Arkansas Rule of Evidence 616 and the Victim's Right to be Present at Trials and Hearings

As revealed by Smith v. State, 2001 WL 1338413 (Ark. App. 2001), Rule 616 of the Arkansas Rule of Evidence provides that

Notwithstanding any provision to the contrary, in any criminal prosecution, the victim of a crime, and in the event that the victim of a crime is a minor child under eighteen (18) years of age, that minor victim's parents, guardian, custodian or other person with custody of the alleged minor victim shall have the right to be present during any hearing, deposition, or trial of the offense.

In Smith, the defendant challenged the application of this rule to allow the victim to attend his suppression hearing and trial. The court disposed of this argument as follows:

Appellant argues that Rule 616 contributes nothing to the judicial process, and that the impact of Rule 616 can taint a criminal defendant's trial by swayed testimony. Appellant points out that the victims were privy to the testimony of the lead detective, Officer Michael Donigan, of the Dumas Police Department, as well as the testimony of the other victims. Appellant argues that this tainted the victims' testimony.

As our supreme court stated in Stephens v. State, 290 Ark. 440, 720 S.W.2d 301 (1986), Rule 616 was added to the Rules of Evidence by Act 462 of 1985, and was adopted in that opinion.... The presence of a victim in the courtroom throughout the trial conceivably could put the fairness of the trial in jeopardy under some circumstances, but that was not the case in Stephens. Nor has Smith succeeded in showing us how fairness was jeopardized at the suppression hearing and at his trial by the presence of the victims. As the State points out, appellant appears to argue that prejudice should be presumed because the taint of the victims' testimony is too subtle to expose. Prejudice is not presumed and we do not reverse absent a showing of prejudice....Thus, we hold that the court did not err in allowing the victims to attend the suppression hearing and the trial.

-CM