NDAA COMFORT ITEMS COMPILATION (Last updated July 2010)

Transcription

1 NDAA COMFORT ITEMS COMPILATION (Last updated July 2010) This compilation contains legislation, session laws, and codified statues. All statutes, laws, and bills listed in this compilation have been signed by the pertinent governor and enacted into law. This report was complied using State Net, and Lexis Search Services. This compilation is up-to-date as of the month it was created. However, please note we recommend checking both case law and current legislation for any possible modifications to the statutes listed below. TABLE OF CONTENTS TABLE OF CONTENTS...1 ALABAMA...4 ALASKA...4 ARIZONA...4 ARKANSAS...4 CALIFORNIA...4 COLORADO...4 CONNECTICUT...4 DELAWARE...4 DISTRICT OF COLUMBIA...4 FLORIDA...5 FLA. STAT. ANN (2010). JUDICIAL OR OTHER PROCEEDINGS INVOLVING VICTIM OR WITNESS UNDER THE AGE OF 16 OR PERSON WITH MENTAL RETARDATION; SPECIAL PROTECTIONS....5 GEORGIA...5 HAWAII...6 IDAHO...6 ILLINOIS ILL. COMP. STAT. 80/1 (2010). [CHILD WITNESS TRAUMA REDUCTION]...6 INDIANA...6 IOWA...6 KANSAS...6 KENTUCKY...6 KY. REV. STAT. ANN. 26A.140 (2010). ACCOMMODATION OF SPECIAL NEEDS OF CHILDREN....6 LOUISIANA...7 MAINE...7 MARYLAND...7 MASSACHUSETTS...7 1

2 MICHIGAN...7 MINNESOTA...7 MISSISSIPPI...7 MISSOURI...8 MO. REV. STAT (2010). CITATION OF LAW -- DEFINITIONS APPLICABILITY....8 MONTANA...10 NEBRASKA...10 NEVADA...10 NEV. REV. STAT. ANN (2010). ORDER REGARDING TESTIMONY BY ALTERNATIVE METHOD...10 NEW HAMPSHIRE...10 NEW JERSEY...11 NEW MEXICO...11 NEW YORK...11 NORTH CAROLINA...11 NORTH DAKOTA...11 OHIO...11 OKLAHOMA...11 OREGON...11 PENNSYLVANIA...11 RHODE ISLAND...11 SOUTH CAROLINA...12 SOUTH DAKOTA...12 TENNESSEE...12 TEXAS...12 TEX. CODE CRIM. PROC. ANN. ART (2010). TESTIMONY OF CHILD WHO IS VICTIM OF OFFENSE.12 UTAH...17 VERMONT...17 VIRGINIA...17 WASHINGTON...17 WEST VIRGINIA...18 WISCONSIN...18 WYOMING...18 FEDERAL LEGISLATION...18 AMERICAN SAMOA...18 GUAM...18 GUAM CODE ANN. TIT. 8, (2009). CHILD WITNESS COMFORT, AND PROTECTION

3 PUERTO RICO...19 VIRGIN ISLANDS

4 ALABAMA ALASKA ARIZONA ARKANSAS CALIFORNIA COLORADO CONNECTICUT DELAWARE DISTRICT OF COLUMBIA 4

5 FLORIDA FLA. STAT. ANN (2010). Judicial or other proceedings involving victim or witness under the age of 16 or person with mental retardation; special protections. (1) Upon motion of any party, upon motion of a parent, guardian, attorney, or guardian ad litem for a child under the age of 16 or person with mental retardation, or upon its own motion, the court may enter any order necessary to protect a child under the age of 16 or person with mental retardation who is a victim or witness in any judicial proceeding or other official proceeding from severe emotional or mental harm due to the presence of the defendant if the child or person with mental retardation is required to testify in open court. Such orders shall relate to the taking of testimony and shall include, but not be limited to: (a) Interviewing or the taking of depositions as part of a civil or criminal proceeding. (b) Examination and cross-examination for the purpose of qualifying as a witness or testifying in any proceeding. (c) The use of testimony taken outside of the courtroom, including proceedings under ss and (2) In ruling upon the motion, the court shall take into consideration: (a) The age of the child, the nature of the offense or act, the relationship of the child to the parties in the case or to the defendant in a criminal action, the degree of emotional trauma that will result to the child as a consequence of the defendant's presence, and any other fact that the court deems relevant; or (b) The age of the person with mental retardation, the functional capacity of the person with mental retardation, the nature of the offenses or act, the relationship of the person with mental retardation to the parties in the case or to the defendant in a criminal action, the degree of emotional trauma that will result to the person with mental retardation as a consequence of the defendant's presence, and any other fact that the court deems relevant. (3) In addition to such other relief as is provided by law, the court may enter orders limiting the number of times that a child or person with mental retardation may be interviewed, prohibiting depositions of a child or person with mental retardation, requiring the submission of questions prior to examination of a child or person with mental retardation, setting the place and conditions for interviewing a child or person with mental retardation or for conducting any other proceeding, or permitting or prohibiting the attendance of any person at any proceeding. The court shall enter any order necessary to protect the rights of all parties, including the defendant in any criminal action. GEORGIA 5

