COMMITTEE SUBSTITUTE
FOR
H. B. 2273
(By Delegates Douglas, Manuel, Farris and Jenkins)
(Originating in the Committee on the Judiciary)
[March 11, 1997]
A BILL to amend chapter sixty-two of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article six-b, relating to
the testimony of a child witness by using live, closed- circuit television; definitions; requisite findings of fact;
procedure for taking testimony; election of defendant
between procedures; and jury instruction.
Be it enacted by the Legislature of West Virginia:
That chapter sixty-two of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article six-b, to read
as follows:
ARTICLE 6B. TESTIMONY OF CHILD WITNESS.
§62-6B-1. Definitions.
(a) "Child witness" means a person under the age of twelve
who is an alleged victim of abuse or of a sexual offense and who
is or will be called to testify in a criminal proceeding
concerning that abuse or that offense.
(b) "Live, closed-circuit television" means a simultaneous
transmission, by closed-circuit television, or other electronic
means, between the courtroom and the testimonial room.
(c) "Operator" means the individual authorized by the court
to operate the closed-circuit television equipment used in
accordance with the provisions of this article.
(d) "Testimonial room" means a room 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-2. Findings of fact required for taking testimony of
child witness by closed-circuit television.
(a) Upon a written motion filed by the prosecuting attorney
or an assistant 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 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 trial court must find by clear and convincing evidence, after
conducting an evidentiary hearing on this issue, that:
(1) The child witness is an otherwise competent witness;
(2) The child witness will suffer psychological trauma if
required to testify in the presence of the defendant, and not
merely from being required to testify in a courtroom generally;
(3) The trauma would be more than mere anxiety or reluctance
to testify on the part of the child witness;
(4) The trauma would impair the ability of the child witness
to testify truthfully; and
(5) The use of live, closed-circuit television reasonably is
necessary to assure the truthfulness of the testimony of the
child witness and to protect the welfare of the child witness.
§62-6B-3. Procedures required for taking testimony of child
witness by closed-circuit television; election of
defendant; jury instruction.
(a) The procedures by which the testimony of the child
witness may be taken by the use of live, closed-circuit
television are prescribed by subsection (b) of this section.
Within a reasonable period of time prior to the commencement of
the proceeding at which the testimony will be taken, to be
determined by the court, the defendant may elect either of the
procedures for taking the testimony which are described in
subdivisions (1) and (2), subsection (b) of this section. Upon
making the election, the procedure elected by the defendant shall
be followed by the court. In the event the defendant fails to
elect within the period of time determined by the court, the
court shall select one of the two procedures described in
subdivision (b) of this subsection.
(b)(1) The defendant or the court, to be determined pursuant
to the provisions of subsection (a) of this section, may select
the procedure described in this subdivision for taking the
testimony of the child witness by the use of live, closed-circuit
television. The child witness shall be taken into the
testimonial room and be televised live, by closed-circuit equipment to the view of the finder of fact and others present in
the courtroom to whom a view of the child witness is determined
by the court to be necessary. Only the prosecuting attorney or
an assistant prosecuting attorney, the attorney for the
defendant, the operator of the equipment, and a neutral
nonwitness whose presence the court finds would materially
contribute to the child's ability to testify may be present in
the room with the child witness during testimony. Only the
court, the prosecuting attorney or an assistant 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 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. During the
taking of the testimony, the view of the finder of fact shall be
transmitted to the child witness.
(2) The defendant or the court, to be determined pursuant to
the provisions of subsection (a) of this section, may select the
procedure described in this subdivision for taking the testimony
of the child witness by the use of live, closed-circuit
television. The defendant shall be taken into the testimonial room and be televised live, by 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. While the
defendant is in the testimonial room, the defendant shall be
permitted to view the live, televised image of those in the
courtroom whom the court determines the defendant is entitled to
view. Only the court, the prosecuting attorney or an assistant
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 a manner as to cause as little
psychological trauma 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 contemporaneously 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
in the testimonial room. The defendant may elect whether his or
her attorney will remain in the courtroom or go to the
testimonial room with the defendant. In the event the defendant
elects that his or her attorney remain in the courtroom while the
defendant is in the testimonial room, the court shall provide
electronic means for the defendant and his or her attorney to
confer confidentially during the taking of the testimony.
(c) In an instance when a child witness testifies pursuant to the procedures allowed in this article, the court shall
instruct the jury that it is not to give any different weight to
the testimony of a child witness by closed-circuit television
than it would give such testimony had it been taken in the
courtroom.
NOTE: The purpose of this bill is to set forth exceptions
to the standard court procedures in certain cases of testimony by
a child witness by using live, closed-circuit television. The
bill sets up procedures for taking testimony; election of
defendant between procedures; and jury instruction.
This article is new; therefore strike-throughs and
underscoring have been omitted.