Vermont Legislature SmartTranscripts:

[Rep. Martin LaLonde (Chair)]: All right, welcome back to the House Judiciary Committee this Thursday afternoon, January fifteenth, and we're gonna turn our attention to H5 for some additional testimony. And we're gonna start on Zoom with Sheriff Jennifer Harlow. Thank you for being here, and if you can unmute yourself and identify yourself for the record and proceed.

[Sheriff Jennifer Harlow (Orleans County)]: Thank you, Mr. Karen. My name is Jennifer Harlow. I'm the Sheriff of Army's County and I'm also So, thank you for allowing me to come and speak about me today. Really appreciate it. Sorry, I'm not there in person but this bill is very important. The association supports this bill as we've heard through the state's strains and tariffs trying to advance. It's one of their top 10 priorities this year. So thank you for listening to them. A little background. I've

[Rep. Karen Dolan (Member)]: been

[Sheriff Jennifer Harlow (Orleans County)]: in law enforcement for going on thirty years now and for over ten years, probably a little bit longer here and there, still going to cases. Investigated, I was assigned to a scheduled investigation to investigate sex crimes against our children. It was part of the internet crimes against children. So I've been doing this for a long time and it's a huge passion of mine. In regards to the bill that you guys have going forward, it's again, very supportive of it. I think raising the need to be very beneficial. As you all have heard, and I'm sure you all are aware, these crimes are very egregious and it takes a tremendous amount of courage for these young people to come forward and dispose what has happened to them. And when they first disclosed, you know, they usually hope or they're doing it to someone they trust. So, and often they have to disclose on several different occasions. So, being able to have those individuals come and testify and explain to them what that person has disclosed to them is huge. That support is really tremendous.

[Unidentified Committee Member]: So

[Sheriff Jennifer Harlow (Orleans County)]: go ahead, sorry, Karen.

[Rep. Martin LaLonde (Chair)]: No, go ahead. Go ahead.

[Sheriff Jennifer Harlow (Orleans County)]: So that was, I mean, I just really wanted to impress on you that this bill I feel is really important. I feel like the room really also represents that as well. Especially when we're getting to our teenage years, young people, it has changed a lot over the years. There's so much for them to worry about and their concerns about, their peers, and just having extra support throughout that proceeding. I can't tell you how important it is to them. So again, it's not taking away the right for anyone to, for them not to testify or anything, it's just giving them that extra support, which is great when they've been during the tough times for them.

[Rep. Martin LaLonde (Chair)]: Great, so any questions for Sheriff Harwell? I'm not seeing any questions right now. No, I really appreciate perspective from law enforcement and perspective in your past work with this. So I really do appreciate that and thank you for being available this afternoon.

[Sheriff Jennifer Harlow (Orleans County)]: Thank you very much. I hope you all have a great day.

[Rep. Martin LaLonde (Chair)]: Alright. Thank you. Okay. We'll go to Kate Lampson from the Defender General's Office, who's also on Zoom. If you could identify yourself for the record and proceed. Thank you for being here.

[Kate Lampson (Public Defender, Bennington County)]: Good afternoon, mister chair. My name is Kate Lampson. I am a public defender in Bennington County. Thank you for letting me testify remotely as well from the Banana Belt down here. Quite a drive. I've been a public defender for over a decade now. And before that, I worked at the Bennington County State's Attorney's Office for a few years. And I respectfully oppose the bill, for several reasons. The first of which is that I don't think as drafted that it meaningfully protects the age group that it is looking to protect. The second is because I believe that the bill is inconsistent with other age requirements within Vermont's laws. An example of that is the requirement that in sexual assault cases of somebody under the age of 16, that that person is not allowed to be deposed, in a criminal proceeding. And also, of course, the fact that somebody could potentially be charged either in delinquency or adult court, for a sexual assault in that same age range. And the third reason is because I think that it does chip away at one of our laws' foundational requirements, which is the right, to confront your accuser. And so I'm just gonna talk just briefly about those three points. I certainly appreciate sheriff Harlow's comments. And that's act it's very interesting because I never thought about it from the perspective of, support, meaning that the that the child witness that would be testifying would, would feel more supported in the court case because there was people testifying about what they had said, at different occasions. So I really that's interesting for me and certainly something to think about. But, the the problem, I think, with that is that, you know, it as you know, because within the bill, we've got the section that says that that they have to be available to testify in court under rule eight zero seven. And how the courts haven't interpreted being available under eight zero seven in Vermont is that they actually the child has to be physically present at court to testify under oath under cross examination. So what we typically see happen is that, these statements would be introduced by, you know, like, sheriff Harlow said, trusted friends, family members, perhaps, you know, counselors or therapists that the child had disclosed to. Those folks would testify to what the child had said. And then the child themselves, most of the time, is still required to take the stand and be cross examined. And, of course, that cross examination is going to include all of the surrounding circumstances for those first disclosures because, you know, it's a consistent statement, so the defense attorney is gonna wanna, you know, try to poke holes in that as much as possible. What that results in is a longer cross examination for that child than what would normally be part of of a good defense. So the only way under eight zero seven. Right? So the child has to be available, and there's those certain exceptions within that rule. And the exceptions would make it so that the child could testify via closed circuit, right, television or via recorded testimony. But we have very recent Vermont case law where our Vermont Supreme Court has interpreted that, and they have actually set a pretty high standard for any child to be able to testify that way. And that standard is that the child witness would have to be traumatized, not by the courtroom in general, right, not just sort of the same way that anybody that gets up in front of a group of people and talks could be traumatized. But by the presence of the defendant specifically, that showing has to be made. And then it also has to be shown that the witness would suffer more than mere nervousness or excitement or reluctance to testify. And then it also has to be shown that all of this would impair the child's ability to communicate. So, you know, what we saw in state v Sylvester, which is where I'm getting this language from, is that the Vermont Supreme Court overturned a conviction and sent the court sent the case back for a new trial, finding that there was not enough evidence to support to support that. So I don't again, I just don't think that that this meaningfully protects that age group. Because unless you can make that showing, which is obviously gonna be more difficult for 12 to 16 year olds than it would be for children that were younger than that, then they're gonna end up testifying anyway and potentially testifying for longer. The the other reason is that the bill

[Rep. Martin LaLonde (Chair)]: Before you, yeah, before you move on, I have a question on that point first. Go ahead, Karen.

