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Senate Bill 119 Summary and Analysis1

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Origins of Senate Bill 119

Senate Bill 119 (SB 119) was introduced by Senator William Hamrick. SB 119 was introduced on February 9th in the Georgia 2007 General Assembly Legislative Session and was recommitted to the Senate on January 14, 2008.

Legislative Purpose

SB 119 would amend Titles 17 and 24 of the Official Code of Georgia Annotated (O.C.G.A.), relating to criminal procedure and evidence, respectively. The purpose of SB 119 is to provide a victim of crime and members of the victim's immediate family the right to be present in the courtroom during the trial process. SB 119 also clarifies that these rights apply equally in juvenile delinquency proceedings and criminal prosecutions.

Summary and Explanation of the Proposed Change

Title 17, Chapter 17 is titled the Crime Victims' Bill of Rights. The Crime Victims' Bill of Rights provides a victim with certain rights, such as the right to designate a person to exercise the victim's rights and privileges if the victim is physically disabled, (O.C.G.A. § 17-17-4); the right to notification of the arrest, parole release, or any release proceedings of the accused, (O.C.G.A. §§ 17-17-5-7, 13); and the right to express their opinion on the disposition of an accused's case, (O.C.G.A. § 17-17-11). The bill proposes to amend Chapters 17 and 24 of the O.C.G.A in the following ways:

  1. Allowing members of the immediate family of a victim subpoenaed to testify to be present at any hearing, trial, or proceeding pertaining to the offense unless the family member is shown to be a material and necessary witness.

    1. Current law Presently, Georgia law includes no provision for the rights of family members of a victim.

    2. Proposed change SB 119 adds a new section, § 17-17-17, prohibiting the exclusion of family members of the victim who will testify, unless the family member is considered to be a material or necessary witness. O.C.G.A. § 24-9-61 states that each party has the right to have the witnesses of the other party examined out of the hearing of each other. The purpose of the rule of sequestration of witnesses is to ensure that the testimony of a witness who has yet to testify is not influenced by that of another witness.2 Allowing testifying victims and their family members to hear the testimony of other witnesses affects the defendant's right to a fair trial. SB 119 does not address this concern, nor does it specifically amend O.C.G.A. § 24-9-61. However, the bill states that all "parts of laws in conflict with this Act are repealed."

  2. Limiting the discretion of the judge to exclude the victim of a delinquent act from the court during the trial or hearing of the offense

    1. Current law O.C.G.A. § 24-9-61.1 states that a victim "may" be entitled to be present in any court exercising jurisdiction over the offense, and the judge has "sole discretion" to determine when to allow victims to be present.

    2. Proposed change SB 119 proposes to amend the language of O.C.G.A. § 24-9-61.1 to state that a victim "shall" be entitled to be present in any court, "including a juvenile court." Also, SB 119 removes the provisions from O.C.G.A. § 24-9-61.1 which granted the judge "sole discretion" to determine whether victims may be present in the courtroom. SB119 allows the judge to remove a victim only either according to the rules that provide for the removal of the defendant, or after notice and a hearing on whether the presence of the victim would impair the conduct of fair trial. A party who wishes to exclude a victim from the courtroom for any reason other than misconduct must file a motion prior to the jury being empanelled, or in a bench trial prior to the first witness being sworn.

    3. Standard Applied to Defendants A defendant has a constitutional 6th Amendment right to be present at trial. But, according to the U.S. Supreme Court and the Supreme Court of Georgia, a defendant who is disruptive can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he continues to be so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom.3 One constitutionally permissible way for a trial judge to handle a disruptive defendant is to "take him out of the courtroom until he promises to conduct himself properly."4 There are no rules in the O.C.G.A. that specifically relate to the removal of a defendant.

