COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 34
(By Senators Kessler, Sharpe, Minear, McKenzie, Hunter,
Ross, Edgell, Mitchell, Anderson, Burnette, Boley and Rowe)
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[Originating in the Committee on the Judiciary;
reported March 30, 2001.]
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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 and providing procedures for taking the testimony
of a child witness by using live, closed-circuit television;
findings; definitions; procedures; jury instructions;
recording of statements; sanctions for failure to comply
with provisions; and exceptions.
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 hereby finds that there are rare occasions
when the interests of justice cannot be served due to a child of
tender years who is the alleged victim of certain offenses being
unable to testify while in the physical presence of the defendant
in the courtroom.
The Legislature further finds that the constitutional
requirement of confrontation must be protected and exceptions
thereto should be strictly limited.
The Legislature further finds that a child of tender years,
more so than an adult, may be subject to coercion and pressure by
interested adults and the interests of justice would be served by
requiring, unless infeasible, memorialization of child victim
statements in certain criminal matters.
§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 matter
concerning an alleged violation of the provisions of sections
three, four, five and seven, article eight-b, chapter sixty-one
of this code in which the child is the alleged victim.
(b) "Live, two-way 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 two-way closed-circuit television equipment used
in accordance with the provisions of this article.
(d) "Testimonial room" means a room within the courthouse
other than the courtroom from which the testimony of a child
witness or the defendant is transmitted to the courtroom by means
of live, two-way closed-circuit television.
§62-6B-3. Findings of fact required for taking testimony of
child witness by closed-circuit television; considerations
for court.
(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 at a pretrial proceeding or at trial
through the use of live, two-way closed-circuit television.
(b) Prior to ordering that the testimony of a child witness
may be taken through the use of live, two-way closed-circuit
television, the circuit court must find by clear and convincing
evidence, after conducting an evidentiary hearing on this issue, that:
(1) The child is an otherwise competent witness;
(2) That absent the use of live, two-way closed-circuit
television, the child witness will be unable to testify due
solely to being required to be in the physical presence of the
defendant while testifying;
(3) The child witness can only testify if live, two-way
closed-circuit television is used in the trial; and
(4) That the state's ability to proceed against the
defendant without the child witness' live testimony would be
substantially impaired or precluded.
(c) The court shall consider the following factors in
determining the necessity of allowing a child witness to testify
by the use of live, two-way closed-circuit television:
(1) The age and maturity of the child witness;
(2) The facts and circumstances of the alleged offense;
(3) The necessity of the child's live testimony to the
prosecution's ability to proceed;
(4) Whether or not the facts of the case involve the alleged
infliction of bodily injury to the child witness or the threat of
bodily injury to the child or another; and
(5) Any mental or physical handicap of the child witness.
(d) In determining whether to allow a child witness to
testify through live, two-way closed-circuit television the court
shall appoint a psychiatrist, doctoral-level licensed
psychologist or a licensed clinical social worker with at least
five years of significant clinical experience in the treatment
and evaluation of children who shall serve as an advisor or
friend of the court to provide the court with an expert opinion
as to whether, to a reasonable degree of professional certainty,
the child witness will suffer severe emotional harm, be unable to
testify based solely on being in the physical presence of the
defendant while testifying and that the child witness does not
evidence signs of being subjected to undue influence or coercion.
The opinion of the psychiatrist, doctoral-level psychologist or
licensed clinical social worker shall be filed with the circuit
court at least thirty days prior to the final hearing on the use
of live, two-way closed-circuit television and the defendant
shall be allowed to review the opinion and present evidence on
the issue by the use of an expert or experts or otherwise.
§62-6B-4. Procedures required for taking testimony of child
witness by closed-circuit television; election of defendant;
jury instruction; sanction for failure to follow procedures.
(a) If the court determines that the use of live, two-way closed-circuit testimony is necessary and orders its use the
defendant may at any time prior to the child witness being
called, elect to absent himself from the courtroom during the
child witness' testimony. If the defendant so elects the child
shall be required to testify in the courtroom.
(b) (1) If live, two-way closed-circuit television is used
in the testimony of the child witness, he or she shall be taken
into the testimonial room and be televised live, by two-way
closed-circuit equipment to the view of the defendant, counsel,
the court and, if applicable, the jury. The projected image of
the defendant shall be visible for child witness to view if he or
she chooses to do so and the view of the child witness available
to those persons in the courtroom shall include a full body view.
Only the prosecuting attorney, the attorney for the defendant and
the operator of the equipment 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 such 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.
(2) If the defendant elects to not be physically present in
the courtroom during the testimony of the child witness, the
defendant shall be taken into the testimonial room and be
televised live, by two-way 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. There shall be
made and maintained a recording of the images and sounds of all
proceedings which were televised pursuant to this article. While
the defendant is in the testimonial room, the defendant shall be
permitted to view the live, televised image of the child witness
and the image of those other persons 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 such a manner as to
cause as little emotional distress 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
contemporaneous with the taking of the testimony. No proceedings
other than the taking of the testimony of the child witness shall
occur while the defendant is outside the courtroom. 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 every case where the provisions of the article are
used, the jury, at a minimum shall, be instructed, unless such
instruction is waived by the defendant, that the use of live,
two-way closed-circuit television is being used solely for the
child's convenience, that the use of the medium cannot as a
matter of law and fact be considered as anything other than being
for the convenience of the child witness and that to infer
anything else would constitute a violation of the oath taken by
the jurors.
§62-6B-5. Recording statement of child witness.
(a) After the effective date of this section, whenever any
law-enforcement officer, physician, psychologist, social worker
or investigator acting in the course of his or her employment or
profession obtains a statement while engaged in a criminal
investigation from a child thirteen years of age or younger who
is an alleged victim in an active criminal investigation or
criminal prosecution involving an alleged violation of the
provisions of section three, four, five or seven, article eight-
b, chapter sixty-one of this code the statement of the child
shall be recorded either by audio tape or video tape with audio
capability. The failure to comply with the provisions of this
subsection shall entitle any person named as a defendant in a
criminal action where the introduction of the statement is sought
to, by motion, exclude the introduction of the contents of the
statement at trial unless the provisions of subsection (b) of
this section are complied with fully.
(b) After the effective date of this section, whenever any
law-enforcement officer, physician, psychologist, social worker
or investigator, in the course of his or her employment or
profession, obtains a statement while engaged in an active
criminal investigation as a law-enforcement officer or an agent of a prosecuting attorney from a child thirteen years of age or
younger who is an alleged victim in an investigation or
prosecution alleging a violation of the provisions of section
three, four, five or seven, article eight-b, chapter sixty-one of
this code under circumstances where it is infeasible to comply
with the provisions of subsection (a) of this section, he or she
shall forthwith make a contemporaneous notation and a complete
recitation of the statement received or obtained. Failure to
comply with the provisions of this subsection or subsection (a)
of this section shall entitle any person named as a defendant in
a criminal action where the introduction of the statement is
sought to exclude, by motion, the introduction of the contents of
the statement at trial.
(c) The provisions of this section shall not apply to
persons engaged in investigation pursuant to the provisions of
article six or seven, chapter forty-nine of this code.
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(NOTE: The purpose of this bill is to provide for the
testimony of a child witness to be taken using live,
closed-circuit television. The bill provides procedures and
sanctions for failure to comply with provisions.
This article is new; therefore, strike-throughs and
underscoring have been omitted.)