[Rep. Karen Dolan (Member)]: Yes. Thank you for being here. Apologize. I feel like I'm I'm not following that, and I want to understand that piece of it because, obviously, protecting child is is important. So if you can maybe summarize it again of how you feel because what I think you're saying is this proposed law might be doing opposite of what we're hoping for. Is that

[Kate Lampson (Public Defender, Bennington County)]: No. That's right. Because, again, I think that it could potentially I think that it does make cross examination longer. And the reason for that is this. My belief based on my experience and talking with colleagues and the like is that most of the time when these hearsay statements come in so assuming if the law wasn't changed, most of the time when hearsay statements come in for children that are 12 and under come in to evidence. Right? Like sheriff Harlow said, they come in through trusted friends and family members or other people that get up on the stand and say, you know, after school one day, you know, little Tommy, you know, confided in me that this has been going on at home. But within the law right now and the law as it's proposed is a provision that says, okay. Even if we're gonna let that those hearsay statements into evidence, that child still has to be available to testify in court. And the way that the Vermont Supreme Court and a lot of federal courts have interpreted that word, right, being available is that they actually have to be physically present at court, and they have to be available for cross examination under oath by, you know, me or whoever the other defense attorney is. When a child's statements have come in, let's say, through a a counselor, instead of just asking the child about the instances of abuse that they're claiming happened, I also have to ask them, how do you know this counselor? You know, potentially get into the areas of why do you trust them? You know, all of those other things have to be delved into because, obviously, it's good for the state. Right? It's good for the state to be able to show this child isn't just telling you this now. This child also told these other folks, and that makes it more reliable. Okay. So that's how

[Rep. Karen Dolan (Member)]: So Yes. And if I can just clarify that I'm understanding it, that this opens up that there's more that could be discussed or examined in testimony with the child. And I think on the other side, though, it is allowing the hearsay pieces. So it seems like it would be a case by case where would all the parties want to see it? So I I hear your perspective of it, and I now can put it in the bigger picture. So thank you.

[Sheriff Jennifer Harlow (Orleans County)]: Yes. Yes.

[Kate Lampson (Public Defender, Bennington County)]: And, you know, just moving on to to my second point that, you know, we charge we charge kids, you know, at 15 or 16 year olds, sometimes even in adult court with sexual assault. And we also have a rule, in Vermont Rules of Criminal Procedure that says that defense attorneys are not allowed to depose people that are under the age of 16 who are witnesses in cases like these, the same class of cases, sexual assaults and the like. And recently, I think the legislature also, either last year or the year before, expanded that to include children who were the subject of cruelty to a child's charges with serious bodily injury. So to me, that seems inconsistent that we would, you know, at the same time, say this class of kids from 12 to 16 is so vulnerable that it is okay for us to introduce their unsworn testimony in a criminal case. But we also have to protect the you know, that that testimony should come in, but also, we're not allowed to depose them, which, of course, makes it more difficult to know what they're going to say. So it's a shifting. Again, there's no doubt about it that the bill as proposed, I think, would make it easier for the state to prove these cases. But it does so, again, without meaningfully protecting that class of kids because they're still gonna be subject to having to be available in court. And a little bit more on that point is that I also think, and perhaps I am misstating, excuse me, I've got those automatic life, These cases are not they're not particularly easy for the state to to try and sometimes for the state to win. It is in my experience and what I have seen, prosecutors generally want to call these witnesses anyway. You know, these hearsay statements come in via this rule, which is sort of prejudicial to the defense, but then the child testifies anyway. So they're not they're not protected, but the state still gets this big advantage. And that brings me to my third point, which is the balancing that the law has to make between the confrontation clause and certainly legitimate state interests in protecting vulnerable people, and certainly children who are involved in cases with this classification of charges are are vulnerable. But to balance that, to make to make it worth chipping away at one of our foundational constitutional rights. The result of that should be real concrete enhanced protections for this class after showing that this class needs that type of protection rather than passing this as it stands. So that's all I have, unless anybody has questions, which I'm happy to answer.

[Rep. Martin LaLonde (Chair)]: I'm looking around. Ian, just one.

[Rep. Ian Goodnow (Member)]: You give us a site for that case?

[Kate Lampson (Public Defender, Bennington County)]: For Steve v. Sylvester? Sure.

[Unidentified Committee Member]: Oh, great.

[Kate Lampson (Public Defender, Bennington County)]: Yeah. It is twenty twenty five Westlaw three six eight four four three seven. And it's a 2025 case. It's a very it's a very recent decision.

[Unidentified Committee Member]: Yeah. Okay. Great. Thank you. So

[Rep. Martin LaLonde (Chair)]: I'm not sure, I thought you said it chips away at a fundamental right of confrontation. I don't know if I really caught that in your further explanation.

[Kate Lampson (Public Defender, Bennington County)]: So, you know, the the idea behind the confrontation clause is that anytime somebody is going to accuse you of something, they should have to do it to your face. And that's the reason why defense attorneys love love it so much, this idea that because it's rooted in common sense that we all know. Right? It's a lot harder to lie to somebody's face than it is or excuse me. It's a lot hard yeah. It's a lot harder to lie to somebody's face than it is, you know, behind closed doors or certainly, as we know from current events, behind a computer or a keyboard. So the confrontation clause is it is part of our Vermont constitution under chapter one, article 10, and it says that we have the right to confront any accuser against us. So when we allow these hearsay statements in through other people that are not the accuser, right, which in this case would be the child witness, we're allowing those statements in without any confrontation because the child witness isn't there to confront and you know, in the same instance. And that that's a that's a big deal, because it is such a fundamental right. And, again, I think that if we're going to if we're going to chip away at that by allowing an even larger classification of children to have those hearsay statements be admitted, then there should be some showing that, you know, that it's necessary, but or that it is going to result in real meaningful protections for that class rather than those hearsay statements coming in and then the child having to testify anyway. Does that make sense?