6 HAWAII IDAHO ILLINOIS 705 ILL. COMP. STAT. 80/1 (2010). [Child witness trauma reduction]. Sec. 1. The Illinois Supreme Court is hereby authorized to establish programs to educate Illinois circuit and associate circuit judges on the techniques and methods of reducing or eliminating the trauma of testifying at trial for children who are witnesses or victims in criminal sexual offense cases. The cost of conducting such programs shall be paid from funds appropriated for that purpose. INDIANA IOWA KANSAS KENTUCKY KY. REV. STAT. ANN. 26A.140 (2010). Accommodation of special needs of children. (1) Courts shall implement measures to accommodate the special needs of children which are not unduly burdensome to the rights of the defendant, including, but not limited to: (a) Trained guardians ad litem or special advocates, if available, shall be appointed for all child victims and shall serve in Circuit and District Courts to offer consistency and support to the child and to represent the child's interests where needed. 6

7 (b) During trials involving child victims or child witnesses, the environment of the courtroom shall be modified to accommodate children through the use of small chairs, frequent breaks, and the use of age appropriate language. (c) Children expected to testify shall be prepared for the courtroom experience by the Commonwealth's or county attorney handling the case with the assistance of the guardian ad litem or special advocate. (d) In appropriate cases, procedures shall be used to shield children from visual contact with alleged perpetrator. (2) The Supreme Court is encouraged to issue rules for the conduct of criminal and civil trials involving child abuse in which a child victim or child witness may testify at the trial. LOUISIANA MAINE MARYLAND MASSACHUSETTS MICHIGAN MINNESOTA MISSISSIPPI 7

8 MISSOURI MO. REV. STAT (2010). Citation of law -- definitions applicability. 1. This section shall be known and may be cited as the "Child Witness Protection Act". 2. As used in this section, the following terms shall mean: (1) "Child", a person fourteen years of age or under, or at the discretion of the court, a person fifteen to seventeen years of age, who is a witness in any judicial proceeding under chapter 452 or 453, RSMo, or the alleged victim or witness in any judicial proceeding under chapter 455, 565, 566, or 568, RSMo. The court shall make written findings on the record when a child fifteen to seventeen years of age is included under this subdivision. "Victim" or "witness" shall not include any child accused of committing a felony; however, these terms may, in the court's discretion, include: (a) A child where such child's participation in a felony appears to have been induced, coerced, or unwilling; or (b) A child who has participated in the felony, but who has subsequently and voluntarily agreed to testify on behalf of the state; (2) "Support person", an adult, designated by the court to serve as a support person, who is known to the child victim or witness and who has no direct legal or pecuniary interest in the outcome of the judicial proceeding. 3. In order to facilitate testimony that is fair and accurate, for the benefit of all parties, and in order to protect all parties from the risks of a child becoming confused while testifying in a judicial proceeding, the following child witness protection act shall apply to all children testifying in court: (1) Whether at a competency hearing or trial itself, the judge shall ensure that any oath that is required of a child shall be administered in such a manner that the child may fully understand his or her duty to tell the truth; (2) The court shall take care to ensure that questions are stated in a form which is appropriate to the age of the child. The court shall explain to the child that if he or she does not understand a question, the child has the right to say that he or she does not understand the question and to have the question restated in a form that the child does understand; (3) In the court's discretion, the taking of testimony from a child victim or witness may be limited in duration or limited to normal school hours. The court may order a recess when the energy, comfort, or attention span of the child warrants; (4) Upon motion made by the child, his or her representative, or any party to the judicial proceeding, at least thirty days in advance of the judicial proceeding, the court may allow the 8

