Preliminary Hearing

Does A Prosecuting Attorney Need To Call a Child At a Preliminary Hearing, If the Child Has Been a Victim of Child Abuse or Sexual Assault?

INTRODUCTION

No!  In many criminal cases a child is needed to testify.  Fortunately, it is possible to limit the child’s exposure in the courtroom and thereby reduce the trauma of the child victim.  To begin, a child victim does not have to appear or testify at the Preliminary Hearing stage. Unfortunately, there are still jurisdictions, including those on the Front Range, who participate in this unnecessary practice.  Before discussing relevant precedent and alternatives to calling children to testify, it is essential to touch on some key points regarding preliminary hearings:   

“The purpose of a preliminary hearing is to determine if there is probable cause to believe that the defendant committed the crime charged.”  Blevins v. Tihonovich, 728 P.2d 732, at 734. 

“A defendant has no constitutional right to unrestricted confrontation of witnesses and to introduce evidence at a preliminary hearing.  By rule, defendants have the right to a preliminary hearing under certain circumstances, and pursuant to the rule a defendant ‘may cross-examine witnesses against him and may introduce evidence in his own behalf.’”  Rex v. Sullivan, 194 Colo. 568, 575 P.2d 408, at 410.  

“However, the preliminary hearing is not intended to be a mini-trial or to afford the defendant an opportunity to effect discovery.”  Id. at 410. 

“A preliminary hearing judge ‘may temper the rules of evidence in the exercise of sound judicial discretion.’”  Crim. P. 7(h)(3), 7B C.R.S. (1984).

“Moreover, hearsay evidence, and other evidence, which would be incompetent if offered at trial, may well comprise the bulk of the evidence offered at a preliminary hearing.”  Blevins v. Tihonovich, at 734. 

ACTUAL EXPERIENCE

In order to demonstrate how traumatic this unnecessary practice can be on children, Sergeant Jim Gerheart, from the Adams County North Metro Task Force, has offered a revealing story of his own personal experience with his then 3 year old child.  This interview was conducted with Jim Gerheart, on June 24, 2004. 

Jim Gerheart’s son was sexually abused by an adult.  The case was filed with the District Attorney’s Office, and that is when Jim’s nightmare began.  After being tossed back and forth between different police departments, different District Attorney’s offices, and his son being interviewed multiple times, the case was ready for Preliminary Hearing.   

Less than a week before the Preliminary Hearing, Jim received a message from the District Attorney requesting an interview with Jim’s son.  The victim was interviewed once again.  Jim stated that the interview was traumatic to his son, and his son began to regress in therapy and at home.  His son stated that he did not want to testify, but the District Attorney stated that it was necessary for him to.  

At home, a day or two before the Preliminary Hearing, a now four year old victim says that he will testify.  He tells his parents how scared he is, but says he will do it anyway.  The morning of the Preliminary Hearing, the victim would not eat his breakfast.  As soon as the family arrived in the parking lot of the courthouse, a place that the victim has never before been, he begins vomiting.  His parents take him to the Victim Witness’s Office, and the victim will not talk to anyone.  Jim tells the District Attorney that his son can not testify.  The District Attorney agrees to put the victim’s mother and the detective on the stand.  The victim’s therapist is not available because she was never subpoenaed. 

When the parties get into court, the District Attorney dismisses the case.  Jim asks the District Attorney what had happened, stating how many times the child has been interviewed and reported the abuse, as well as how many people have been told about it, and the District Attorney responded that it doesn’t matter what the victim said to everyone else, the Court has to hear it for itself.  As of this date, the case has not been reintroduced. 

None of this had to happen.  The victim in this case was interviewed multiple times, received no victim witness services or trial preparation, and then had his case dismissed because he was too scared and traumatized to testify at the Preliminary Hearing.  This should not have happened.  Fortunately, there are case precedent and practice procedures which can be utilized to avoid a tragedy like this from occurring again.