[Rep. Martin LaLonde (Chair)]: Only kind of except that you have the right under this under this law to confront the witness. So, I mean, you and and it sounds like you have the opportunity to confront the witness not just about the statements of whatever happened, but the relationship with whoever is offering the hearsay. So that's why I wasn't

[Kate Lampson (Public Defender, Bennington County)]: I hear you. I I do. I hear you. I guess it's a nuance. You know, the confrontation clause protects against any hearsay statements. Right? So that's why that's why the hearsay laws exist is because you're not you know, we can't have people just be tried on something that somebody said to somebody else. Right? So presumably, right? Like I said, in most of these cases, a judge would say, this child witness has to be made available. But there is a provision under eight zero seven that allows for the child to either testify via closed circuit television or via recorded statement where the defendant may or may not be present via order of the court. So it is possible under the proposed rule change that those hearsay statements would come in through counselor, trusted family friend, whomever, and then the defendant would not be able to sit in front of the witness who actually said those things and be confronted by them.

[Rep. Martin LaLonde (Chair)]: Except that I thought that that rule eight zero seven applies to 12 and under, and so it's already current law that that hearsay can come in. So for the 13, 14, 15 year olds, there would be that right of confrontation in court. I believe.

[Kate Lampson (Public Defender, Bennington County)]: You know, you're right. No, you're right. It is 12 and under eight zero seven.

[Rep. Martin LaLonde (Chair)]: Yeah. There's the confrontation. I understand your other two points. I just wasn't quite getting confrontation point. So just a question. If you had this is asking you how you practice on this, and I have a couple other people who want to ask questions. But if you had somebody who was providing like four or five people that this person gave a statement, you know, the out of court statement, would you argue that that's cumulative evidence? I mean, this is not a hypothetical that you

[Kate Lampson (Public Defender, Bennington County)]: No, I certainly would.

[Rep. Martin LaLonde (Chair)]: I mean, okay. Because that was one of the concerns that was raised in some earlier testimony that you have this out of court statements to several people, but it seems to me that that pretty quickly could become cumulative and and and not something that would be around, but that whatever. So I have Tom and then and then Karen have questions, and then Ian.

[Unidentified Committee Member]: Thank you, chair. I was

[Rep. Thomas Burditt (Vice Chair)]: I was just gonna simply your point of view on video evidence, what your opinion would be live or recorded.

[Kate Lampson (Public Defender, Bennington County)]: I don't think yeah. I I don't think it's as effective. And I think that prosecutors know that. And so, you know, they're not likely to make those proposals unless they think that it's necessary. I've only seen it done a couple of times. And the couple of times that I saw it done, the child witness was actually at court, and then the closed circuit system was set up in a conference room outside of the court. So, you know, I I don't not being a child psychologist, I don't know, you know, how much that how much that protects the kids. If that if that really is a help or not, I don't know.

[Rep. Thomas Burditt (Vice Chair)]: From your point of view, a live hearing is really the only way to have any kind of hearing, or do you do participate in video hearings now?

[Kate Lampson (Public Defender, Bennington County)]: I do participate in video hearings now. Not when if I have any opportunity to be side by side in my client with my client in court, that's how it goes. But yes, sometimes, for example, with regional arraignments right now, I represent people at arraignment over the computer where I'll be standing in court, and they'll be at one of the jails. And I don't think that that is as effective.

[Unidentified Committee Member]: Thank you.

[Rep. Martin LaLonde (Chair)]: I think Karen is still being said. Great.

[Rep. Ian Goodnow (Member)]: Yeah, I just had one question. So one of the things that we've talked about, and also thank you very much for being here to testify. It's really helpful to hear from practitioners. Some things that we were talking about is kind of the safeguards that are in 804A that we're not really touching really that you have to satisfy these different problems to actually be able to get this hearsay evidence in four 12 year olds currently. I'm kind of curious from your perspective in the cases that you've done where the state has tried to move in hearsay evidence like this, how rigorous the process is in going through those four different factors and determining whether that hearsay is actually going to be admissible or not?

[Kate Lampson (Public Defender, Bennington County)]: Pretty rigorous. Okay. And I say that from my experience of you know, I don't have an an experience with with a very young child. So that being that may be different. But but I have I think that judges are as careful as they can be because they know that there are constitutional issues at play when making the determination. So I I don't think that it is lopsided in that way. I think that the courts do a good job of trying to trying to balance the interests.

[Unidentified Committee Member]: Yeah. Okay. Thank you.

[Rep. Martin LaLonde (Chair)]: Any other questions for Kate? Don't say thank you very much for being available, I really appreciate your testimony.

[Jennifer Pullman (Director, Vermont Center for Crime Victim Services)]: Thank you.

[Kate Lampson (Public Defender, Bennington County)]: Is it okay if I stay on and watch

[Sheriff Jennifer Harlow (Orleans County)]: the rest?

[Rep. Martin LaLonde (Chair)]: Absolutely, absolutely. We may have further questions for you that come up. We never know. I appreciate it. So we're going to find my list here and go with Samantha Prince, if you could identify yourself for the record after you unmute yourself and proceed with your testimony. Thank you also for being here.

[Samantha Prince (Director of Outreach and Advocacy, Vermont Children's Alliance; Forensic Interviewer)]: Yeah, thanks so much for having me. I appreciate it. So my name is Samantha Prince, and I am the director of outreach and advocacy for the Vermont Children's Alliance, which is the state chapter that supports all of Vermont's child advocacy centers. Just in case anyone doesn't have the familiarity with child advocacy centers, the purpose of all of our child advocacy centers, which I'm going to refer to as CACs, if that's okay, is to offer a safe neutral space for children and adults to come and have a forensic interview done regarding whatever the allegation of their abuse is, and by doing so they are in a singular room. The CACs are all neutral and set up, designed to be a comfortable trauma informed sort of spot, so it's not the DCF office, it's not the police barracks, it's supportive in and of itself as an entity. While the child is interviewed, law enforcement and or DCF are able to observe that interview, but the interview itself is taken from the perspective of learning everything the child has to offer that they're able to recall and able to share regarding their allegation of abuse. During that forensic interview, the child is asked to describe their understanding of truth and lie, and they're able to agree or promise to tell the truth during their interview. Sometimes after the interview, an officer or detective rather may ask them to swear that everything they've talked about has been the truth, depending on their age and understanding, and obviously their parents' presence for that. So the Vermont Children's Alliance has set submitted a letter for your review, much like many of our stakeholders offering our support of this bill, because this bill will bring Vermont bypassing this, Vermont will be able to be current with with regard to the research that already exists, that this is the developmentally appropriate thing to do for children. Several other states, you probably hopefully know this already, have passed a 16 as the hearsay exception law. So the majority of American states have some sort of exception, hearsay exception for children, and several of those also have it as 16 and 16 and under. So Vermont would become current with other states bypassing this as well. In addition to that, the forensic interview is designed to be trauma informed. And by doing that, it offers children an avenue where they can present information in a protected manner. So there isn't an opportunity for the child to say something that is not of their own words because it is a slow and gentle process, the forensic interview. So they're able to really reflect and recall whatever they're able to remember in a way that is conducive to their thinking and speaking patterns. So some kids, for example, don't recall memories in a linear pattern, which is totally okay. The forensic interview can adapt to that. Whereas in court, those things can be challenged. The ability to recall information and how children present information can be challenged. And children are very, very susceptible, very, very vulnerable to those types of intrusions and questions because their brains are trying to recall in the best of their ability. But in the courtroom, the questions aren't tailored to help them do that. So it can be very, very challenging in that setting. So having protections for them to be able to present their testimony if needed with protection, whether that's closed circuit or by another means and offering these pieces of evidence to be able to be submitted as hearsay is fundamental to what is in the child's best interest.

