WEST virginia legislature

2016 regular session

Committee Substitute

for

House Bill 4521

By Delegates Cowles and Shott

[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, one-way, closed circuit television; defining terms; expanding the allowance of such closed circuit testimony to other alleged criminal offenses; authorizing use for persons with certain intellectual disabilities; clarifying the use and requirements of one-way closed-circuit television; setting forth findings to be made by the circuit court prior to ordering testimony through live, one-way, 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, one-way, 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, one-way, closed-circuit television;  setting forth the procedures for testimony by live, one-way, closed-circuit television; establishing a location for witness testimony and individuals allowed in the witness room; setting requirements for display in the courtroom; requirements; 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, one-way, closed-circuit television; authorizing the defendant to waive jury instruction regarding use of live, one-way, 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, one-way, 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 such 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 one-way closed-circuit television or other electronic means, between the courtroom and the testimonial room, 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.

(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.

§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.

(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 such expert intends to testify, together with a summary of the grounds for each opinion.  Failure to file such report within the time provided for 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 a 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/or 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.

§62-6B-4 has been completely rewritten; therefore, it has been completely underscored.