(a) Upon a written motion filed by the prosecuting attorney, the child's attorney or the child's guardian ad litem, 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, 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 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, 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, 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 as well as any prejudice to the defendant by allowing testimony through closed-circuit television;
(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, closed-circuit television the court shall appoint a
psychiatrist or a licensed psychologist with at least five years
clinical experience 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 or licensed psychologist shall be filed with the
circuit court at least thirty days prior to the final hearing on
the use of live, 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: WV Code updated with legislation passed through the 2013 1st Special Session
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