[Rep. Martin LaLonde (Chair)]: Questions for Samantha? I don't see anything. I think it was pretty straightforward. I appreciate your testimony.

[Samantha Prince (Director of Outreach and Advocacy, Vermont Children's Alliance; Forensic Interviewer)]: Yeah, thanks so

[Rep. Karen Dolan (Member)]: much for your time.

[Unidentified Committee Member]: Thank you.

[Rep. Martin LaLonde (Chair)]: Alright. We'll go to Kelly Woodward, who's on Zoom as well. Nice to see you again, Kelly. Thank you. Appreciate you being here.

[Kelly Woodward (Victim Advocate, Northwest Unit for Special Investigations; retired Franklin County SAO)]: Thank you. And thank you for inviting me to testify and allowing me to do it virtually. I appreciate that being stuck way up here in Franklin County. By way of introduction, I'm Kelly Woodward. I retired in July from the Franklin County State's Attorney's Office where I was the victim advocate for thirty years. I'm currently in a position as the victim advocate at the Northwest Unit for Special Investigations. I know you guys have heard a lot of testimony, and I appreciate everyone who's testified ahead of me. And I will keep my remarks brief and hopefully pointed in the direction of how this will benefit actual victims, who are child victims of sexual assault. You've heard and you're gonna hear again, these cases are really hard. They're really hard to bring to prosecution. They're really hard to, prevail at a prosecution, and they come with their own set of problems. Right? We get delayed reporting. We get no physical evidence. We get that the only witness is the child who was present during the abuse. So,

[Sheriff Jennifer Harlow (Orleans County)]: there's a

[Kelly Woodward (Victim Advocate, Northwest Unit for Special Investigations; retired Franklin County SAO)]: lot of difficulties with these. Especially with this age group of teens, I get a lot of these kids who say, I can't go forward. I won't go forward. You can't make me. Why do they say that? A variety of reasons. Fear, anxiety, trauma, embarrassment, shame. What I hear over and over from these older teens is, why do I have to do it myself? Who else is on my side? Who else is going to go in the courtroom with me? And I think this bill, particularly to these teens, offers that bit of cooperation that the state's attorney can offer that helps them not be so alone. You know, if you take a scenario where abuse occurs, a teen tells their friend, maybe they tell their grandma, they don't want it to go any further, they tell them don't tell anybody, and then years go by or a period of time goes by and now they're disclosing again maybe to someone who's a mandated reporter, or they're just tired of carrying the weight and they disclose. Those previous statements can come in and that can corroborate what they're testifying to today.

[Samantha Prince (Director of Outreach and Advocacy, Vermont Children's Alliance; Forensic Interviewer)]: So I think that really

[Kelly Woodward (Victim Advocate, Northwest Unit for Special Investigations; retired Franklin County SAO)]: empowers victims. It helps deal with that fear and the isolation and the feeling of why am I carrying the whole weight of the case on me? Why can't somebody help? And I think that's what this bill does. And having just listened to Ms. Lampson, I agree that it's probably not protecting child victims from having to testify or having to be cross examined, but it gives them some additional support so they feel more comfortable, they feel corroborated, and it helps the jury too. If you just listen to a child say, this happened to me and three years ago I told my grandma. Okay, but now you also get to hear grandma say, she told me that three years ago. It adds that credibility and adds some cooperation for that, teen victim. And and I think to a lot of defenses to in trial are based on teen conflict, right? She only told because she had a fight with that kid, or she only told about her stepdad because he set a new rule and she didn't like it. If you have a disclosure made in the past, it kind of evens out that. It's not so effective as a defense strategy if a child's already said previously that this happened. And yes, the fight or the disagreement they've had at the time of of a disclosure to authorities might be because they've had a fight. Did I say that right? Anyway, but we know the truthfulness of their statement is going to be shown because they previously disclosed it. So I think that that helps and it helps teens. The other thing I hear a lot and I hear it a lot in the public and I hear it everywhere is our teens are so much more mature now. They're so grown up. Well, I take a real offense to that. I think our teens are more vulnerable now than they've ever been. They, you know, these are the kids that lived through COVID. Right? These are the kids that lived through COVID. They were isolated. They didn't have peer to peer interaction. They were lonely. And they missed out on that whole section of development that you get when you engage with people face to face. Those are the teens that we're talking about. These are also the teens who rely on social media for everything. And they are bombarded day after day, all day long with mixed messages around sex and sexuality, what you're supposed to look like, what you're supposed to sound like, what you're supposed to do, how you're supposed to dress. You know, it takes away the individuality of children, and it's very confusing. And it all leads to making them more vulnerable and more likely to be abused, and also more likely to not be able to testify, in court. And I say this because I see it more and more often. Our forensic interviewers are great. And you heard Sam Prince talk about, you know, the goal of a forensic interview is to get the information and not to judge what you're getting. But now we're asking our forensic interviews to interview kids whose most comfortable language is not speaking face to face, their most comfortable language is texting. And that that creates a new challenge for us. And the forensic interviews that are done with older teens are the same exact forensic interviewers that we do with our younger teens or even our younger children. Again, you heard Sam Prince talk about the goal of that forensic interview is to get to the truth. So, you have that same truthfulness or the same goal of truthfulness no matter the age of the child. So, you have it with your older teens as well as the younger teens. And again, there's a lot of protections still in this bill for defendants. And again, I want to say that I don't think that this bill, the goal of this bill, the only goal of this bill, is to prevent children from having to testify. What I see it doing is providing additional support and cooperation when they do testify. Anyway, I ask you to please support teen victims and pass this bill. Thank you.

