California Penal Code 868.5 - Interpretation

Penal Code section 868.5 provides as follows: "(a) Notwithstanding any other law, a prosecuting witness in a case involving a violation of Section . . . 261 . . . 288, or 288a . . . shall be entitled, for support, to the attendance of up to two persons of his or her own choosing, one of whom may be a witness, at the preliminary hearing and at the trial, . . . during the testimony of the prosecuting witness. Only one of those support persons may accompany the witness to the witness stand, although the other may remain in the courtroom during the witness' testimony. the person or persons so chosen shall not be a person described in Section 1070 of the Evidence Code unless the person or persons are related to the prosecuting witness as a parent, guardian, or sibling and do not make notes during the hearing or proceeding." In People v. Adams (1993) 19 Cal.App.4th 412, the appellate court found that the presence of a witness support person at the stand affects the demeanor element of confrontation. (People v. Adams, supra, 19 Cal.App.4th at pp. 441-442.) The Adams court, relying on the United States Supreme Court's opinion in Coy v. Iowa (1988) 487 U.S. 1012 101 L.Ed.2d 857, found that because an element of confrontation was violated by the presence of the support person, a trial court is required to make a "showing of need" for the support person who is allowed by Penal Code section 868.5. (Adams, at p. 444.) The Adams court also noted that pursuant to Craig, Penal Code section 868.5 furthers a compelling state interest as applied to child victims of sexual assault. (People v. Adams, supra, 19 Cal.App.4th at p. 442.) However, the court noted that no cases have recognized a compelling state interest in protecting adult victims of sexual abuse, thus calling into question, without answering, the constitutionality of the statute as applied to support persons for adult victims. (Ibid.)