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Witness Testifying Via Satellite Video Messaging in a Child Sexual Abuse Case

distressed childSexual battery of a child in Fort Lauderdale can carry serious consequences. Sometimes the accused is not apprehended right away, and by the time a trial occurs in Broward County the victim is much older and lives elsewhere. Can a victim be compelled to come from another country to testify in a child sexual battery case? Does a victim testifying by satellite violate the Confrontation Clause? These are all questions a knowledgeable Fort Lauderdale sex crimes attorney can help you answer.

In a recent sexual battery case considering these questions, the defendant appealed a judgment and sentence after being found guilty of sexual battery on a victim under age 12. He argued that the lower court had made a mistake in permitting the victim to testify by satellite.

Although the crimes were reported when they happened, the defendant fled and wasn’t arrested for more than ten years. The victim was an adult by the time there was a trial. Before the trial, the government asked that the victim be able to testify by satellite from where she lived in Australia. She applied for a return visa, but wasn’t approved at the time of the government’s request. She was worried about endangering her job and the financial hardship.

The defendant objected, but the court granted the motion. It determined that there was an important state interest in prosecuting, since what was at issue was molestation of a minor, there was a delayed prosecution, the victim’s testimony was critical, and she couldn’t be compelled to testify. While her financial hardship alone wasn’t enough to permit satellite testimony, the fact that her ability to go back to Australia would be in question was enough to allow the testimony, along with the other factors.

The defendant wasn’t able to depose the victim before trial, but the victim did talk to the defense counsel off-record and before she testified via satellite. However, the defendant’s attorney again objected after she spoke to him off the record, because off the record she’d said she was approved for a return visa after the government had submitted the affidavit and after the motion allowing her to testify via satellite was granted.

The lower court asked the government to inquire as to whether she would voluntarily come to Florida to testify. The victim said she wouldn’t come to Florida because there would be job difficulties and it would be emotionally challenging. Even so, the lower court overruled the defendant’s objection.

The lower court reasoned that there continued to be compelling state interests and it didn’t know of a way to compel a victim who was unwilling to travel to Florida to come. The victim later testified about being sexually molested by the defendant when she was four or five. The defendant again objected. There were two other witnesses who also testified about inappropriate sexual contact by the defendant when they were younger than ten. Witnesses also testified about why the defendant’s arrest was delayed—he’d fled.

The jury found the defendant guilty. The defendant appealed on the grounds that permitting the victim to testify by live-streaming video transmission conducted over satellite denied him his rights under the Sixth Amendment confrontation clause.

Confrontation Clause

The court looked at case law and determined that certain factors should be considered by the lower court when deciding that there should be an exception to a defendant’s constitutional rights under the Confrontation Clause for purposes of satellite live streaming video testimony. An exception might be appropriate where there were state interests, public policies, or necessities. In this situation there were important factors supporting the lower court’s decision, including that the witness lived beyond the court’s subpoena power, state interest in prosecuting child sex offenders, and the victim was critical to the case.

The type of case was relevant in earlier case law, and it was relevant here. Specifically, the appellate court agreed that the prosecution of a child sex offender is the sort of limited case that might justify an exception to a defendant’s constitutional rights. Further the defendant was able to cross-examine the victim during the trial and the jury could see her, and vice-versa. For these and other reasons, the judgment and sentences were affirmed.

Failure to register as a sex offender, or failing to properly update your information as required, is a serious crime that comes with harsh penalties. If there is an incongruence in your information, it could trigger an investigation. If you are charged with a Broward County sex crime, please call the Hoffman Law Firm at (954) 524 4474 or (800) 223-1866, or contact us via our online form.

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