E. Minor testimony in non-juvenile courts
In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607–08 (1982), the Supreme Court recognized a First Amendment access right and struck down a statute that required “the exclusion of the press and general public during the testimony of a minor victim in a sex-offense trial.” At the same time, the Court found that the interest in “safeguarding the physical and psychological well-being of a minor” can be a compelling one justifying closure. The Court ruled that “[a] trial court can determine on a case-by-case basis whether closure is necessary to protect the welfare of a minor victim. Among the factors to be weighed are the minor victim’s age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives.” Id. (footnotes omitted).
The Second Circuit generally follows the Supreme Court’s ruling in Globe Newspaper Co. v. Superior Court regarding the First Amendment allowing the press to publicize a minor’s testimony. 457 U.S. 596, 607-08 (1982). However, the Second Circuit has upheld the partial closing of the courtroom during a minor’s testimony: in United States v. Ledee, the Second Circuit held that the closure of the courtroom during a victim’s testimony to all persons not directly involved in the trial did not violate the defendant’s Sixth Amendment right to a public trial. 762 F.3d 224, 229 (2d Cir. 2014) (distinguishing its facts as not the general facts controlled by the Supreme Court’s ruling in Globe Newspaper Co. “but rather a tailored closure as applied to one eight-year-old sex-abuse victim (ten years old at the time of trial) under the circumstances of this case”).
Mandatory closure during the testimony of minor victims of sex-offense crimes violates the public’s First Amendment right of access to criminal trials. Whether a trial court should close the courtroom during minor testimony must be analyzed on a case-by-case basis in which the trial court weighs the minor victim’s age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives. See Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 607 (1982); see also Bell v. Jarvis, 236 F.3d 149 (4th Cir. 2000) (order closing courtroom during minor’s testimony violated the defendant’s Sixth Amendment right to a public trial).
The Fifth Circuit has held that the goal of protecting the privacy interests and psychological well-being of a minor can be sufficient for closure, particularly if there is evidence that the minor has been suffering from emotional trauma. United States v. Hitt, 473 F.3d 146, 154 (5th Cir. 2006).
Partial closure of the courtroom for the testimony of a minor has also been upheld in the Fifth Circuit with a lesser standard of review. United States v. Osborne, 68 F.3d 94, 98 (5th Cir. 1995). Partial closure (allowing some spectators in the courtroom) does not raise the same concerns that total closure raises since an audience remains to ensure the fairness of the proceedings. Therefore, for partial closure a court must only find a “substantial reason” for the closure. Id.
In U.S. ex rel. Morgan v. Lane, 705 F. Supp. 410 (N.D. Ill. 1989), habeas corpus petitioner convicted of raping a minor argued that excluding members of the general public from the courtroom during testimony of the juvenile witnesses violated his Sixth Amendment right to a public trial. The district court rejected that argument, holding closure was consistent with the test articulated in Waller v. Georgia, 467 U.S. 39 (1984). “[S]afeguarding the physical and psychological well-being of a minor testifying in a rape case is a compelling state interest,” and “[t]he Seventh Circuit has stated that the exclusion of spectators during the testimony of an alleged rape victim is a frequent and accepted practice when the details of such crime must be related by a woman.” 705 F. Supp. at 414 (citing United States ex rel. Latimore v. Sielaff, 561 F.2d 691, 694 (7th Cir. 1977)). “[P]artial closure, limited to the testimony of the juvenile witnesses, was not broader than necessary,” and “[t]he trial court further lessened the impact of the closure by allowing interested persons, such as family and counselors, and the media to remain.” Id.
Furthermore, the Victims’ Protection and Rights Act provides:
When a child testifies the court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made if the court determines on the record that requiring the child to testify in open court would cause substantial psychological harm to the child or would result in the child’s inability to effectively communicate. Such an order shall be narrowly tailored to serve the Government’s specific compelling interest.
18 U.S.C. 3509(e).
“No case has specifically defined what constitutes ‘substantial psychological harm,’ but before the statute was enacted, the Supreme Court suggested that a district court should consider ‘the minor victim’s age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives’ when determining whether to close the courtroom.” United States v. Troup, 2012 WL 3818242, at *4 (N.D. Ind. Aug. 31, 2012) (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 608 (1982)) (holding government “discharged its burden with respect to the one child victim/witness,” but not with respect to the non-victim child witnesses).
Consistent with Globe Newspapers v. Superior Court, 457 U.S. 596, the Georgia Supreme Court has held that a trial judge can determine on a case-by-case basis whether closure is necessary to protect the welfare of a minor victim. Florida Publ’g Co. v. Morgan, 253 Ga. 467 (1984). However, Georgia courts have not hesitated to rectify closures not meeting this standard. See, e.g., Altman v. Altman, 301 Ga. 211, 217–18 (2017) (trial court’s conclusory findings that the transcript of in-chambers interviews of children in a divorce matter is “of a nature that [is] protected and privileged from disclosure as public record” and that there has been “good cause shown” are insufficient to support a restriction on public access to court records); Jackson v. State, 339 Ga. App. 313 (2016) (reversing aggravated child molestation convictions of defendant where trial court failed to make findings adequate to support its closure of courtroom during testimony of defendant’s stepdaughter).