[Rep. Martin LaLonde (Chair)]: Thank you. Questions for Kelly? Yeah. Tom, thanks.

[Rep. Thomas Burditt (Vice Chair)]: I couldn't let you get away without a question. The one thing I've been speculating about since we started taking testimony on this is that the small slice of time there is between 12 and 16 years old, and the variability of maturity that can be in there. You can have a 13 year old be very mature, maybe beyond the sequencing. 17 year old, or, you know, I'm 58 and I'm 16. Can speculate on that a little bit? Do you have any information?

[Kelly Woodward (Victim Advocate, Northwest Unit for Special Investigations; retired Franklin County SAO)]: I mean, I don't. I have anecdotal information only in that. I think maturity, I mean, I can have a nine year old come in here who acts more mature and seems to be more able to handle stress than some 16 year olds. Know, it's such a small slice of age difference. Don't think we can say that a 16 year old is automatically more mature or more able to handle stress than a 12 year old.

[Unidentified Committee Member]: Thank you.

[Rep. Martin LaLonde (Chair)]: Questions? So I have a question, I'm not sure it's for you, but your testimony kind of brought this up. But I think I'll ask you and maybe other people wanna weigh in on. So I'm feeling there's two reasons to have this. And they're maybe interrelated, and I think you've kind of talked about them as interrelated. And that's the corroboration of the testimony of the child and the protecting of the child. And it seems like the corroboration, like just separately, I could understand a prosecutor or somebody who wants to convict individuals who are alleged to have committed these crimes, that that is a benefit on the scale for them, the collaboration. But that's kind of unfair to the defendant, having that hearsay for cooperation. So how much is that really also benefiting the child? And I think you had testimony more than anybody else that really kind of tied those two things together. But could expand on that a little bit further? Because that's really the bottom line in my view that we're weighing is obviously the fairness to the defendant and also trying to get the case right, but also protect the child as much as we can or help the child?

[Kelly Woodward (Victim Advocate, Northwest Unit for Special Investigations; retired Franklin County SAO)]: So first of all, I think that any witness that's brought in is subject to cross examination by a defense attorney. So I think that takes away any benefit that the state may have over a defendant. They have equal access to that witness. The way that I see it benefiting or helping a child is the child's not alone anymore. And I can't tell you the number of times I've heard kids say, yeah, but who's on my side? Who's gonna who's gonna help me? And that when kids go into a trial and there's not eight zero four a exception, they're sometimes the only fact witness we have to testify. That's it. That's the state's testimony. That is so isolating for kids. That is so scary. It put so much pressure on them that some kids just can't do it. They just can't go it alone. But if we say, you know what, you told your grandma about this three years ago, and she's going to be able to come in and talk about what you said. Even if it doesn't help the case, it helps that child. They're not so isolated. They're not so afraid. There's somebody on their side. Do you know how powerful that is? That somebody's sticking up for you? That's the benefit that I see for victims in this bill.

[Rep. Martin LaLonde (Chair)]: I see. Thank you for that. Samantha, did you wanna weigh in on that? I saw you show up for a moment, and that was the signal that maybe you wanted to weigh in on that question.

[Samantha Prince (Director of Outreach and Advocacy, Vermont Children's Alliance; Forensic Interviewer)]: I did. I couldn't figure out how to raise my Zoom hand, so I apologize. Thank you so much.

[Rep. Martin LaLonde (Chair)]: No, no, worked.

[Samantha Prince (Director of Outreach and Advocacy, Vermont Children's Alliance; Forensic Interviewer)]: I just wanted to echo what Kelly is saying. That's something I So I explain that I work for Vermont Children's Alliance and I speak on behalf of all the child advocacy centers when I speak with you today. But in addition to that job, I also am a forensic interviewer and an executive director of one of the child advocacy centers here in Vermont. And I wanted to just echo what Kelly is saying because it fundamentally is so, so, so important. And that's that it is so hard to testify in court. I know Ms. Lambson mentioned beyond a bit of nervousness, but the vulnerability of these children and the pressure and the stress that they feel is sometimes insurmountable for them. I oftentimes have kids that will tell us that they don't wanna go forward if they have to testify in court because it will be too overwhelming and too traumatizing for them. They feel like the judicial process isn't gonna be fair to them. You have to recognize that these kids see stuff nationwide, and so they see other kids going through these experiences and they see them complaining like this is how I got treated in court. Why would I even move forward? Like the court system isn't designed to be supportive of victims. And then here in Vermont, see support for people that are committing crimes and including the race, the age conversations that we've been having, where we're trying to protect potential offenders from their own brain development not being complete and what punishment looks like for them and how their treatment looks. And then when it comes to this bill, having the conversation about increasing the age to protect children during the court process to 16. Like a no brainer. And so I'd really just wanted to Echo that because this week in Wyndham County, we have an adult victim who has been testifying. About some very, very egregious sexual abuse that she endured for several years. And the way that the court process has been for her has moved the detective to tears. He has found himself. Sitting in court to support her. Because there isn't anybody else there. And that's

[Sheriff Jennifer Harlow (Orleans County)]: a that's a that's

[Samantha Prince (Director of Outreach and Advocacy, Vermont Children's Alliance; Forensic Interviewer)]: a young adult that I'm talking about. And I just want the house to consider that, this committee to consider that the weight that we're asking these children to carry is unfair. It developmentally and psychologically is literally beyond their ability and what's good for them. And the research and science supports that. So I just wanted to echo that, that's very important.

[Rep. Martin LaLonde (Chair)]: No, I appreciate that. Thank you very much.

[Unidentified Committee Member]: Thank you.

[Sheriff Jennifer Harlow (Orleans County)]: Yes, thank you.

[Rep. Martin LaLonde (Chair)]: Anything else for Kelly? I don't see any. So thank you very much for being here, Kelly. And we'll go to Laura Beyerle next. Nice to see you again, and thank you for traveling on down from Chittenden County to to join us. Thank you for having me. Good afternoon.