9 child to have a toy, blanket, or similar item in his or her possession while testifying, but such item shall only be allowed if: (a) All parties agree; or (b) If the movant shows the court by a preponderance of evidence that: a. The child in question cannot reliably testify without the item in his or her possession; and b. Allowing the item is not likely to prejudice the trier of fact in hearing and evaluating the child's testimony; (5) Upon motion made by the child, his or her representative, or any party to the judicial proceeding, at least thirty days in advance of the judicial proceeding, the court may designate a support person, who shall be present in the courtroom, in view of the child witness. The court may allow the support person to remain in close proximity to the child during the child's testimony, but such action shall only be allowed if: (a) All parties agree; or (b) If the movant shows the court by a preponderance of the evidence that: a. The child in question cannot reliably testify without the support person in close proximity during the testimony; and b. Allowing the support person to be in close proximity to the child during testimony is not likely to prejudice the trier of fact in hearing and evaluating the child's testimony. The support person shall not obscure the child from the view of the defendant or the trier of fact. A support person shall not provide the child with an answer to any question directed to the child during the course of the child's testimony or otherwise prompt the child or otherwise influence the testimony of the child. If the support person attempts to influence or affect in any manner the testimony of the child victim or witness during the giving of testimony or at any other time, the court shall exclude that support person, refer the matter of misconduct of the support person to the prosecuting attorney, and designate an alternative support person; (6) The court shall prevent intimidation or harassment of the child witness by the parties or their attorneys. Insofar as it is consistent with the constitutional rights of the parties to confront and cross-examine adverse witnesses, the judge may rephrase any questions in order to prevent any such intimidation or harassment; and (7) Upon its own motion or the motion of any party to the judicial proceeding, at least thirty days in advance of the judicial proceeding, the court may order such accommodations as are appropriate under the circumstances to ensure the comfort of the child victim or witness, including the following measures: (a) Adjusting the layout of the courtroom; (b) Conducting the proceedings outside the normal courtroom; or 9

10 (c) Relaxing the formalities of the proceedings; provided that, such measures are consistent with the rights of all parties under the constitution and laws of the United States and the state of Missouri. MONTANA NEBRASKA NEVADA Nev. Rev. Stat. Ann (2010). Order regarding testimony by alternative method. 1. An order allowing or disallowing a child witness to testify by an alternative method must state the findings of fact and conclusions of law that support the presiding officer's determination. 2. An order allowing a child witness to testify by an alternative method must: (a) State the method by which the child is to testify; (b) List any natural person or category of natural person allowed to be in, or required to be excluded from, the presence of the child during the testimony; (c) State any special conditions necessary to facilitate a party's right to examine or crossexamine the child; (d) State any condition or limitation upon the participation of natural persons present during the testimony of the child; and (e) State any other condition necessary for taking or presenting the testimony. 3. The alternative method ordered by the presiding officer may be no more restrictive of the rights of the parties than is necessary under the circumstances to serve the purposes of the order. NEW HAMPSHIRE 10

11 NEW JERSEY NEW MEXICO NEW YORK NORTH CAROLINA NORTH DAKOTA OHIO OKLAHOMA OREGON PENNSYLVANIA RHODE ISLAND 11

12 SOUTH CAROLINA SOUTH DAKOTA TENNESSEE TEXAS TEX. CODE CRIM. PROC. ANN. ART (2010). Testimony of Child Who Is Victim of Offense. Sec. 1. This article applies only to a hearing or proceeding in which the court determines that a child younger than 13 years of age would be unavailable to testify in the presence of the defendant about an offense defined by any of the following sections of the Penal Code: (1) Section (Murder); (2) Section (Capital Murder); (3) Section (Manslaughter); (4) Section (Aggravated Kidnapping); (5) Section (Indecency with a Child); (6) Section (Sexual Assault); (7) Section (Aggravated Assault); (8) Section (Aggravated Sexual Assault); (9) Section 22.04(e) (Injury to a Child, Elderly Individual, or Disabled Individual); (10) Section 22.04(f) (Injury to a Child, Elderly Individual, or Disabled Individual), if the conduct is committed intentionally or knowingly; (11) Section (Prohibited Sexual Conduct); 12

