Senate Bill No. 34

(By Senators Kessler, Sharpe, Minear, McKenzie,

Hunter, Ross, Edgell, Mitchell, Anderson, Burnette, Boley and Rowe)

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[Introduced February 14, 2001; referred to the Committee on the Judiciary.]

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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; and sanctions for failure to comply with provisions.

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 an inability of a child of tender years who is the alleged victim of certain sexual offenses wherein the child's ability to reasonably communicate his or her testimony at the trial of a defendant charged with the offense is precluded and the child is caused serious emotional distress requiring treatment due solely to the child witness being in the physical presence of the defendant in the courtroom while testifying.
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 twelve 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, to a reasonable degree of professional certainty, suffer serious emotional distress requiring psychiatric or psychological treatment and preclude the child from reasonably communicating truthfully based solely upon being required to be in the physical presence of the defendant while testifying;
(3) The use of live, two-way closed-circuit television would substantially enhance the child's ability to communicate truthfully and substantially reduce the possibility that the child witness would suffer serious emotional distress requiring treatment;
(4) The child witness can only reasonably communicate his or her testimony to the court and jury if live, two-way closed-circuit television is used in the trial; and
(5) That the state's ability to proceed against the defendant without the child witness' live testimony would be substantially impaired.
(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 doctoral level licensed 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 communicate truthfully 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 doctoral level 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 defendant shall be visible to the child witness 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.
(d) Failure of a court to comply with the provisions of this article shall obviate any conviction resulting from a trial where the provisions of this article are violated.
§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 twelve 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 a criminal investigation from a child twelve 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 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 any statements made by an alleged child victim in any noninvestigative or therapeutic setting.


NOTE: The purpose of this bill is to 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.