Child Witness Testimony in Georgia Sex Crime Cases
If you were charged with a sex crime in Georgia, you are probably scared and overwhelmed. Even though you are supposed to be innocent until proven guilty, it does not always seem that way. There are many defenses at your disposal, and our Georgia Sex Crime Lawyers are here to help. If you or a loved one has been charged with a sex crime, contact our office immediately.
Child Witness Testimony
Under O.C.G.A. § 17-8-55, “child” is defined to mean an individual under the age of 17. Previously, “child” was limited to those 10 and under. On July 1, 2019, a new law was enacted that allowed children to give their testimony outside of the presence of the defendant in many criminal cases in Georgia. House Bill 804 amended O.C.G.A. § 17-8-55 to enable a child to testify at trial via closed-circuit television in certain cases. This law specifically applies in cases where a child is a witness or an alleged victim of one of the following offenses: murder, simple assault, simple battery, battery, kidnapping, cruelty to children, stalking, violating family violence order, armed robbery, and participation in criminal gang activity.
This also applies in certain sex crime cases including:
- Statutory rape
- Child molestation
- Enticing a child for indecent purposes
- Sexual assault
- Sexual battery
- Aggravated sexual battery
In practice, the prosecuting attorney will file a motion with the court requesting a hearing to determine whether the child should be permitted to testify outside of the physical presence of the accused. These motions must be made at least 10 days before trial. When considering the motion, the court will look at whether testifying in the presence of the accused is likely to cause the child serious psychological or emotional distress or trauma, which impairs the child's ability to communicate. They will consider whether a preponderance of the evidence supports this. O.C.G.A. § 17-8-55(d)
In determining whether a preponderance of the evidence has been shown, the court may consider:
(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:
(A) The parent, guardian, legal custodian, or other person responsible for the custody or care of the child at the relevant time; or
(B) 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:
(A) Is living in the same household with the child;
(B) Has ready access to the child; or
(C) 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.
If the court finds that psychological or emotional distress or trauma is likely if the child is required to testify in court, then they can issue an order requiring the child to testify outside the presence of the accused. The order must state the method by which the child shall testify; the names of those allowed to be in the child's presence during the testimony; any special conditions on the participation of such individuals and conditions necessary for cross-examination. Additionally, if the accused's counsel is not allowed to be present during the testimony, then the prosecuting attorney will not be allowed to be present either.
If you have a question about child testimony or a question about your criminal case in Georgia, contact us today. Our office has over 50 combined years of criminal defense experience. Our office is open 7 days a week, 24 hours a day to answer your questions. We understand that you may have a question outside of regular business hours and are here to help. Call now for a free case evaluation.