A judge may order closed-circuit testimony for a child witness only after the findings required by Penal Code section 1347. The child must be 13 or younger when the motion is made, and the testimony must concern an offense covered by the statute. Clear and convincing evidence must show a listed impact makes the child unavailable without the procedure, and the equipment must accurately transmit the child’s image and demeanor. Two-way video is the default; one-way video requires a stronger finding and ordinarily 30 days’ written notice. (Penal Code § 1347)
Check age, charge, and the evidence supporting the request
Section 1347 covers a minor 13 or younger at the time of the motion when the testimony concerns an alleged sexual offense committed on or with the child, an alleged violent felony, or specified felony child-abuse offenses where the minor is the victim. The court must find by clear and convincing evidence that one or more statutory factors would make the child unavailable without closed-circuit testimony. Those factors include serious emotional distress from testifying in the defendant’s presence, and specified weapon, injury, threat, or courtroom-conduct circumstances. Age or a child’s refusal to testify alone is not enough. (Penal Code § 1347(b))
For the ordinary procedure, the prosecutor gives written notice at least three days before the preliminary hearing or trial date on which the child is scheduled to testify, unless the court acts on its own motion. If one-way video is requested, the impact must be so substantial that the child would be unavailable even with two-way video. The prosecution ordinarily must give at least 30 days’ written notice of its intent to seek one-way testimony; the court may excuse that period for good cause. Two-way testimony remains the default when the motion is granted. (Penal Code § 1347(b)–(c))
Cross-examination and the record still matter
Closed-circuit testimony is still sworn testimony, and the defendant must be able to see and hear the child. Defense counsel conducts live cross-examination. With two-way video, the child also sees the defendant’s image transmitted live; one-way video removes that image from the child’s view but still allows the defendant to see and hear the witness. The court must explain its reasons on the record, instruct jurors not to draw an inference from the procedure, and preserve a complete video record under a protective order. (Penal Code § 1347(e), (i))
The statute also provides for an out-of-jury hearing. If the judge questions the child in chambers to assess the impact, counsel may submit proposed questions and must have a reasonable opportunity to consult with the defendant before the session ends; counsel does not examine the child during that judicial questioning. The details matter because a motion, a hearing, and the eventual trial testimony are separate stages. (Penal Code § 1347(d))
The Law Offices of David S. Chesley represents people facing California sex-offense charges. Call (800) 755-5174 to discuss a proposed child-witness procedure and the statutory record.