Victim Found To Be Unavailable To Testify Under Sixth Amendment.

The Sixth Amendment provides that an accused shall have the right to be confronted with witnesses against him. In this criminal case alleging child molestation, a jury deadlocked 10 to 2 in favor of conviction in the first trial. In that first trial, the victim, a kindergartener, testified and was cross-examined, but when the case was set for retrial, the court permitted the prosecutor to read back the boy’s testimony from the first trial instead of having him called again as a witness in the second trial. The trial court made the ruling after a few psychiatrists testified the boy had Asperger’s syndrome, a form of higher-functioning autism, and had been suffering mental trauma as a result of the abuse. The mental health professionals expressed beliefs that bringing the boy back to trial to talk about the abuse again would make things worse. During one therapy session, the boy remained curled up in the fetal position for the entire 45-minutes. The jury convicted defendant in the second trial. On appeal, defendant contended the trial court erred in finding the child was “unavailable” as a witness within the meaning of Evidence Code section 240(a)(3) and permitting his prior testimony to be read to the jury. The appellate court concluded substantial evidence supports the trial court’s decision to find the child unavailable as a witness in the second trial. (The People v. Scott Andrew Christensen (Cal. App. Fourth Dist., Div. 3; September 10, 2014) 229 Cal.App.4th 781, [177 Cal.Rptr.3d 712].)