H. B. 2273
(By Delegates Manuel, Douglas and Farris)
[Introduced January 27, 1995; referred to the
Committee on the Judiciary.]
A BILL to amend article six, chapter sixty-two of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto three new sections, designated
sections six-a, six-b and six-c, all relating to juveniles
being allowed to testify via closed-circuit television.
Be it enacted by the Legislature of West Virginia:
That article six, chapter sixty-two of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto three new sections, designated sections
six-a, six-b and six-c, all to read as follows:
ARTICLE 6. MISCELLANEOUS PROVISIONS CONCERNING CRIMINAL
PROCEDURES.
§62-6-6a. Juvenile testifying via one-way closed-circuit
television; declaration of traumatization.
A child witness, meaning any person twelve years old or
less, shall be declared traumatized when the court determines by
clear and convincing evidence that it is likely, as a result of
extraordinary circumstances, that such child witness will suffer
mental or emotional harm that is more than de minimis if required
to testify at any proceeding without the use of live, one-way
closed-circuit television and that the use of such live, one-way
closed-circuit television will help prevent, or diminish the
likelihood or extent of, such harm.
When the court declares a child witness to be traumatized,
it shall authorize the taking of the testimony of the traumatized
child witness from the testimonial room by means of live, one-way
closed-circuit television.
Nothing herein shall be construed to preclude the court from
exercising its power to close the courtroom or from exercising
any authority it otherwise may have to protect the well-being of
a witness and the rights of the defendant.
Notwithstanding any other provision of law, any physician,
psychologist, nurse or social worker who has treated a child
witness may testify at a hearing concerning the treatment of such
child witness as such treatment relates to the issue presented at
the hearing: Provided, That any otherwise applicable statutory
privileges concerning communications between the child witness
and such physician, psychologist, nurse or social worker in
connection with such treatment shall not be deemed waived by such
testimony alone, except to the limited extent of permitting the
court alone to examine in camera reports, records or documents,
if any, prepared by such physician, psychologist, nurse or social
worker. If upon such examination the court determines that such
reports, records or documents, or any one or portion thereof,
contain information material and relevant to the issue of whether
the child witness is a traumatized child witness, the court shall
disclose such information to both the attorney for the defendant
and the prosecuting attorney.
§62-6-6b. Factors considered in determining traumatization.
The court may consider, in determining whether there are
such extraordinary circumstances as would cause the child witness to suffer mental or emotional harm that is more than de minimis,
a finding that any one or more of the following factors have been
established by clear and convincing evidence:
(a) The manner of the commission of the offense of which the
defendant is accused was particularly heinous or was
characterized by aggravating circumstances;
(b) The child witness is particularly young or otherwise
particularly subject to psychological harm on account of a
physical or mental condition which existed before the alleged
commission of the offense;
(c) At the time of the alleged offense, the defendant,
occupied a position of authority with respect to the child
witness;
(d) The offense or offenses charged were part of an ongoing
course of conduct committed by the defendant against the child
witness over an extended period of time;
(e) A deadly weapon or dangerous instrument was allegedly
used during the commission of the crime;
(f) The defendant has inflicted serious physical injury upon
the child witness;
(g) A threat, express or implied, of physical violence to
the child witness or a third person if the child witness were to
report the incident to any person or communicate information to
or cooperate with a court, grand jury, prosecutor, police officer
or peace officer concerning the incident has been made by or on
behalf of the defendant;
(h) A threat, express or implied, of the incarceration of a
parent or guardian of the child witness, the removal of the child
witness from the family or the dissolution of the family of the
child witness if the child witness were to report the incident to
any person or communicate information to or cooperate with a
court, grand jury, prosecutor, police officer or peace officer
concerning the incident has been made by or on behalf of the
defendant;
(i) A witness other than the child witness has received a
threat of physical violence directed at such witness or to a
third person by or on behalf of the defendant;
(j) The defendant, at the time of the inquiry: (i) Is living
in the same household with the child witness; (ii) has ready
access to the child witness; or (iii) is providing substantial financial support for the child witness;
(k) According to expert testimony, the child witness would
be particularly susceptible to psychological harm if required to
testify in open court or in the physical presence of the
defendant.
§62-6-6c. Closed-circuit television; procedures; alternate
procedures.
(a) When the court has entered an order, the testimony of
the traumatized child witness shall be taken in the testimonial
room and the image and voice of the traumatized child witness, as
well as the image of all other persons other than the operator
present in the testimonial room, shall be transmitted live by
means of one-way closed-circuit television to the courtroom. In
the discretion of the court, a person may be appointed by the
court to be present in the testimonial room in full view of the
defendant. The courtroom shall be equipped with monitors
sufficient to permit the judge, jury, defendant and attorneys to
observe the demeanor of the traumatized child witness during his
or her testimony. Unless the courtroom has been closed pursuant
to court order, the public shall also be permitted to hear the testimony and view the image of the traumatized child witness.
(b) In all instances, the image of the judge, the image of
the jury, the image of the defendant, the image of the courtroom
or the image of the person examining the traumatized child
witness shall not be transmitted to the traumatized child witness
in the testimonial room.
(c) The operator shall place herself or himself and the
closed-circuit television equipment in a position that permits
the entire testimony of the traumatized child witness to be
transmitted to the courtroom but limits the ability of the
traumatized child witness to see or hear the operator or the
equipment.
(d) The attorney for the defendant and the prosecuting
attorney shall also remain in the courtroom unless the court is
satisfied that his or her presence in the testimonial room will
not impede full and private communication between the defendant
and his or her attorney and will not encourage the jury to draw
an inference adverse to the interest of the defendant.
(e) Upon request of the defendant, the court shall instruct
the jury that they are to draw no inference from the use of live, one-way closed-circuit television in the examination of the
traumatized child witness.
(f) The child witness shall testify under oath and the
examination and cross-examination of the traumatized child
witness shall, in all other respects, be conducted in the same
manner as if the traumatized child witness had testified in the
courtroom.
(g) When the testimony of the traumatized child witness is
transmitted from the testimonial room into the courtroom, the
court stenographer shall record the testimony in the same manner
as if the traumatized child witness had testified in the
courtroom.
NOTE: The purpose of this bill is to permit juveniles to
testify in court under appropriate and controlled circumstances.
§§6a, 6b and 6c are new; therefore, strike-throughs and
underscoring have been omitted.