    4. Other States As of 2005, more than 40 states provide victims the right to attend adult criminal trial; sixteen states provide victims unqualified rights to attend trials,5 and about twenty-five states give victims qualified rights.6 The protection given by 11 of these 25 states to a victim's right to attend adult criminal trial is as strong or stronger than SB 119, allowing the exclusion of a victim only if necessary to protect a defendant's fair trial rights.7 Five states specifically allow victims to attend juvenile hearings.8 Several states have made Crime Victim's Rights amendments to their constitutions, including Arizona and Michigan.9 The states that provide unqualified rights link the victims' rights to the accused's rights. Similar to the proposal in SB 119 most states will not allow a retrial if a victim is denied access to the courtroom.10

    5. Federal Rules Federal Rule of Evidence 615 states that at the request of a party, witnesses shall be excluded so they cannot hear the testimony of the other witnesses. However, persons authorized by statutes can be present.11 The federal Crime Victims' Rights Act of 2006 guarantees victims "the right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding."12 Therefore, as members of the public, victims and their family members should have every right of access to superior court granted to the general public. SB 119 does not extend victims' rights as far as either of these rules. SB 119 references "fairness" without limiting the definition to a possible change in the victim's testimony. Also, in Georgia, juvenile court proceedings are not fully open to the public. The logic that grants victims the right to attend hearings in superior court because they are public does not extend to allow victims to attend closed hearings in juvenile court. Opening juvenile courts to victims and their family members must have another rationale than that of the federal Crimes Victims' Rights Act. SB 119 does not offer any such rationale for opening juvenile courts.

The Effects on Juvenile Courts

O.C.G.A. § 15-11-78(a) only grants access to juvenile court proceedings to "the parties, their counsel, witnesses, persons accompanying a party for his or her assistance, and any other persons as the court finds have a proper interest in the proceeding." In juvenile court, victims are not parties. For a victim or a family member to be admitted he or she must qualify as a "person the court finds has a proper interest in the proceeding." O.C.G.A. § 15-11-78(a) alongside the current version of O.C.G.A. 24-9-61.1 grants the juvenile court judge "sole discretion" in this determination of who has a proper interest. SB 119 would restrict the discretion of the judge. Victims and their family members would presumptively be allowed to attend delinquency hearings. The judge could only exclude victims and their family members according to the same standards for excluding the defendant.

However, SB 119 only opens, to victims and their families, juvenile court hearings involving misdemeanors and minor felonies. O.C.G.A. § 15-11-78(b) already allows the general public to attend hearings involving allegations of felony-level offenses or hearings involving a child who previously been adjudicated delinquent. In these circumstances, as expressed in section 2(e) Federal Rules, victims and their family members would have the right to attend the adjudicatory hearing as members of the general public. As these hearings are already open to the public, SB 119 would not expand non-testifying victim's or victim's family members' access to juvenile court delinquency hearings concerning felony-level offenses.

SB 119 opens juvenile delinquency hearings involving misdemeanors and minor felony-level offenses to victims and their family members. Most of the discussion on opening juvenile courts is focused on deprivation hearings. However, proponents for opening juvenile courts argue that greater public access to court hearings is necessary to hold juvenile courts accountable to the public.13 Opponents of open courts argue that greater public access to hearings will traumatize the child.14 However, allowing victims and victims' family members greater access to delinquency hearings, without allowing the public greater access to the hearings, may hurt judicial accountability. The victim's presence could sway the court to be more sympathetic to the victim. SB 119 will not increase the accountability of juvenile courts to the public in preserving the child's best interests.

SB 119 significantly expands the right to attend court hearings for testifying victims and victim's family members. As juvenile courts are also subject to sequestration rule O.C.G.A. § 24-9-61, SB 119 will have the same impact on a defendant's right to have the other party's witnesses examined out of the hearing of each other in both juvenile courts and superior courts. Even though SB 119 allows the judge to schedule the victim's testimony as early as practical in the proceedings, victims can be called back to the stand at anytime during the proceeding. If the victim is allowed to hear other witnesses' testimony, the victim can still shape his subsequent testimony according to the other witnesses. The proposed amendment to O.C.G.A. § 24-9-61.1 creates an internal conflict within the statute. SB 119 allows the judge to remove the victim from the courtroom to preserve the fairness of the trial. The purpose of O.C.G.A. § 24-9-61 is to preserve the defendant's right to a fair trial by ensuring that the testimony of a witness, who has yet to testify, will not be influenced by that of another witness. But, SB 119's exemption of the victim from O.C.G.A. § 24-9-61 seems to remove the sequestration rule as a factor for determining fairness. Scheduling the victim to testify early does not eliminate this fairness problem.

