FISCAL
NOTE
WEST virginia Legislature
2017 regular session
By
[
to 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 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; 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 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 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.
(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.
(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 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.