State High Court Bars Children’s Testimony by TV

The state Supreme Court refused Thursday to allow children to testify on closed-circuit television in a child-molestation trial, an action that may affect the McMartin Pre-School molestation case.

Over Justice Malcolm Lucas’ dissent, the court refused to grant a hearing on the prosecution’s appeal of a decision last November by the state’s 2nd District Court of Appeal in Los Angeles that said closed-circuit testimony was unauthorized by law and “constitutionally questionable.”

Four votes are needed for a hearing by the seven-member court.

The case involved Zef Hochheiser, charged in Van Nuys with molesting two boys. The boys’ parents testified that the prospect of appearing in court terrified their children, causing one of them nightmares.

After the November ruling in Hochheiser’s case, a Municipal Court judge refused to allow closed-circuit testimony by children in the McMartin case, in which seven employees of the Manhattan Beach preschool are charged with 207 counts of molestation involving 41 children.

Los Angeles County Dist. Atty. Ira Reiner cited the McMartin case in asking the Supreme Court to grant a hearing and reverse the Hochheiser decision.

Unless televised testimony is allowed, “the harm already suffered by the children may be compounded by compelling them to testify in the physical presence of defendants, or the children may refuse or be unable to so testify, in which event further prosecution of the (McMartin) defendants will be precluded,” wrote Deputy Dist. Atty. Richard Gerry.

Reiner’s press secretary, Al Albergate, had no comment Thursday on the effect of the court’s action.

The state Senate has passed a bill that would allow closed-circuit testimony if the judge decided that a child would be harmed by testifying in court in the defendant’s presence. The bill is now in the Assembly.

But it is unclear whether the bill could be applied to a pending case like McMartin or whether it would be constitutional.

The appeals court ruling in Hochheiser’s case, by Justice Earl Thompson, said that allowing prosecution witnesses to testify outside the courtroom was “constitutionally questionable,” with potential effects on Hochheiser’s “fundamental rights to a public trial, confrontation of witnesses against him, and due process.”

“The camera becomes the juror’s eyes, selecting and commenting upon what is seen,” Thompson wrote. He said the camera can distort perception and lend legitimacy to its subject; also, that the procedure may lead jurors to believe the defendant is probably guilty.

But the court did not decide the constitutional question, ruling instead that a judge has no legal authority to allow closed-circuit testimony in a trial.

The Supreme Court action Thursday left the appellate ruling intact. It is binding only in Los Angeles County and the rest of the 2nd District; but as the first known appellate opinion on the subject, it is likely to influence courts statewide.

State law does allow a videotape of a child’s in-court testimony at a preliminary hearing to be used at trial if the judge decides, on the basis of medical evidence, that testifying in court would traumatize the child.

In Hochheiser’s case, the prosecution asked for the children to be allowed to testify in a separate room, with the judge, jury, lawyers and defendant watching on television.

Superior Court Judge Richard Kolostian ruled last June that he could authorize the procedure under his inherent legal power to supervise the form of testimony in his court.

But the appeals court said the judge’s inherent authority covers only the types of questions a witness can be asked, and not whether the witness needs to be in court.

Thompson also said that closed-circuit testimony is not authorized by a state law requiring a judge in a molestation case to “do whatever is necessary and constitutionally permissible to prevent psychological harm to the child victim.”

More explicit authority is needed for such a “radically new procedure,” Thompson said.