Bill Text: WV HB2465 | 2017 | Regular Session | Comm Sub
Bill Title: Modifying the requirements that allow a child witness to testify by closed circuit television
Spectrum: Partisan Bill (Republican 2-0)
Status: (Engrossed - Dead) 2017-02-24 - To Judiciary [HB2465 Detail]
Download: West_Virginia-2017-HB2465-Comm_Sub.html
WEST virginia legislature
2017 regular session
Committee Substitute
for
House Bill 2465
By Delegate Cowles
[Originating in the Committee on the Judiciary]
A BILL to amend and reenact §62-6B-2, §62-6B-3 and §62-6B-4 of the Code of West Virginia, 1931, as amended, all relating to modifying the requirements that allow a child witness to testify by live, closed circuit television; defining terms; expanding the allowance of closed circuit testimony to other alleged criminal offenses; authorizing use for persons with certain intellectual disabilities; clarifying the use and requirements of closed-circuit television; granting the court discretion to allow testimony via live, closed circuit television; granting court discretion to decide whether it be through one-way or two-way closed-circuit television; setting forth findings to be made by the circuit court prior to ordering testimony through live, closed circuit television; granting the court discretion to appoint a psychiatrist, licensed psychologist or licensed social worker to provide an expert opinion regarding the factors and findings to be made by the court in deciding whether to order testimony through live, closed circuit television; requiring court-appointed expert witness to provide written report within established deadline; providing for the effect of failure to comply with filing deadline; revising the procedures required for taking testimony of child witness by live, closed-circuit television; setting forth the procedures for testimony by live, closed-circuit television; establishing a location for witness testimony and individuals allowed in the witness room; setting requirements for display in the courtroom; providing who may question the child witness and the procedures therefor; providing for requirement of electronic means for defendant to confer with counsel during the taking of the testimony; providing for instruction to jury regarding use of live, closed-circuit television; authorizing the defendant to waive jury instruction regarding use of live, closed-circuit television; prohibiting counsel from making comments in the presence of the jury; authorizing the court to establish measures for the physical safety of the child witness and for the confidentiality of sensitive information; authorizing the court to allow accommodations for child witness testimony in court rather than by live, closed-circuit television; authorizing the allowance of a toy, blanket or similar item to be in possession of child witness while testifying; authorizing the allowance of a designated support person and seating of the support person in the courtroom; and providing requirements for allowance of a designated support person by motion.
Be it enacted by the Legislature of West Virginia:
That §62-6B-2, §62-6B-3 and §62-6B-4 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 6B. PROTECTION AND PRESERVATION OF STATEMENTS AND TESTIMONY OF CHILD WITNESS.
§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 under the age of sixteen years of age or
who has an intellectual disability that causes the person to function under the
age of sixteen, 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, article eight-c, or article eight-d of
chapter sixty-one of this code in which the child is the alleged victim.
(2) "Live, closed-circuit television" means a simultaneous transmission, by closed-circuit television or other electronic means, between the courtroom and the testimonial room. The transmission may be either (A) one-way, such that the witness is visible on monitors in the courtroom, but the courtroom and the defendant are not visible to the witness in the testimonial room, or (B) two-way, such that the witness is visible on monitors in the courtroom, and the courtroom and the defendant are visible to the witness in the testimonial room,
(3) "Operator" means the individual authorized by the court to operate the 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, closed-circuit television.
(5) “Interviewed child” shall mean means
any person under the age of eighteen who has been interviewed by means of any
type of recording equipment in connection with alleged criminal behavior or
allegations of abuse or neglect of any child under the age of eighteen.
(6) “Recorded interview” means any electronic recording of the interview, and any transcript thereof, of an interviewed child conducted by: (1) An employee or representative of a child advocacy center as that term is defined in section one hundred one, article three, chapter forty-nine of this code; (2) any psychologist, psychiatrist, physician, nurse, social worker or other person appointed by the court to interview the interviewed child as provided in subsection (c), section three of this article; or (3) a child protective services worker, law-enforcement officer, prosecuting attorney or any representative of his or her office, or any other person investigating allegations of criminal behavior or behavior alleged to constitute abuse or neglect of a child.