CASE PRECEDENT

People v. Jensen, 747 P.2d 1247

• Key Point: A child victim does not have to testify when a witness or other person is available to testify as to the victim’s age or story. 
• Procedural Facts: Defendant appealed a jury conviction of one count of sexual assault on a child, arguing error in certain evidentiary rulings and in a jury instruction.  Two children, as well as the victim, witnessed the assault and testified to the incident.  There was additional testimony from the two brothers regarding statements made to them by their sisters, and the brothers’ own observations when they returned with their sisters to the defendant’s property.  The prosecution filed a Motion to Admit Hearsay Testimony, seeking to admit the brothers’ testimony about the statements made to them by their sisters “within minutes” after the assault occurred.
• Holding: The Motion to Admit Hearsay Testimony was granted as to the testimony of the two brothers.
• Application:
• Filing a Motion to Admit Hearsay Testimony is one method which can be used to avoid calling a child victim to testify.

Rex v. Sullivan, 194 Colo.568, 575 P.2d 408

• Key Point: The District Attorney can move to quash the subpoena of a child victim and that is not an abuse of discretion for the court to quash such subpoena. 
• Procedural Facts: The prosecution moved to quash the subpoena served on the alleged victim, claiming that the defense counsel desired the child’s presence only for discovery, harassment and possible impeachment.  Defense counsel responded by stating that his primary purpose in calling the child was to negate probable cause.
• Holding:  Supreme Court held that since defendant was given an opportunity to cross-examine the detective at the preliminary hearing, since defendant was allowed to call and examine other prosecution witnesses, and since trial court had found that the victim’s testimony would be weak or nonexistent with respect to the matters which defendant had indicated he wished to explore at the preliminary hearing, the trial court did not abuse it’s discretion in refusing to require the presence of the seven-year-old victim at the preliminary hearing.
• Application:
• A subpoena requiring the presence of a child victim at a Preliminary Hearing may be quashed, as long as the defendant is given an opportunity to cross-examine witnesses at the preliminary hearing and call and examine other prosecution witnesses.

Blevins v. Tihonovich, 728 P.2d 732

• Key Point: If you do not want to call your best witness, including a child victim, you do not have to!
• Procedural Facts: Defendant appeals the denial of his petition for a writ of habeas corpus.  He claimed that there was a substantial defect in the process afforded him at the preliminary hearing because he was not permitted to cross-examine a witness to the incident.  He also claimed that everything the testifying witness said with regard to the non-testifying witness was hearsay evidence.
• Holding: Supreme Court held that there was probable cause to bind defendant over for prosecution was sufficiently supported by testimony of one of the victims, though the other victim was not called as witness and defendant was not afforded opportunity to examine other victim.
• Application:
• The preliminary hearing is not intended to be a mini-trial or to afford the defendant an opportunity to effect discovery. 
• A defendant has no constitutional right to an unrestricted confrontation of all witnesses. 
• It is not required that the prosecution produces all or even the best witnesses at a preliminary hearing. 

ALTERNATIVE PRACTICES

At the Jefferson County Crimes Against Child’s Unit, it is a rare occasion when a child is required to testify at a Preliminary Hearing.  Every effort is made to not have a child testify at a Preliminary Hearing.

The practices utilized by this Unit are simple.  Steve Gensen, the Chief Deputy District Attorney of this Unit, states that most evidence at a Preliminary Hearing can be hearsay, as long as it’s not exclusively hearsay.  Therefore, the child’s statements can be introduced by someone who interviewed the child regarding the abuse, such as a police officer, detective, or therapist.  In addition to this hearsay, the attorney should introduce corroborative non-hearsay evidence.  Such as a parent or caregiver testifying that this is their child, this is their child’s age, or the defendant did have access to the child.  Additionally, if the suspect made admissions or made statements which are corroborative of the hearsay evidence, this can be introduced as non-hearsay, and assist the prosecution in meeting their burden.