SB461 H JUD AM 4-10 #1
The House Judiciary Committee moves to amend the bill on page
three, following the enacting clause, by striking out the remainder
of the bill and inserting in lieu thereof the following language:
"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 thirteen years of age or
less under the age of sixteen years of age 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, chapter sixty-one of this code in which the child is the
alleged victim.
(2) "Live, two-way closed-circuit television" means a
simultaneous transmission, by closed-circuit television or other
electronic means, between the courtroom and the testimonial room.
(3) "Operator" means the individual authorized by the court to
operate the two-way 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, two-way 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 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, two-way closed-circuit television.
(b) Prior to ordering that the testimony of a child witness
may be taken through the use of live, two-way 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, two-way 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, two-way 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, two-way closed-circuit television the court shall
appoint a psychiatrist or a licensed psychologist with at least
five years clinical experience or a licensed clinical social worker
with at least five years of significant clinical experience in the
treatment and evaluation of children 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 or
licensed clinical social worker shall be filed with the circuit
court at least thirty days prior to the final hearing on the use of
live, two-way 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.
§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, two-way 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 two-way 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, two-
way 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.