Wednesday, March 08, 2006

Court properly allowed mother-witness to sit behind testifying child-victim

State v. Billsie, 2006 UT 13.

In a child sex abuse trial, the judge permitted the child-victim to testify with her mother sitting behind her. The mother was also a witness in the trial. Billsie was convicted and claimed on appeal that the court abused its discretion in allowing the mother to remain and to sit behind the child.

In a bizarre 1-1-1 split, the court of appeals affirmed. One judge dissented without opinion. One judge concurred in the result without explanation. And one judge wrote the “majority opinion”—a majority of one.

The supremes granted cert and affirmed. The purpose of the witness exclusion rule is to prevent witnesses from changing their testimony based on the evidence at trial. But under rule 615(1)(c), Utah Rules of Evidence, the trial court may allow a witness to remain in the courtroom if his or her presence is essential to a party’s case.

Billsie made no showing that the mother changed her testimony or that he was otherwise prejudiced by her remaining in the courtroom. So the supreme court held that the trial court properly allowed her to stay.

The court also found no error in allowing the mother to sit behind the daughter. “Children called to testify may have an adult accompany them while on the witness stand.” The victim here was eight when she testified, so the court was well within its discretion to allow the mother to accompany the child. Also, because the mother was behind the child, there was little chance that the mother could influence the daughter’s testimony.


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