Children questioned as witnesses in criminal court cases would be given additional consideration under a bill discussed by lawmakers Jan. 23 and 25.
Under LB589, introduced by Bellevue Sen. Sue Crawford, no deposition of a child would be granted if a video-recorded forensic interview already has been conducted by an accredited child advocacy center, unless the deposition would aid in the disclosure of evidence vital to a defendant’s case.
Crawford said the bill is the next step in the process to protect victims of sexual abuse, trafficking and molestation, while also preserving the due process rights of the accused.
“A child is more susceptible to traumatic revictimization, especially if a deposition is conducted several months after the forensic interview,” she said. “It is critical we take action to prevent the revictimization of vulnerable children.”
The judge granting the deposition would be required to implement any protective measures to shield the child from harm or distress, harassment or intimidation. Such measures could include designating a specific time and location for the deposition to take place, limiting the scope of the deposition, providing a victim advocate or guardian ad litem, physically excluding the defendant from the deposition or any other reasonable protection for the child.
Children in many cases do not have the same legal representation as adults, said Lincoln Sen. Mike Hilgers in support of the measure. He said the bill would not eliminate a defendant’s right to depose an accuser, but it would make it reasonably more difficult.
“This says we’re not going to take away a defendant’s right to depositions, but we are going to increase the burden,” Hilgers said. “We want to make sure this is narrowly tailored to protect the rights of the child while not unreasonably taking away the rights of the defendant.”
Bellevue Sen. Carol Blood also spoke in support of the bill, saying that child victims must be protected from mental harm in addition to physical harm.
“It is our job as adults to empower and protect the children of Nebraska,” she said. “If we can prevent them from reliving the experience of exploitation and abuse, that is a just purpose.”
The protections set out under LB589 would apply to all minors involved in a case, including witnesses, said Columbus Sen. Paul Schumacher. He agreed with the concept behind the bill, but said the language was too broad and could unfairly limit a prosecutor’s ability to question underage witnesses.
“I would think the law we have now is adequate to protect everyone’s best interests,” Schumacher said. “This bill probably goes too far in limiting the ability to ferret out the truth in those cases where the truth isn’t always obvious.”
Omaha Sen. Justin Wayne agreed, adding that without the right to depose an underage victim, he would lose the leverage to talk some of his clients into taking a plea deal.
“The reason people plea or settle is because often times their attorney will walk them through what a witness might say and they feel they can’t win,” he said. “I wouldn’t have that available to me under this bill unless I go through another burden.”
Several amendments were pending when the Legislature adjourned for the day.