H. B. 2257
(By Delegate Farris)
[Introduced February 23, 1993; referred to the
Committee on the Judiciary.]
A BILL to amend article six, chapter sixty-two of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto three new sections, designated
sections six-a, six-b and six-c, all relating to juveniles
being allowed to testify via closed circuit television in
sexual abuse cases.
Be it enacted by the Legislature of West Virginia:
That article six, chapter sixty-two of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto three new sections, designated sections
six-a, six-b and six-c, all to read as follows:
ARTICLE 6. MISCELLANEOUS PROVISIONS CONCERNING CRIMINAL
PROCEDURES.
§62-6-6a. Juvenile testifying via closed circuit television in
sexual abuse cases; declaration of vulnerability.
A child witness, meaning any person twelve years old or
less, shall be declared vulnerable when the court determines byclear and convincing evidence that it is likely, as a result of
extraordinary circumstances, that such child witness will suffer
severe mental or emotional harm if required to testify at any
sexual abuse proceeding without the use of live, two-way closed-
circuit television and that the use of such live, two-way closed-
circuit television will help prevent, or diminish the likelihood
or extent of, such harm.
When the court declares a child witness to be vulnerable, it
shall authorize the taking of the testimony of the vulnerable
child witness from the testimonial room by means of live, two-way
closed-circuit television.
Nothing herein shall be construed to preclude the court from
exercising its power to close the courtroom or from exercising
any authority it otherwise may have to protect the well-being of
a witness and the rights of the defendant.
Notwithstanding any other provision of law, any physician,
psychologist, nurse or social worker who has treated a child
witness may testify at a hearing concerning the treatment of such
child witness as such treatment relates to the issue presented at
the hearing:
Provided, That
any otherwise applicable statutory
privileges concerning communications between the child witness
and such physician, psychologist, nurse or social worker in
connection with such treatment shall not be deemed waived by such
testimony alone, except to the limited extent of permitting the
court alone to examine in camera reports, records or documents,
if any, prepared by such physician, psychologist, nurse or socialworker. If upon such examination the court determines that such
reports, records or documents, or any one or portion thereof,
contain information material and relevant to the issue of whether
the child witness is a vulnerable child witness, the court shall
disclose such information to both the attorney for the defendant
and the prosecuting attorney.
§62-6-6b. Factors considered in determining vulnerability.
The court may consider, in determining whether there are
such extraordinary circumstances as would cause the child witness
to suffer severe mental or emotional harm, a finding that any one
or more of the following factors have been established by clear
and convincing evidence:
(1) The manner of the commission of the offense of which the
defendant is accused was particularly heinous or was
characterized by aggravating circumstances.
(2) The child witness is particularly young or otherwise
particularly subject to psychological harm on account of a
physical or mental condition which existed before the alleged
commission of the offense.
(3) At the time of the alleged offense, the defendant,
occupied a position of authority with respect to the child
witness.
(4) The offense or offenses charged were part of an ongoing
course of conduct committed by the defendant against the child
witness over an extended period of time.
(5) A deadly weapon or dangerous instrument was allegedlyused during the commission of the crime.
(6) The defendant has inflicted serious physical injury upon
the child witness.
(7) A threat, express or implied, of physical violence to
the child witness or a third person if the child witness were to
report the incident to any person or communicate information to
or cooperate with a court, grand jury, prosecutor, police officer
or peace officer concerning the incident has been made by or on
behalf of the defendant.
(8) A threat, express or implied, of the incarceration of a
parent or guardian of the child witness, the removal of the child
witness from the family or the dissolution of the family of the
child witness if the child witness were to report the incident to
any person or communicate information to or cooperate with a
court, grand jury, prosecutor, police officer or peace officer
concerning the incident has been made by or on behalf of the
defendant.
(9) A witness other than the child witness has received a
threat of physical violence directed at such witness or to a
third person by or on behalf of the defendant.
(10) The defendant, at the time of the inquiry, (i) is
living in the same household with the child witness, (ii) has
ready access to the child witness, or (iii) is providing
substantial financial support for the child witness.
(11) According to expert testimony, the child witness would
be particularly susceptible to psychological harm if required totestify in open court or in the physical presence of the
defendant.
§62-6-6c. Closed-circuit television; procedures; alternate
procedures.
(a) When the court has entered an order, the testimony of
the vulnerable child witness shall be taken in the testimonial
room and the image and voice of the vulnerable child witness, as
well as the image of all other persons other than the operator
present in the testimonial room, shall be transmitted live by
means of closed-circuit television to the courtroom. The
courtroom shall be equipped with monitors sufficient to permit
the judge, jury, defendant and attorneys to observe the demeanor
of the vulnerable child witness during his or her testimony.
Unless the courtroom has been closed pursuant to court order, the
public shall also be permitted to hear the testimony and view the
image of the vulnerable child witness.
(b) In all instances, the image of the judge, the image of
the jury, the image of the defendant, the image of the courtroom
or the image of the person examining the vulnerable child witness
shall not be transmitted to the vulnerable child witness in the
testimonial room.
(c) The operator shall place herself or himself and the
closed-circuit television equipment in a position that permits
the entire testimony of the vulnerable child witness to be
transmitted to the courtroom but limits the ability of the
vulnerable child witness to see or hear the operator or theequipment.
(d) Notwithstanding any provision of this article, if the
court in a particular case involving a vulnerable child witness
determines that there is no live, two-way closed-circuit
television equipment available in the court or another court in
the county or which can be transported to the court from another
county or that such equipment, if available, is technologically
inadequate to protect the constitutional rights of the defendant,
it shall not permit the use of the closed-circuit television
procedures authorized by this article.
(e) The attorney for the defendant and the prosecuting
attorney shall also remain in the courtroom unless the court is
satisfied that his or her presence in the testimonial room will
not impede full and private communication between the defendant
and his or her attorney and will not encourage the jury to draw
an inference adverse to the interest of the defendant.
(f) Upon request of the defendant, the court shall instruct
the jury that they are to draw no inference from the use of live,
two-way closed-circuit television in the examination of the
vulnerable child witness.
(g) The vulnerable child witness shall testify under oath
and the examination and cross-examination of the vulnerable child
witness shall, in all other respects, be conducted in the same
manner as if the vulnerable child witness had testified in the
courtroom.
(h) When the testimony of the vulnerable child witness istransmitted from the testimonial room into the courtroom, the
court stenographer shall record the testimony in the same manner
as if the vulnerable child witness had testified in the
courtroom.
NOTE: The purpose of this bill is to allow certain juvenile
witnesses in sexual abuse proceedings to testify via closed-
circuit television for their own protection.
These sections are new; therefore, strike-throughs and
underscoring have been omitted.