[Laura Byerly (Director, Victims' Rights Project, Vermont Legal Aid)]: By way of introduction, my name is Laura Byerly. I'm currently the director of the Victims' Rights Project in Vermont Legal Aid. I've been exclusively representing victims for the past nine years, and it's been part of my practice for the past nineteen. And I wanted to come here to give you the perspective of the child witness's attorney. I represent children who are in these cases. I've gone through those 804A hearings with them. I have sat next to them during the entire trial, and I do my best to represent what they are looking for, what they want this process to be. And I hear them, and they are telling me, why is this all my job? They think that it's their job to prove this case. They think it's their responsibility and that they are carrying this burden. And this bill helps ease that burden just a tiny bit. It's not even a huge, change, really. It's a small change, and it allows, it allows, as Kelly and Sam Prince have both said, it just lets the child know that they are not alone. They are not the only person coming in. They are not somebody else is willing to say, I believe you. These are hard cases. These are hard cases from an adult who does these every day and is starting to get a little cynical, frankly. But think about this from a child's perspective. In our courts, these cases take, ideally, a misdemeanor takes six months, a felony is supposed to take a year, reality, felonies are taking two to three. I have some that are on the five to six range. And we're talking about child victims. In an adult's life, a two year time period is a long time. It's really hard to be stuck in that trauma and to have to remember it by every little detail or else everybody says you're one. I mean, that's a really hard place for an adult to be. Imagine how that is when you are a child and you have to basically always say exactly the same things that you said to the police two years ago, three years ago. I mean, their entire world has changed in those two years. They have new teachers. They have new schools. Sometimes they have new families due to this situation. And this just helps by saying, we're going to bring in the other people as well that you talk to that are going to be able to say, you know, this is what they said at that time. Because the snapshot of what happened to this child is never going to be clearer than when we can talk about what was going on at that time and giving that information. I've had children come to me and say, you know, I told you what happened, but why is he still here? Why is he still in my neighborhood, that person who molested me? Why haven't you done anything about it? And it's not that we're not doing anything about it, but it takes some time, and it takes an awful lot of time in a child's life. And this just provides one small piece of support to say, you don't have to go alone. And I have worked with Kelly, and I have gotten some referrals from her as well, or I should say Ms. Burditt, sorry, Kevin. And we have been side by side with children going through this process. And over and over again, they want to know why they have to be alone. And I think this is a really good tool. But let's think about that process a little bit, okay? So it's not going to be like, oh, we're going to bring in every school child from the sixth grade who heard this child say this thing on the playground. We're going to have a hearing ahead of time. We're going have a motion filed. That motion is going to contain very specific statements. We're going to bring in the witnesses to those statements, and we're going have them testify. We're going to have them testify under oath, and we're going to have them cross examined by the defense. And we're going to pick apart why that statement has any indicia of reliability or why, really, maybe we should ignore it. And we're going to do that for every single statement. And then we're going to choose which ones meet that threshold and can be admitted and which ones cannot. And that's all going to happen ahead of time. I mean, those hearings can last anywhere from just an hour, which is fairly normal, to multiple days. I've had 804A a hearing that has lasted more than two days. So there's going to be the opportunity to really pick apart these statements before it ever gets to the jury, Okay? Before the confrontation clause is ever really implicated, we are going to be able to to give the defense every possible angle to look at these statements and see why or why not they should not be, admitted, and then the judge is gonna hear about it. And the child is going to have to testify. I mean, we're not taking the child out of this situation. They're going to testify, and they're rarely going to be allowed to testify by closed circuit TV. So they're going to be there in front of the person who did the most horrific thing to them, And they're going to have to say what happened to them. But this gives them the chance to do that and not be the only witness that day in court. I mean, I've seen cases of sexual abuse for with a child victim where the only witness is the investigating officer and the child, and that's it. And I think it's very hard for a jury to really understand what happened to that child if that's it. We need to know what was going on in that child's life. We need to know that little bit of the snapshot of what happened around that disclosure. And this gives us the opportunity to flesh that. And I think it's a very important move for us to take,

[Jennifer Pullman (Director, Vermont Center for Crime Victim Services)]: and I

[Laura Byerly (Director, Victims' Rights Project, Vermont Legal Aid)]: thank the committee for considering this and bringing this forward. Children can be deposed, by the way. It's not that there's a blanket deposition block. They are allowed to be deposed. They just the defense has to file a motion. And those motions are considered, like and types of questions will be considered, and the protections that are needed will be considered. So there is no bar for the defense getting the information they need to make sure that they are addressing this case as it really is and not just addressing it as, Oh, how can we intimidate this victim?

[Rep. Martin LaLonde (Chair)]: So I have a question as far So as an individual, let's say, a school counselor has heard a statement and they're testifying initially and maybe also on cross examination. Is it just a statement or would they be asking the counselor, well, how was child when he or she came to you? What was her demeanor? And, you know, how was she feeling? Those kind of questions asked as well, not just the statement, but trying to get a sense of of of the situation that the disclosure happened. In the 804A hearing, it was definitely asked.

[Laura Byerly (Director, Victims' Rights Project, Vermont Legal Aid)]: The 804A? Yes. And then it's up to the prosecutor and the defense about what they're going to do as part of the actual trial, whether that information is going to be brought in. There might be motions filed about the extent of that testimony. I imagine there probably will be, along with all the other motions that we file in serious criminal cases. But that information definitely comes in under the 804A, so it is known and widely known to the defense exactly what was going on with these decisions. And they have the opportunity to make sure that these are reliable things. This isn't just something that was said because they were having a fight with a new restriction and they just wanted to make it. And they read an article and they wanted to make an accusation. I mean, we hear that kind of thing a lot, that that's small. But, so we get to examine that and find out, like, what is the thing that makes this a truthful accusation versus just, somebody saying something because they were having a really bad day or feeling certain. So we get that information, and then it's up to the defense and the prosecution to decide what to do with it.

[Rep. Martin LaLonde (Chair)]: So I have some questions. And Kate, I'm gonna go back to you after Laura is done, if you have any additional, but I'll let this testimony finish up first. But Karen, your questions?

