H. B. 4854
(
By Delegates Morgan, Craig, Webster, Hamilton, Howard, Pino,
Moore, DeLong, Ellem, Long, Hrutkay)
(Originating in the Committee on the Judiciary)
[February 27, 2006]
A BILL to amend and reenact §62-6B-3 of the Code of West Virginia,
1931, as amended, relating to expert opinions of licensed
psychologists in treatment and evaluation of children and
taking testimony of child witness though use of live two-way
closed circuit television.
Be it enacted by the Legislature of West Virginia:
That §62-6B-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 6B. PROTECTION AND PRESERVATION OF STATEMENTS AND
TESTIMONY OF CHILD WITNESS.
§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.
NOTE: The purpose of this bill is to remove the restriction
that only a doctoral-level psychologist may serve as a court
appointed licensed psychologist advisor to provide an expert
opinion on the evaluation of children and taking testimony of
child witness through use of live two-way closed-circuit
television. The bill does not change the current allowance of a
psychiatrist or licensed clinical social worker to perform this
court appointed professional function.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.