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Toobin: California law allows admission of child's prior statement

Jeffrey Toobin
Jeffrey Toobin

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From the California Penal Code Section 288(a):
Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.

(CNN) Singer Michael Jackson surrendered to authorities in Santa Barbara, California, on Wednesday to face child molestation accusations. (Full story) CNN anchor Kyra Phillips spoke with CNN legal analyst about changes in California law that apply to alleged juvenile abuse victims.

KYRA PHILLIPS: Explain to us how the law has changed in California. There was a lot of back and forth on this yesterday and even today. The DA (district attorney) coming forward and saying, "the law is different from 1993, when allegations first came forward about Michael Jackson and child molestation." He said now the law has changed, that's why we're filing charges and going forward in this manner. How has the law changed? Is it with regard to the victim being forced to speak or not to speak? Explain that to us.

JEFFREY TOOBIN: This really was the subject of, I think it's fair to say, some incorrect information that was provided by the district attorney yesterday. He, let me give you a little background of why it's significant.

In the 1993 case, Michael Jackson was accused not in a criminal court, but there was a civil accusation that he molested a child. A criminal investigation followed. There then was a civil settlement between Michael Jackson and the child. He paid the child a great deal of money, several million dollars. That child and his family then said we will not participate with the criminal justice system, we will not testify, we're checking out.

Yesterday, the district attorney said, well, things are different now, because children can be forced to testify in these investigations. That's simply not true. That is not the law. But the law did change in an important way.

What happens, the law now is that if a child under 12 -- and that's a significant fact, if the child is under 12 -- has given a prior statement under circumstances that the court thinks are reliable, and then the child withdraws his cooperation, that previous statement can be admitted in court. If it's a written statement, if it's a videotaped statement, that statement can be admitted in court even though it's hearsay. So that's a big change. But it is not a change that says kids can be forced to testify, because they can't.

PHILLIPS: Sounds like there's a big challenge here with regard to proving intent.

TOOBIN: Well, these cases are very tough to prove. And the law is also very concerned about a second violation of children in the sense of forcing them to testify, forcing them to live through this, forcing them to be cross-examined. That's a tension in the system. We want defendants to have a fair trial, to be able to test the evidence against them, but we also want children not to be harassed and further abused by the legal system.

So what the change meant in the law since '93 is to try to achieve a better balance there, to give the prosecutor some option of using information gleaned from these victims without subjecting them to cross-examination. The California courts have upheld this process of allowing these prior statements to be admitted. But it is a difficult balance between these two competing interests.

PHILLIPS: As this goes on and this proceeds, I want to ask you a question about this because this interview has come up time and time again. You remember the interview that Michael Jackson did. It was very controversial. At least what he said was very controversial. With the British TV -- remember the British TV interview that he did, and I have a number of the quotes here that I wrote down that came from that documentary.

He said things in this documentary, for example, "I used to walk around holding baby dolls, because I wanted children so badly." He talked about having kids sleeping in his bed, including certain former child actors. "When we'd go to sleep, I put the fireplace on, I give them hot milk. You know, we have cookies. It's very charming, it's very sweet, it's what the whole world should do." And he goes on to talk about how there's not nothing -- anything sexual going on here, but he has admitted a number of times about his relationship and love for children.

Can this come back and haunt him in this case?

TOOBIN: You know, Kyra, sometimes I worry that I give weasely answers. Here I'm going to give you a straight answer. Absolutely. These kinds of statements are clearly admissible. Prior statements by a defendant that tend to show intent are clearly admissible. And certainly, that statement about allowing children to sleep in the same bed as him would come in.

Now, the defense would have the opportunity to put in the full context of this statement where he says, "Oh, it's very innocent, it's not -- there's nothing wrong with it, there's nothing inappropriate." So the defense would certainly be allowed to introduce the full statement, but prosecutors absolutely would be allowed to put in that statement. And frankly, I think it would be very damaging, a grown man admitting that he sleeps in the same bed with children, a man who is now accused of child molestation? Sounds damaging to me.

PHILLIPS: Jeffrey, thanks so much. We'll continue to check in with you.

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