[Jennifer Pullman (Director, Vermont Center for Crime Victim Services)]: Yes, thank you for being here and thanks for your work in supporting kids and teens through

[Rep. Karen Dolan (Member)]: these really bad circumstances. My question is, so earlier we heard how this law could potentially be doing opposite of what we're looking for, because it could increase the testimony and the time that youth is on the stand. I'm wondering what your thoughts are about that.

[Laura Byerly (Director, Victims' Rights Project, Vermont Legal Aid)]: I think they're already there. And I think the main instance of trauma is just getting there and having to sit there in that room, extending it by an extra hour because we need to go into a little bit more about what happened when you said that. I don't see that as being as much of a detriment as then going there and then having no one else who's saying what they've said.

[Rep. Karen Dolan (Member)]: But not concerned. You

[Laura Byerly (Director, Victims' Rights Project, Vermont Legal Aid)]: know, I certainly would prepare and work with my clients. And I wish we had more victims' attorneys to aid in that process. But they definitely I mean, I understand the concern. And we certainly don't want to be putting a victim on the stand, especially a child victim, longer than they have to. But we need the information and the jury needs to hear it and the defendant needs to have their opportunity to examine it. So, that is our process.

[Rep. Karen Dolan (Member)]: And so it's a worthwhile trade off. Might be. And it sounds like it would be something that you would consider just about the other factors of like, does this make sense? Okay. Thank you. Other questions?

[Rep. Martin LaLonde (Chair)]: Yes, apparently not. So thank you very much, Warren. Really appreciate it. Thank you, Kevin. And we'll go back to Kate Lamson.

[Kate Lampson (Public Defender, Bennington County)]: Just briefly, thank you. I just wanted to say that it's absolutely correct. It's not a blanket rule that we can't take depositions of kids 16 in these situations, but it's very difficult. You know, if the child advocacy centers, for example, do a great job of making sure that they take statements from kids that are very detailed. And unless the defense can show some compelling reason that they need the deposition because there isn't enough information, then we are routinely refused under that rule being able to depose the child. Because as was said, you know, we're presumed to have all of the information that we need to be able to go forward. But practically speaking, not being able to depose a child witness makes can also make things more difficult to resolve because we don't know the strength of the state's case. Aside from that, I guess I just wanted to say that I can't, you know, imagine a better use of everybody's time than to try to protect vulnerable children. But what I'm hearing is that the, you know, the main reason that this bill should be passed is because it makes it easier for the state to prove their case because the child feels more supported by having those other witnesses testify in that manner. And that does not seem to me to be a compelling enough reason, particularly when sexual assaults of a child carry a potential life maximum, and many of them carry a potential ten year minimum. So I understand that it's not at all as strong of a case for the state if it's just the child and the lead officer investigating, but that's fair. Thank you.

[Rep. Martin LaLonde (Chair)]: I appreciate that. Thank you. Any other questions? I think that was all of the witnesses we have on this. We'll probably have some discussion tomorrow morning on this. I do have it scheduled for a possible vote, So we'll see if we're ready for that come tomorrow. Did you wanna follow-up? Did you wanna say anything more? I'm happy to have you back on the Give you the final word.

[Jennifer Pullman (Director, Vermont Center for Crime Victim Services)]: I'll take a minute. Don't have anything prepared, but why not?

[Sheriff Jennifer Harlow (Orleans County)]: Give me the trash.

[Jennifer Pullman (Director, Vermont Center for Crime Victim Services)]: For the record, Jennifer Pullman, director of the Vermont Center for Crime Victim Services. I did want to just remind us that what started this conversation back two years ago was that we had an age disparity between the deposition rule age and eight zero four. Nobody can make that disparity make sense. So the purpose of this conversation initially was how does that make sense in terms of how we're treating young people who are alleged to to have caused harm? I did forward to Nate a Supreme Court case that is squarely on point if the concern is about eight zero four a, not eight zero seven. That's a different rule altogether that we're not here to talk about. Eight zero four a and whether it violates the confrontation clause. State v Gallagher Supreme Court decision that you all have now, if you haven't opened up your emails, squarely says it does not. So we're not here to debate eight zero seven. We're here to look at what 804A currently allows. And you've heard from many witnesses who work with adolescents, 13 to 15, who are saying this will make a difference. And when we talk about putting a brick on the scale in favor of children, because they are children, it really ignores the incredible power imbalance that currently exists for a young person. Again, as you heard in saying, I have this job. I have this job. I don't want this job. I just don't want to be hurt. I just don't want anybody else to be hurt. And in this day and age where social media is so pervasive, it's so toxic. It's a lot to ask. Again, there are so many hoops to jump for jump through. In these cases, so many hoops that still exist. 804A has those pieces which also require that a court, the judge, find that addition of reliability. So it's a separate inquiry over and above what the people who are trying to introduce their statement. It's a whole other threshold. So I really want people to think about the context of the law that exists, that exists the rule that exists in 40 other states, that we have case law that supports that it is, in fact, not a confrontation clause issue. Again, talking about 804A. And I really hope that this committee will, again, get back to the reason we're here, which was two years ago, we wondered why are our deposition protections different for young people in rule 15 than they are in 08/2004. We're talking about 13 to 15 year olds, and I really hope that we can ground ourselves back and why we started this conversation to begin with. I don't have anything else to offer, I appreciate the opportunity to weigh in.

[Rep. Martin LaLonde (Chair)]: Thank you. Thank you. Yeah. Perfect. I have

[Unidentified Committee Member]: a question for Kate, and then a question for Samantha. So you had said something about and I I heard it earlier the first day we took some testimony on this as far as making it easier for the state to prosecute, I think is what you said. And in your experience with with these types of cases, have people been getting off because it's not easy to prosecute? I I think that's the question I wanna ask.

[Kate Lampson (Public Defender, Bennington County)]: I'm sure sometimes, I guess, that the cases are just outright dismissed, potentially, if child witness doesn't wanna go forward. But I think more frequently, it's a bargaining chip between the sides to, you know, either plead the case down a little bit and agree to something else. You know, it's it's usually used more as a bargaining chip. I rarely have prosecutors come to me and say, my witness can't do this. But they might come to me and say, I'm willing to offer your guy x instead of y. Does that make sense?

