H. B. 2040


(By Delegates Douglas, Manuel, Rowe, Jenkins and Leach)
[Introduced January 13, 1999; referred to the
Committee on the Judiciary.]




A BILL to

amend chapter sixty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article six-b, relating to allowing for and providing procedures for taking the testimony of a child witness by using live, closed-circuit television.
Be it enacted by the Legislature of West Virginia:
That chapter sixty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article six-b, to read as follows:
ARTICLE 6B. TESTIMONY OF CHILD WITNESS.
§62-6B-1. Legislative findings.
The Legislature finds that there are rare occasions where the interests of justice cannot be served due to an inability of a child of tender years, who is the alleged victim of certain sexual offenses, to communicate his or her testimony at the trial of a defendant charged with the offense because the child is caused serious psychological injury requiring treatment due solely to the child witness being in the physical presence of the defendant in the courtroom while testifying.
The Legislature further recognizes that the standard requirement that all witnesses in a criminal case be present to testify in the courtroom and in the defendant's physical presence should be altered only under extraordinary circumstances, such as those set forth in this article.
§62-6B-2. Definitions.
(a) "Child witness" means a person thirteen years of age or less who is or will be called to testify in a criminal proceeding concerning an offense that is the subject of a criminal proceeding.
(b) "Live, closed-circuit television" means a simultaneous transmission, by closed-circuit television, or other electronic means, between the courtroom and the testimonial room.
(c) "Operator" means the individual authorized by the court to operate the closed-circuit television equipment used in accordance with the provisions of this article.
(d) "Testimonial room" means a room other than the courtroom from which the testimony of a child witness or the defendant is transmitted to the courtroom by means of live, closed-circuit television.
§62-6B-3. Findings of fact required for taking testimony of child witness by closed-circuit television.

(a) Upon a written motion filed by the prosecuting attorney, and upon findings of fact determined pursuant to subsection (b) of this section, a circuit court may order that the testimony of a child witness may be taken through the use of live, closed- circuit television.
(b) Prior to ordering that the testimony of a child witness may be taken through the use of live, closed-circuit television, the trial court must find, after conducting an evidentiary hearing on this issue, that:
(1) The child witness is an otherwise competent witness;
(2) The child witness will suffer psychological trauma if required to testify in the presence of the defendant, and not merely from being required to testify in a courtroom generally;
(3) The trauma would be more than mere anxiety or reluctance to testify on the part of the child witness;
(4) The trauma would impair the ability of the child witness to testify truthfully; and
(5) The use of live, closed-circuit television reasonably is necessary to protect the welfare of the child witness.
§62-6B-4. Procedures required for taking testimony of child witness by closed-circuit television; election of defendant; jury instruction.

(a) The procedures by which the testimony of the child witness may be taken by the use of live, closed-circuit television are prescribed by subsection (b) of this section. Within a reasonable period of time prior to the commencement of the proceeding at which the testimony will be taken, to be determined by the court, the defendant may elect either of the procedures for taking the testimony which are described in subdivisions (1) and (2), subsection (b) of this section. Upon making the election, the procedure elected by the defendant shall be followed by the court. In the event the defendant fails to elect within the period of time determined by the court, the court shall select one of the two procedures described in subsection (b) of this section.
(b)(1) The defendant or the court, to be determined pursuant to the provisions of subsection (a) of this section, may select the procedure described in this subdivision for taking the testimony of the child witness by the use of live, closed-circuit television. The child witness shall be taken into the testimonial room and be televised live, by closed-circuit equipment to the view of the finder of fact and others present in the courtroom to whom a view of the child witness is determined by the court to be necessary. Only the prosecuting attorney, the attorney for the defendant, the operator of the equipment, and a nonwitness whose presence the court finds would contribute to the child's ability to testify truthfully may be present in the room with the child witness during testimony. Only the court, the prosecuting attorney and the attorney for the defendant may question the child. In pro se proceedings, the court may modify the provisions of this subdivision relating to the role of the attorney for the defendant to allow the pro se defendant to question the child witness in a manner as to cause as little psychological trauma as possible under the circumstances. The court shall permit the defendant to observe and hear the testimony of the child witness contemporaneous with the taking of the testimony. The court shall provide electronic means for the defendant and the attorney for the defendant to confer confidentially during the taking of the testimony. During the taking of the testimony, the view of the trier of fact shall be transmitted to the child witness.
(2) The defendant or the court, to be determined pursuant to the provisions of subsection (a) of this section, may select the procedure described in this subdivision for taking the testimony of the child witness by the use of live, closed-circuit television. The defendant shall be taken into the testimonial room and be televised live, by closed-circuit equipment to the view of the finder of fact and others present in the courtroom. The defendant shall be taken to the testimonial room prior to the appearance of the child witness in the courtroom. While the defendant is in the testimonial room, the defendant shall be permitted to view the live, televised image of those in the courtroom whom the court determines the defendant is entitled to view. Only the court, the prosecuting attorney and the attorney for the defendant may question the child. In pro se proceedings, the court may modify the provisions of this subdivision relating to the role of the attorney for the defendant to allow the pro se defendant to question the child witness in a manner as to cause as little psychological trauma as possible under the circumstances. The transmission from the courtroom to the testimonial room shall be sufficient to permit the defendant to observe and hear the testimony of the child witness contemporaneously with the taking of the testimony. No proceedings other than the taking of the testimony of the child witness may occur while the defendant is in the testimonial room. In the event that the defendant elects that the attorney for the defendant remain in the courtroom while the defendant is in the testimonial room, the court shall provide electronic means for the defendant and the attorney for the defendant to confer confidentially during the taking of the testimony.
(c) In an instance when a child witness testifies pursuant to the procedures allowed in this article, the court shall instruct the jury that it is not to give any different weight to the testimony of a child witness by closed-circuit television than it would give the testimony had it been taken in the courtroom.


NOTE: The purpose of this bill is to set forth exceptions to the standard court procedures in certain cases of testimony by a child witness by using live, closed-circuit television. The bill sets up procedures for taking testimony; election of defendant between procedures; and jury instruction.

This article is new; therefore, strike-throughs and underscoring have been omitted.