SB 119 does allow the judge to sequester the family member of a victim who is a material and necessary witness, but it is the "party subpoenaing such person" that establishes

whether the family member is a material and necessary witness. There is no provision in SB119 that allows the defense to assert that a family member is a material witness if the prosecution does not. SB 119 does not contain a provision allowing a court to determine whether a victim is or is not a material or necessary witness as a basis for sequestering the victim.

Recommendation

SB 119's exemption of victims from O.C.G.A. § 24-9-61 jeopardizes the defendant's right to a fair trial. As an alternative, five states and the District of Columbia give victims the right to attend trial unless the victim's testimony would be affected.15 Illinois's victim rights statute provides:

Crime victims, as defined by law, shall have the following rights as provided by law: the right to be present at the trial and all other court proceedings on the same basis as the accused, unless the victim is to testify and the court determines that the victim's testimony would be materially affected if the victim hears other testimony at trial.16

The Illinois statute provides a better balance between the victims' and victims' family members' interest in attending the trial, and the defendant's interest in ensuring that the victim will not be able to tailor his testimony to that of the other witnesses. SB 119 should be amended to include language similar to the Illinois provision. Such provision would allow judges to include the sequestration rule as a factor in determining the fairness of the victim's presence in the courtroom.

Also, Wisconsin allows judges in closed juvenile court hearings to "exclude a victim from any portion of a hearing which deals with sensitive personal matters of the juvenile or the juvenile's family and which does not directly relate to the act or alleged act committed against the victim."17 SB 119 should be amended to allow judges to exclude victims from closed juvenile court hearings during the portions of the hearing involving personal matters sensitive to the juvenile and the juvenile's family. Such a provision preserves the present distinction between closed and open juvenile delinquency hearings.

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1 March 7, 2008 by Bradford Glick, Student Attorney, Emory University School of Law & Candler School of Theology, MTS, Class of 2009.

2 Craft v. State, 563 S.E.2d 472, 478 (Ga. Ct. App. 2002)

3 Illinois v. Allen, 397 U.S. 337, 343-44, (1970); State v. Fletcher, 314 S.E.2d 888, 889 (Ga. 1984)(citing Illinois v. Allen, 397 U.S. 337). See also West v. State, 610 S.E.2d 159, 161 (Ga. Ct. App. 2005)(citing Illinois v. Allen, 397 U.S. 337).

4 Illinois v. Allen, 397 U.S. at 344; State v. Fletcher, 314 S.E.2d at 889(quoting Illinois v. Allen, 397 U.S., at 344); West v. State, 610 S.E.2d at 161(quoting Illinois v. Allen, 397 U.S., at 344).

5 Douglas E. Beloof & Paul G. Cassell, The Crime Victim's Right to Attend the Trial: The Reascendant National Consensus, 9 Lewis and Clark L. Rev. 481, 504 (Fall 2005). Beloof's article states that seventeen states provide unqualified rights, but only sixteen states are listed in the article. Id. at n. 125. See Alaska Const. art. I, § 24; Ariz. Const. art. II, § 2.1(A); Colo. Const. art. II, § 16a; Idaho Const. art. I, § 22; La. Const. art. I, § 25; Mich. Const. art. I, § 24; Miss. Const. art. III, § 26A; Miss. Code Ann. § 99-43-21 (2004); Mo. Const. art. I, § 32; Mont. Code Ann. § 46-24-106(1) (2003); Nev. Const. art. I, § 8(2); N.M. Const. art. II, § 24; Okla. Const. art. II, § 34(A); Or. Const. art. I, § 42; S.C. Const. art. I, § 24; Tenn. Const. art. I, § 35; Utah Const. art. I, § 28(1).

