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Criminal Defense Attorneys

In DV Case, Can Victim Have Support Person in Court?

As one might quickly recognize, if a jury sees the alleged victim of a domestic violence suspect with a court-approved “support” person, it could seem like the judge finds the victim’s allegations true.  However, Penal Code § 1102.6 provides the right of the victim and persons of his or her choosing to be present during criminal proceedings.

Because of this unfair perception (as well as the jury watching the victim’s reactions to evidence and arguments in court), we recommend a question during voir dire in selecting a jury whether potential jurors can promise to remain impartial and fair despite the victim being allowed such a support person being present and not to assume the judge allowed this because he or she found the victim credible.

Moreover, unless the victim is subpoenaed as a witness, he or she is entitled to be present and seated at all criminal proceedings when the defendant, the prosecuting attorney and the public are entitled to be present.  Penal Code § 1102.6(a), (d); see Evidence Code § 777 (court may exclude nonparty witnesses from testimony of other witnesses).  Penal Code § 1102.6 defines “victim” as the alleged victim of the offense, and one person of the victim’s choosing, although the court may allow more persons depending upon the circumstances surrounding the proceeding.  Penal Code § 1102.6(c)(1).

If the victim is unable to attend the proceeding, two persons designated by the victim may attend in the victim’s place, or more if allowed by the court.  Penal Code § 1102.6(c)(2).  If the victim is no longer alive, two members of the victim’s immediate family may attend the proceeding, or more if permitted by the court.  Penal Code §  1102.6(c)(3).

A victim and his or her support persons may be excluded from a criminal proceeding, but only if all the criteria for exclusion set forth in Penal Code § 1102.6(b) are met.  The burden is on the party seeking to exclude the victim from the proceeding to establish a substantial probability that “overriding interests” will be prejudiced by the victim’s presence.  Penal Code § 1102.6(b)(1). 

We can think of one fundamental “overriding interest” and that is, if the victim is going to offer testimony, to exclude the victim prior to her or his testimony, to ensure such testimony is candid and not influenced by listening to prior arguments in court or prior witnesses and then crafting one’s testimony to rebut, contradict, or support earlier arguments of earlier witnesses.

In addition, the judge must hold a hearing on the motion to exclude and must afford the victim the right to be heard.  Penal Code § 1102.6(b)(4).  The court must consider reasonable alternatives to exclusion and must make specific factual findings supporting exclusion or limiting the victim’s presence at the proceeding (Penal Code § 1102.6(b)(4)).  Any exclusion or limitation must be narrowly tailored to serve the overriding interests identified by the movant.  Penal Code § 1102.6(b)(3).

A similar provision governs the exclusion of victims from juvenile proceedings.  See Welfare & Institutions Code § 676.5.

It should be noted that Penal Code § 1102.6 does not prevent a judge from excluding a victim from a criminal proceeding under Evidence Code § 777, when the victim is subpoenaed as a witness.  However, an order of exclusion must be consistent with the objectives of Penal Code § 1102.6(b), to allow the victim, including the support persons permitted by § 1102.6(c), to be present at all proceedings whenever possible.

The defendant may also ask the judge to exclude a victim and his or her support personnel from a preliminary hearing although Penal Code § 868 generally provides that a preliminary hearing must be open to the public.  It should be noted that if the judge excludes the victim from a preliminary hearing, the judge cannot exclude the victim’s support person, who may stay in court.

Defendant may ask the judge to exclude the victim and / or the victim’s family when exclusion will protect defendant’s right to a fair and impartial trial because information provided by defendant or noticed by the judge establishes that there is a reasonable likelihood that attendance by members of the alleged victim’s family poses a risk of affecting the content of testimony by the victim or another witness.  Penal Code § 868.

We present this article because trials are not supposed to be “audience participated encouraged.”  A trial is not supposed to be a circus, an Oprah show, a Jerry Springer chaos fest or a Geraldo Rivera circus.  Having the victim, a support person and /or the victim’s family present in court can fundamentally change the atmosphere in court to make it unfair for defendant and so defendant must know how to prevent this, or at least attempt to preserve his or her right to a fair and impartial trial.

For more information about attendance at court, please click on the following articles:

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