ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 34
(Senators Kessler, Sharpe, Minear, McKenzie, Hunter,
Ross, Edgell, Mitchell, Anderson, Burnette, Boley and Rowe, original
sponsors)
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[Passed April 13, 2001; in effect ninety days from passage.]
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AN ACT 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
the protection and preservation of statements and testimony
of child witnesses; allowing and providing procedures for
taking the testimony of a child witness by using live, two-
way closed-circuit television; setting forth legislative
findings; defining certain terms; prescribing findings of
fact required for taking testimony of child witness through
use of live two-way closed-circuit television; describing
procedures for taking testimony of child witness; requiring certain jury instructions; and providing for the
memorialization of statements made by alleged child victims
of sexual assault or sexual abuse.
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. PROTECTION AND PRESERVATION OF STATEMENTS AND
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 because a child
who is alleged to be the victim of certain offenses is unable to
testify while in the physical presence of the defendant in the
courtroom.
The Legislature further finds that the constitutional right
of the accused to be confronted with the witnesses against him or
her must be protected and that this constitutional guarantee can
be protected while, at the same time, allowing a child to testify
outside of the physical presence of a defendant in the courtroom.
The Legislature further finds that a child, 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.
For the purposes of this article, the words or terms defined
in this section, and any variation of those words or terms
required by the context, have the meanings ascribed to them in
this section. These definitions are applicable unless a
different meaning clearly appears from the context.
(1) "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.
(2) "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.
(3) "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.
(4) "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 licensed
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. Memorialization of statements of certain child
witnesses; admissibility; hearing.
(a) 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 or while engaged in an active criminal investigation
as a law-enforcement officer or an agent of a prosecuting attorney, obtains a statement 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, he or she shall forthwith make a contemporaneous
written notation and recitation of the statement received or
obtained. An audio recording or video recording with sound
capability of the statement may be used in lieu of the written
recitation required by the provisions of this section. Failure
to comply with the provisions of this section creates a
presumption that the statement is inadmissible. The statement
may be admitted if, after a hearing on the matter, the court
finds by clear and convincing evidence that the failure to comply
with the provisions of this section was a good faith omission and
that the content of the proffered statement is an accurate
recital of the information provided by the child and is otherwise
admissible.
(b) The provisions of this section shall not apply to:
(1) Persons engaged in investigation pursuant to the
provisions of article six or seven, chapter forty-nine of this
code;
(2) Medical personnel and other persons performing a forensic medical examination of a child who is an alleged victim;
and
(3) Prosecuting attorneys when counseling with a child in
preparation for eliciting the child's testimony in court.