The Advocate: Court Reverses Sexual Abuse of a Minor Convictions Based on Presence of Victim Advocate

Federal Rule of Evidence 611(a) provides that

The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:  

(1) make those procedures effective for determining the truth;  

(2) avoid wasting time; and  

(3) protect witnesses from harassment or undue embarrassment.

One interesting question that has arisen under Rule 611(a) is: when can a court allow for a victim advocate to stand near a vulnerable witness while she testifies at trial? The recent opinion of the Supreme Court of the Commonwealth of the Northern Mariana Islands in Commonwealth v. Santos does a good job compiling the varying approaches that different courts have taken, but I don't like the result it reached.

In Santos, Jose I. Santos appealed from his conviction for two counts of Sexual Abuse of a Minor (Doe) in the First Degree. Prior to Santos's trial,

the court held a hearing on the Commonwealth’s motion to allow a victim advocate to accompany Doe. During the hearing, Santos contended a victim advocate was improper without a showing of need. In response, the Commonwealth asserted that the victim advocate was appropriate under NMI Rule of Evidence 611 because Doe was young, and testifying about sexual abuse can be embarrassing. After considering the parties’ arguments, the court granted the Commonwealth’s request for a victim advocate to accompany Doe. 

On appeal, Santos raised two questions regarding this issue: (1) whether there was authority for the accommodation, and (2) what steps, if any, the court must take before granting the accommodation? 

With regard to first question, the court found three sources of authority:

First, the court has inherent power to control the order of the courtroom, which includes allowing a victim advocate to accompany a witness.....Second, the court has statutory authority to station a victim advocate near the witness. See 6 CMC § 1318(f) (permitting the court to "supervise the spatial arrangements of the courtroom and the location, movement, and deportment of all persons in attendance" and to take other procedures as it finds appropriate). Third, court rules authorize the court to station a victim advocate near the witness during testimony. See NMI R. EVID. 611(a).

Regarding the second question, the court surveyed precedent from across the United States and concluded that "there is a common thread running through these decisions: requiring a finding of need." That said, the court then noted some (somewhat minor) differences:

At least one state—Hawaii—requires the prosecution to establish that the presence of victim advocate is a necessity....

Similarly, some states have required the prosecution to show substantial need for the accommodation....

Other states do not require a showing of substantial need and will allow a victim advocate so long as some need is shown.

After surveying this precedent, the court concluded that a judge "must focus on the specific witness’ needs" before allowing a victim advocate to stand near her. According to the court, 

we adopt this requirement because the purpose of the accommodation is to protect that individual rather than some hypothetical witness. Allowing a decision on only generalized, objective factors undermines that objective: a more sensitive witness may lose a necessary accommodation while a less sensitive witness gains an unnecessary protection.

Applying this new test to the case at hand, the court concluded that

The only evidence offered to support th[e trial court's] decision was the Commonwealth’s assertion that the victim was young and the subject matter of her testimony could be embarrassing. Notably absent were any details about Doe that would indicate she had a specific need for an accommodation and confirmation of the court’s finding of need by actually discussing the matter with Doe when she did come to the courtroom. Thus, the court’s finding of need was based solely on generalized factors: age and subject matter. Because the court did not hear or consider evidence on Doe’s particular needs, there was not an adequate basis to justify a finding of need for her accommodation. Therefore, the court abused its discretion by permitting the victim advocate to accompany Doe.

Therefore, the court reversed Santos's convictions. 

I have to say that I'm pretty baffled by the court's conclusion. A victim advocate doesn't feed a witness answers during the witness's testimony; the advocate is merely thought to be a calming presence. I really don't see a problem with allowing a victim advocate to stand near a victim of any crime while she testifies at trial. But if a court is going to be selective, does it really need to be selective in a case involving sexual abuse of a minor? I would think that if there's any case that would allow for a per se finding of need, it would be one involving child molestation.

-CM