6 Beloof, at 504.

7 Id. at 508. Five states give victims the right to attend trial, qualified by exclusion for interference with a defendant's constitutional rights. Id. Beloof's article states that six states give victims the right to attend trial limited only by a defendant's constitutional right, but only five states are listed. Id. at n. 133. See Ala. Const. art. I, § 6.01(a); Fla. Const. art. I, § 16(b); Ind. Const. art. I, § 13(b); Kan. Const. art.15, § 15; N.H. Rev. Stat. Ann. § 21-M:8-k(II)(e). Six states give victims the right to attend trials subject to exclusion if necessary to protect a defendant's "fair trial" rights. Beloof, at 504. See Ark. Stat. § 16-90-1103 (2004); Ark. R. Evid. 616; Cal. Penal Code § 1102.6 (2004); Neb. Const. art. I, § 28; Ohio Rev. Code Ann. § 2930.09 (West 2005); Ohio R. Evid. 615; Va. Code Ann. § 19.2-11.01(4)(b) (LexisNexis 2000); Va. Code § 19.2-265.01 (LexisNexis 2000) Wis. Stat. Ann. § 950.04 (West 2004); Wis. Stat. Ann § 906.15 (West 2004); Wis. Stat. Ann § 938.299(1) (West 2004).

8 Beloof, at nn. 125, 138. These states include Alaska, Arkansas, Ohio, Oregon and Wisconsin. Id. See Alaska Const. art. I, § 24 ("Crime victims... shall have... the right to... be allowed to be present all criminal or juvenile proceedings where the accused has the right to be present."); Ark. Stat. § 16-90-1103 (2004) ("The victim... may be present whenever the defendant has a right to be present during a court proceeding concerning the crime charged, other than the grand jury proceeding, unless the court determines that exclusion of the victim or the victim's representative is necessary to protect the defendant's right to a fair trial or the confidentiality or fairness of a juvenile proceedings."); Ohio Rev. Code Ann. § 2930.09 (West 2005) ("A victim in a case may be present whenever the defendant or alleged juvenile offender in the case is present during any stage of the case against the defendant or juvenile offender that is conducted on the record, other than a grand jury proceeding, unless the court determines that exclusion of the victim is necessary to protect the defendant's or alleged juvenile offender's right to a fair trial or a fair delinquency proceeding."); Or. Const. art. I, § 42 ("[T]he following rights are hereby granted to victims in all prosecutions for crimes and in juvenile court delinquency proceedings: (a) the right to be present at and, upon specific request, to be informed in advance of any critical stage of the proceedings held in open court when the defendant will be present...."); Wis. Stat. Ann § 906.15 (West 2004) ("(1) At the request of a party, a judge... shall order witnesses excluded so that they cannot hear the testimony of other witnesses. (2) Subsection (1) does not authorize exclusion of any of the following: (d) a victim... unless the judge or circuit court commissioner finds that exclusion of the victim is necessary to provide a fair trial for the defendant or a fair fact-finding hearing for the juvenile. The presence of a victim during the testimony of other witnesses may not by itself be a basis for finding that exclusion of the victim is necessary to provide a fair trial for the defendant or a fair fact-finding hearing for the juvenile.").

9 Beloof, at 504-06. See Ariz. Const. art. II, § 2.1(A); Mich. Const. art. I, § 24.

10 Beloof, at at 506.

11 Fed. R. Evid. 615.

12 18 U.S.C. § 3771 (emphasis added).

13 Barton Child Law and Policy Clinic, Open or Closed: An Overview of the Current Opinions and Realities of Opening Juvenile Court Dependency/Deprivation Proceedings 2 (November 2000, Revised 2006) available at http://www.childwelfare.net/activities/legislative2006/OpenCourtsMemo20060306.html.

14 Id.

15 Beloof, at 511. See Conn. Const. art. I, § 8; Conn. Gen. Stat. §54-85f (2001); Del. Code. Ann. tit. 11 § 9407 (2005); D.C. Const. § 23-1909(b); Ill. Const. art. I, § 8.1(a)(8); Mass. Gen. Laws Ann. ch. 258B, § 3, pmbl (West 2005); Mass. R. Crim. P. 21; Tex. Const. art. I, § 30(b).

16 Ill. Const. art. I, § 8.1(a)(8).

17 Wis. Stat. Ann § 938.299(1) (West 2004).
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