Another child witness accommodation in a criminal sexual conduct case is the allowance for the child witness to testify outside the presence of the defendant. There are different levels of testifying outside the presence of the defendant.
Preliminary Examination (hearing where prosecution has to show a crime occurred and probable cause the defendant committed the crime)
In order for a child witness to testify outside the presence of the defendant for the prelim, the court must find on the record the arrangements are necessary to protect the welfare of the witness. The factors considered in this determination are:
(1) age of the witness
(2) nature of the offense
(3) desire of the witness or witness’ family to have the testimony taken in a room closed to the public
(4) physical condition of the witness.
If the Court grants this motion, it will order that people not necessary to the proceeding are excluded from the courtroom and the courtroom will be arranged so the defendant is seated as far from the witness stand as is reasonable and not directly in front of the witness stand. The defendant must be able to hear and see the witness.
Trial
If the Court finds special arrangements are necessary before the trial, the Court again must determine whether the arrangements are necessary at trial. The Court will consider the same four factors listed above. If the Court determines arrangements are necessary, it will do one or more of the following: (1) All persons not necessary will be excluded (the witness’ testimony will be broadcast by closed-circuit television to the public in another location), or (2) the courtroom shall be arranged so the defendant is seated as far from the witness stand as is reasonable and not directly in front of the witness stand.
Finally, if the court finds that even with the accommodations discussed above, the witness is psychologically or emotionally unable to testify at a court proceeding, the court shall order the witness may testify outside the physical presence of the defendant by closed circuit television. In those situations, the witness will still be observable by the trier of fact (judge or jury) and the defendant.
If you or a family member is charged with rape in Michigan, contact our office. Every detail in criminal sexual conduct cases is essential to your defense.
