television broadcast, an Internet broadcast, or other simultaneous electronic means. The court shall ensure that:
    1. The transmitting equipment is capable of making an accurate transmission and is operated by a competent operator;
    2. The transmission is in color and the child is visible at all times;
    3. Every voice on the transmission is audible and identified;
    4. The courtroom is equipped with monitors which permit the jury, the accused, and others present in the courtroom to see and hear the transmission; and
    5. The image and voice of the child, as well as the image of all other persons other than the operator present in the testimonial room, are transmitted live.

(Code 1981, §17-8-55, enacted by Ga. L. 2014, p. 205, § 1/HB 804; Ga. L. 2019, p. 74, § 2-6/SB 158.)

The 2019 amendment, effective July 1, 2019, deleted "16-6-14," following "16-6-11," in subsection (b). See Editor's note for applicability.

Editor's notes.

- Former Code Section 17-8-55, relating to judge's expression of opinion as to matters proved or guilt of accused, was redesignated as Code Section 17-8-57 by Ga. L. 1985, p. 1190, § 1.

Ga. L. 2014, p. 205, § 1/HB 804, effective July 1, 2014, repealed former Code Section 17-8-55, pertaining to testimony of child ten years old or younger by closed circuit television, and enacted the present Code section. The former Code section was based on Ga. L. 1985, p. 1190, § 1; Ga. L. 1990, p. 8, § 17; Ga. L. 1991, p. 1377, § 1.

Ga. L. 2019, p. 74, § 1-1/SB 158, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Anti-Human Trafficking Protective Response Act.'"

Ga. L. 2019, p. 74, § 3-1/SB 158, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2019, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2019, shall be governed by the statute in effect at the time of such offense, and any resulting conviction shall be considered a prior conviction for the purpose of imposing a sentence that provides for a different penalty for a subsequent conviction."

Law reviews.

- For article on the 2014 enactment of this Code section, see 31 Ga. St. U.L. Rev. 75 (2014). For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 63 (2019). For comment, "Child Sexual Abuse: A New Decade for the Protection of Our Children?," see 39 Emory L.J. 581 (1990).

JUDICIAL DECISIONS

Waiver of confrontation clause claim.

- Trial counsel did not provide ineffective assistance under Ga. Const. 1983, Art. I, Sec. I, Para. XIV by failing to object when the trial court allowed a partition to be placed between the defendant and the children, allegedly in violation of U.S. Const., amend. 6 and Ga. Const. 1983, Art. I, Sec. I, Para. XIV, when the children testified in the molestation case; the defendant waived the confrontation claim since the defendant arranged for the partition in order to head off the state's request for testimony via closed-circuit television pursuant to O.C.G.A. § 17-8-55, and defense counsel's failure to object, therefore, could not be challenged because this fell into the realm of strategy. Zepp v. State, 276 Ga. App. 466, 623 S.E.2d 569 (2005), overruled on other grounds, Schofield v. Holsey, 281 Ga. 809, 642 S.E.2d 56 (2007), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).

Cited in Kuptz v. State, 179 Ga. App. 150, 345 S.E.2d 670 (1986); Martin v. State, 205 Ga. App. 591, 422 S.E.2d 876 (1992).

RESEARCH REFERENCES

ALR.

- Closed-circuit television witness examination, 61 A.L.R.4th 1155.

Determination of request for exclusion of public from state criminal trial in order to preserve safety, confidentiality, or well-being of witness who is not undercover police officer - issues of proof, consideration of alternatives, and scope of closure, 32 A.L.R.6th 171.

Basis for exclusion of public from state criminal trial in order to preserve safety, confidentiality, or well-being of witness who is not undercover police officer, 33 A.L.R.6th 1.

Am. Jur. 2d.

- 81 Am. Jur. 2d, Witnesses, § 198 et seq.


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