§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 of 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. The decision to allow such
testimony via live, closed circuit, including whether it be through one-way or
two-way closed-circuit television, shall be in the discretion of the court: Provided,
That in any order granting child witness testimony through live, closed circuit
television, the Court shall contain findings of fact in support of such
decision.
(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 is otherwise competent to testify;
(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
The use of live, closed circuit television is necessary to protect the welfare of the particular child witness who seeks to testify;
(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
(3) Requiring the child witness to testify in the physical presence of the defendant would result in substantial emotional distress to the child which would impair the ability of the child witness to truthfully and effectively communicate; and
(4) The emotional distress which would be suffered by the child witness in the presence of the defendant is more than nervousness, excitement or general reluctance to testify.
(c) The court shall may
additionally 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; and
(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) (3) 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 may 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 or a licensed clinical social worker with at least
five years of significant clinical experience in the treatment and evaluation
of children for the purpose of providing the court with an expert opinion
regarding the factors set forth in subsection (b) and (c) above.
(e) Not less than thirty days prior to the evidentiary hearing provided for in subsection (b) above, the expert witness appointed by the court shall file with the court a written report outlining the substance of the facts and opinions to which the expert intends to testify, together with a summary of the grounds for each opinion. Failure to file the report within the time provided does not constitute grounds for a denial of the motion for taking the testimony of the child witness by closed-circuit television, but may, in the discretion of the court, constitute grounds for a continuance of the evidentiary hearing.
§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; additional accommodation options; recordings and confidentiality.
(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,
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
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, 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.
(a) If live, 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 closed-circuit equipment to the view of the defendant, counsel, the court and, if applicable, the jury. The live, closed circuit television testimony shall be presented to the jury such that the jury has a clear image of the witness and all counsel present in the testimonial room. The prosecuting attorney, the attorney for the defendant, the attorney for the child and the operator of the equipment may be present in the room with the child witness during testimony. The court may authorize the presence of other persons in the testimonial room upon good cause shown.
(b) Only the court, the prosecuting attorney and the attorney for the defendant may question the child. In proceedings where the defendant has elected to proceed pro se, the court shall appoint an attorney to represent the defendant for the limited purpose of questioning the child witness. 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.
(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, 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. Counsel is prohibited from commenting in the presence of the jury upon the decision to utilize closed circuit television.
(d) If the child is an alleged victim, the court shall ensure that all steps necessary to secure the physical safety of the child while in the courtroom, the testimonial room, and during periods of time that the child may spend waiting prior or subsequent to testifying have been taken.
(e) The court shall take all steps necessary to ensure that any sensitive information, including address or physical location of the child witness and, if applicable, the immediate family of the child witness, remains confidential.
(f) The court may, upon motion made by the child's representative or any party to the proceeding and upon a finding by the court that the accommodation will assist the child witness in testifying effectively and that the accommodation will not cause unfair prejudice, grant the following accommodations to a child witness who testifies in court rather than by live, closed circuit television;
(1) The court may allow the child witness to have a toy, blanket or similar item in his or her possession while testifying; and
(2) The court may designate a support person, who shall be seated in the courtroom, in view of the child witness either at one of the counsel tables, in the first row of seating for the general public or in some other similar seating location. The support person may not provide the child with an answer to any question directed to the child witness during the course of the child's testimony or otherwise prompt the child or influence the testimony of the child witness. If the support person attempts to influence the testimony of the child witness at any time the court may exclude that support person. If the support person does not obscure the child witness from the view of the parties, the judge or the jury, the court may allow the support person to remain in close proximity to the child witness during the child's testimony if:
(A) All the parties agree; or
(B) The movant proves by clear and convincing evidence that:
(i) The child witness in question cannot reliably testify without the support person in his or her presence;
(ii) No other alternative to having the support person in his or her presence would allow the child witness to reliably testify; and
(iii) The presence of the support person is not likely to prejudice the trier of fact in hearing and evaluating the child witness's testimony.
NOTE: The purpose of this bill is to modify the requirements that allow a child witness to testify by closed circuit television.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.