Kansas allows victims of crime under 13 years of age to testify in court via closed-circuit television or a video recording. K.S.A. 22-3434. To qualify a minor to give televised or video-recorded testimony, “The state must establish by clear and convincing evidence that to require the child who is the alleged victim to testify in open court will so traumatize the child as to prevent the child from reasonably communicating to the jury or render the child unavailable to testify.” K.S.A. 22-3434(b). When the child is before a camera giving testimony, no one may be present in the room except for the defendant’s attorneys, the prosecution, the equipment operators, and “any person whose presence would contribute to the welfare and well-being of the child.” K.S.A. 22-3434(c)(1).
Kansas Supreme Court Rule 1001 on media coverage of court proceedings includes restrictions on photographing or recording crime victims, witnesses and juveniles. See “Cameras and other technology in the courtroom” section below, and Kan. Sup. Ct. R. 1001, Media Coverage of Judicial Proceedings, http://www.kscourts.org/rules/Media_Coverage/Rule%201001.pdf.
In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607-08 (1982), the Supreme Court recognized a First Amendment access right and struck down a statute that required “the exclusion of the press and general public during the testimony of a minor victim in a sex-offense trial.” At the same time, the Court found that the interest in “safeguarding the physical and psychological well-being of a minor” can be a compelling one justifying closure. The Court ruled that “[a] trial court can determine on a case-by-case basis whether closure is necessary to protect the welfare of a minor victim. Among the factors to be weighed are the minor victim’s age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives.” Id. (footnotes omitted).
In Tillman v. State, 947 So.2d 993 (Miss. App. 2006), the Mississippi Court of Appeals held that the defendant's right to a public trial was not violated when the trial court excluded the public from the courtroom during testimony of a child sexual assault victim. The court recognized the sensitive nature of the testimony, the family dynamics, the emotional state of the child and the child’s age. Id. at 995. During the child’s testimony, the court was closed to everyone except necessary court personnel, the defendant, and the defendant's attorney. Id. Everyone else was allowed to return at conclusion of testimony. Id.
Nevada has enacted the Uniform Child Witness Testimony by Alternative Methods Act, NRS § 50.500 et seq., which provides certain protections for child witnesses under the age of 14 years in criminal or noncriminal proceedings. Additionally, in custody proceedings, Nev. R. Civ. P. 16.215 governs child witnesses.
Further, local court rules may limit or prohibit minors’ testimony or attendance. For example, the Eighth Judicial District Court Rules governing Family Division Matters; Guardianship restricts minor children’s attendance and testimony as follows:
Rule 5.06. Minor children; appearance at courthouse. Unless authorized in advance by a judge, master, commissioner, Family Mediation Center (FMC) specialist or Court Appointed Special Advocate (CASA) representative, no minor child of the parties shall be brought to the courthouse for any court hearing, trial, CASA or FMC appointment which concerns that child or the child’s parents. In exceptional cases, the judge, master or commissioner may interview minor children in chambers outside the presence of counsel and the parties. Minor children will not be permitted to testify in open court unless the judge, master, or commissioner determines that the probative value of the child’s testimony substantially outweighs the potential harm to the child. The court may impose sanctions for a willful violation of this rule by either a litigant or counsel.
In New Mexico there appears to be no automatic right to all minor testimony. Whenever testimony is taken from the minor concerning his choice of custodian, the court shall hold a private hearing in his chambers. The judge shall have a court reporter in his chambers who shall transcribe the hearing; however, the court reporter shall not file a transcript unless an appeal is taken. NMSA 1978, § 40-4-9(C).
Under Pennsylvania law, in a prosecution involving a child victim of sexual or physical abuse, the name of the child victim shall not be disclosed by officers or employees of the court to the public, and any records revealing the name of the child victim shall not be open to public inspection, unless the court orders otherwise. Violation of this section is a misdemeanor of the second degree. 42 Pa. Cons. Stat. § 5988. This does not prohibit the press from publishing the name of the child victim; it only prohibits officers or employees of the court from disclosing the name of the child victim.
See State v. Roders, 125 Wis. 2d 572, 373 N.W.2d 85 (Wis. App. 1985) (unpublished) (Court did not abuse its discretion when it denied the defendant’s request to exclude the parents of minor victims from the courtroom during a criminal trial); see also State v. G.B., 204 Wis. 2d 108, 552 N.W.2d 897 (Ct. App. 1996) (unpublished).