Monday, February 02, 2009

New Cal Law Allows for Video-Conferencing in Elder Abuse Cases

Among California’s new laws that went into effect on Jan 1 was AB 1158, which allows for the use of two-way video conferencing to examine witnesses who can't come to court. The new law may be a first step in tackling some of the obstacles posed by the 2004 US Supreme Court’s Crawford v. Washington decision, which was a major setback in the prosecution of elder abuse cases (even though the case didn’t involve elder abuse).

Here's the issue. Under the Sixth Amendment to the US Constitution, persons accused of crimes have the right to confront their accusers at trial. It limits the use of “hearsay,” or second-hand accounts made outside of courts, which often take the form of police officers conveying statements made by victims immediately after crimes are committed. These statements are particularly important in domestic violence and elder and child abuse cases because victims often recant their statements, and, under certain circumstances, their immediate responses are considered to be more reliable than those they make later. In elder abuse cases, there's the additional problem of victims not being able to come to court because they're ill, debilitated, or have relocated.

In the 1990s, advocates for victims of domestic violence, child abuse, and elder abuse sponsored laws allowing victims to avoid testifying in court in some situations. These included a 1999 elder abuse law (AB 526), which allowed juries to hear videotaped statements to police from elderly or incapacitated adults who were unable to come to court.

The Crawford case involved Michael Crawford, who was convicted of stabbing a man he believed had tried to rape his wife. The Supreme Court barred the tape-recorded, eyewitness account of the stabbing by Crawford’s wife, ruling that “testimonial statements” made out of court cannot be used at trial unless the person who made the statement is available for cross-examination. Statements are considered “testimonial” if they are knowingly made to law enforcement or government agents associated with law enforcement and provide evidence for later use in court. The court did not define the various types of testimonial statements that are covered, and subsequent cases are putting the definition to the test.

Still, the decision has had tremendous impact. It's restricted the use of evidence that was previously admissible and has been used to overturn convictions under child abuse and domestic violence laws. A state appeals court in San Jose used it to overturn California’s 1999 videotaping law.

Two-way video conferencing allows for victims who can't come to court to testify while protecting the rights of the accused to confront them. However, the use of "virtual confrontation" has been challenged in other settings, and it remains to be seen how it will be used in elder abuse cases. AB 1158 was sponsored by the San Francisco District Attorney and supported by the California District Attorneys Association, the California Senior Legislature, and the California Alliance for Retired Americans.