[Unidentified Committee Member]: A little bit for a non lawyer. Yes. It does. Thank you. And and, Samantha, in your testimony, you you mentioned the science as far as and the way I understood it was that it it's gonna be beneficial, I guess you could say, emotionally for the for the kids to be able to do this. And I can totally appreciate that. As far as the age of 16 goes, why 16? Is there is there science behind it, or we we've also heard in some testimony. It's just an arbitrary number. You know, why not just to 13 or 14 or 15 or 17, I guess?

[Samantha Prince (Director of Outreach and Advocacy, Vermont Children's Alliance; Forensic Interviewer)]: Yeah. I would say so there is definitely science to support that testifying as a victim of sexual crimes or allegations, I should say, is really really traumatizing. It in fact is often referred to as a second rape among victims because it is so challenging and so painful to have to endure scrutiny about their experience and to hash out every single detail and to be criticized for how they can remember and how they can speak about it. And I mean, just imagine you're sitting in an open courtroom with whomever there is there to witness this, and you're having to hash out these things about your genitalia, your private body parts, things that have happened to you that you feel are so heinous and so awful that it was hard for you to talk about in the first place. And now you're having to hash it out in front of all these other people, complete strangers to you, asking you the most intimate, awful questions. It is absolutely retraumatizing. If it was up to me, no victim would have to do this in open court and have to be subjected to the kind of treatment that they are because it is so awful to experience. And I, in fact, at my own child advocacy center where I where I work, had a team come here and say to me, tell me what this would be like if I decided to go forward with this. And so we walked them through what the projection could look like up to and including court. And they said that the overall process didn't feel like it was gonna be worth it to them and they would rather just go to therapy. And the ramifications for that, how detrimental kids are worried that court is going to be and how detrimental it is in fact, which again research and science supports, is absolutely, I know you didn't ask me this question, you asked it of Kate, but it is absolutely a reason why a lot of offenders are going without charges and without any punishment. And people are just either not coming forward or saying they don't wanna engage in the process.

[Unidentified Committee Member]: Right. So why 16? I I can appreciate the expansion of the age, you know, and the reasons for it, but but but why 16 and not 15 or 17? Where where the where the where I mean, where where's the number? And I know other states have 16.

[Rep. Martin LaLonde (Chair)]: And and,

[Unidentified Committee Member]: I mean, why did they pick it, you know, choose 16? Why are we I'm not agreeing, disagreeing. I'm just curious.

[Samantha Prince (Director of Outreach and Advocacy, Vermont Children's Alliance; Forensic Interviewer)]: Yeah. I I I don't know, to be honest. I didn't pick 16. Like I said, if it was up to me, I would I would pick 25, 30, 45. I would

[Jennifer Pullman (Director, Vermont Center for Crime Victim Services)]: pick no age,

[Samantha Prince (Director of Outreach and Advocacy, Vermont Children's Alliance; Forensic Interviewer)]: but I don't know. I don't know why 16.

[Unidentified Committee Member]: Alright. Thank you.

[Rep. Martin LaLonde (Chair)]: And I think it's actually 50. It's actually under 16. Yeah. Alright. Wasted my day. Right, great, thank you. So like I say, we'll have some further discussion. We can all think about this overnight and review any of the testimony. There's a lot of written testimony as well. We'll Did you have a question?

[Unidentified Committee Member]: Yeah, I don't have a Do you have a book?

[Jennifer Pullman (Director, Vermont Center for Crime Victim Services)]: It's a process question.

[Rep. Ian Goodnow (Member)]: Mine's not quite process, not really for a witness though. Do So we have somewhere I was just looking on the website for this bill, just to break down what hearsay exception age is for each state.

[Rep. Martin LaLonde (Chair)]: I think we yeah. It should be posted under It should be. I was

[Rep. Ian Goodnow (Member)]: just trying to find it again.

[Rep. Martin LaLonde (Chair)]: So I'll just But we have

[Rep. Ian Goodnow (Member)]: it somewhere. It's somewhere in I just want to review it again.

[Jennifer Pullman (Director, Vermont Center for Crime Victim Services)]: Yes. I can certainly resubmit that to Nate, but I do have

[Rep. Martin LaLonde (Chair)]: Okay. All right. Yeah. It's already been submitted. I just want to look at it.

[Rep. Ian Goodnow (Member)]: We do have that material somewhere. Right.

[Rep. Karen Dolan (Member)]: So a process question is, so you said we'll have committee discussion tomorrow, maybe a vote. Are we gonna have another version of this? Because I know we wanted to, at the very least, change the effective date. And there was discussion about potentially the title or the statement of purpose. Maybe that's in the discussion, but I

[Rep. Martin LaLonde (Chair)]: did change it to July. Right.

[Rep. Karen Dolan (Member)]: So and I didn't know because you said possibly a vote. I don't know what other factors are being considered if we're not a vote.

[Rep. Martin LaLonde (Chair)]: It Yeah, I mean, yes. That's a good question. It Or testimony? If everybody looks at this and feels they need more or more time than this stage in the session, that's

[Rep. Ian Goodnow (Member)]: fine.

[Rep. Martin LaLonde (Chair)]: I mean, I'm expecting we will be able to vote tomorrow.

[Rep. Karen Dolan (Member)]: Hope I'm not concerned. I should let you know before then.

[Jennifer Pullman (Director, Vermont Center for Crime Victim Services)]: Right. But I just knew if that's a version.

[Laura Byerly (Director, Victims' Rights Project, Vermont Legal Aid)]: I wanted to make sure we have an accurate version.

[Rep. Martin LaLonde (Chair)]: I know that tomorrow during our discussion, if there are concerns that need some further that that's the only thing. I mean, I think we've gotten all the testimony that we probably need, would imagine. Else for that? All right, so thank you very much, witnesses. Really appreciate that. I just have one other thing and then we're gonna take a short break. So there was still one issue that I think that we haven't fully understood, or at least I don't think I fully understood. This is a different bill for you guys. So it's on H-five 45, which we are just doing a drive by on. And that's the gross negligence standard and whether that And that was raised by Adam McCrasson as far as whether that should be negligence. And I would like to understand why it's gross negligence. So I'm Lauren to return at 02:30 so we can get that additional testimony and have her explain that. And perhaps she can also explain this issue of whether the informed consent and how that may or may not play into what we're trying to figure out here. So we'll be back at 02:30.