Child Witness • Contemporaneous Alternative Method • 42 Pa.C.S. §5985

Commonwealth v. Williams, PICS Case No. 14-0093 (M.D. Pa. Jan. 21, 2014) McCaffery, J. (19 pages).

The Pennsylvania Superior Court had reversed the trial court’s determination that defendant had the right to present testimony of an expert witness to rebut the commonwealth’s evidence in its motion to allow a child victim to testify at a preliminary hearing by closed-circuit television, pursuant to 42 Pa.C.S. §5985. Supreme court affirmed the order, holding that a §5985 hearing is not intended to become a mini-trial on the general mental health status of the child.

Williams was charged with rape of a child, indecent assault, corruption of minors, endangering the welfare of children and indecent exposure. All these charges stemmed from Williams’ alleged acts toward an eight-year-old child, K.H., in January 2010.

The commonwealth filed a motion pursuant to §5985, alleging that K.H. would be too afraid to testify if Williams were present in the courtroom. The commonwealth called only one witness, Dr. Allison Hill, a licensed psychologist who had been working with K.H. since January 2010. Dr. Hill stated the child would not be able to testify in the presence of Williams. Based on her observations, K.H. had been reluctant to discuss this matter for months, even in a non-threatening situation. Williams sought to have his own expert examine the child.

Even though the trial court found Dr. Hill’s testimony to be extremely credible, it ruled in favor of Williams and ordered the child’s mother to release information to Williams’ expert. The superior court reversed and Williams appealed.

The court held the child victim of sexual assault could constitutionally testify outside the physical presence of the accused, citing Maryland v. Craig, 497 U.S. 836 (1990). Although the preference is for face-to-face confrontation, it is neither absolute nor an indispensable requirement.

Williams argued that a §5985 matter was a critical stage of the criminal proceeding. The court held it was not. Williams’ confrontation clause rights were not violated by precluding him from obtaining access to information about the victim’s medical and psychological history.

Alternatively, Williams asserted a due process right to access information and present expert testimony as to K.H.’s mental health diagnosis and treatment to rebut the commonwealth’s witness at the §5985 hearing, claiming the commonwealth had placed the child’s mental health at issue. The court disagreed. A trial court abuses its discretion if it allows a §5985 hearing to become a wide-ranging, unfocused inquiry into the general mental health of the child. Expert testimony is not required under §5985 to establish “serious emotional distress.”

The preference for face-to-face confrontation must give way to public policy considerations, such as the protection of children. Allowing the child to testify by closed-circuit television still allows full cross-examination, as well as observation of the child witness by judge, jury and defendant.