13 (12) Section (Aggravated Robbery); (13) Section (Sexual Performance by a Child); or (14) Section (Continuous Sexual Abuse of Young Child or Children). Sec. 2. (a) The recording of an oral statement of the child made before the indictment is returned or the complaint has been filed is admissible into evidence if the court makes a determination that the factual issues of identity or actual occurrence were fully and fairly inquired into in a detached manner by a neutral individual experienced in child abuse cases that seeks to find the truth of the matter. (b) If a recording is made under Subsection (a) of this section and after an indictment is returned or a complaint has been filed, by motion of the attorney representing the state or the attorney representing the defendant and on the approval of the court, both attorneys may propound written interrogatories that shall be presented by the same neutral individual who made the initial inquiries, if possible, and recorded under the same or similar circumstances of the original recording with the time and date of the inquiry clearly indicated in the recording. (c) A recording made under Subsection (a) of this section is not admissible into evidence unless a recording made under Subsection (b) is admitted at the same time if a recording under Subsection (b) was requested prior to the time of the hearing or proceeding. Sec. 3. (a) On its own motion or on the motion of the attorney representing the state or the attorney representing the defendant, the court may order that the testimony of the child be taken in a room other than the courtroom and be televised by closed circuit equipment in the courtroom to be viewed by the court and the finder of fact. To the extent practicable, only the judge, the court reporter, the attorneys for the defendant and for the state, persons necessary to operate the equipment, and any person whose presence would contribute to the welfare and well-being of the child may be present in the room with the child during his testimony. Only the attorneys and the judge may question the child. To the extent practicable, the persons necessary to operate the equipment shall be confined to an adjacent room or behind a screen or mirror that permits them to see and hear the child during his testimony, but does not permit the child to see or hear them. The court shall permit the defendant to observe and hear the testimony of the child and to communicate contemporaneously with his attorney during periods of recess or by audio contact, but the court shall attempt to ensure that the child cannot hear or see the defendant. The court shall permit the attorney for the defendant adequate opportunity to confer with the defendant during cross-examination of the child. On application of the attorney for the defendant, the court may recess the proceeding before or during cross-examination of the child for a reasonable time to allow the attorney for the defendant to confer with defendant. (b) The court may set any other conditions and limitations on the taking of the testimony that it finds just and appropriate, taking into consideration the interests of the child, the rights of the defendant, and any other relevant factors. Sec. 4. (a) After an indictment has been returned or a complaint filed, on its own motion or on the motion of the attorney representing the state or the attorney representing the defendant, the court may order that the testimony of the child be taken outside the courtroom and be recorded for showing in the courtroom before the court and the finder of fact. To the extent practicable, only those persons permitted to be present at the taking of testimony under Section 3 of this article 13

14 may be present during the taking of the child's testimony, and the persons operating the equipment shall be confined from the child's sight and hearing as provided by Section 3. The court shall permit the defendant to observe and hear the testimony of the child and to communicate contemporaneously with his attorney during periods of recess or by audio contact but shall attempt to ensure that the child cannot hear or see the defendant. (b) The court may set any other conditions and limitations on the taking of the testimony that it finds just and appropriate, taking into consideration the interests of the child, the rights of the defendant, and any other relevant factors. The court shall also ensure that: (1) the recording is both visual and aural and is recorded on film or videotape or by other electronic means; (2) the recording equipment was capable of making an accurate recording, the operator was competent, the quality of the recording is sufficient to allow the court and the finder of fact to assess the demeanor of the child and the interviewer, and the recording is accurate and is not altered; (3) each voice on the recording is identified; (4) the defendant, the attorneys for each party, and the expert witnesses for each party are afforded an opportunity to view the recording before it is shown in the courtroom; (5) before giving his testimony, the child was placed under oath or was otherwise admonished in a manner appropriate to the child's age and maturity to testify truthfully; (6) the court finds from the recording or through an in camera examination of the child that the child was competent to testify at the time the recording was made; and (7) only one continuous recording of the child was made or the necessity for pauses in the recordings or for multiple recordings is established at the hearing or proceeding. (c) After a complaint has been filed or an indictment returned charging the defendant, on the motion of the attorney representing the state, the court may order that the deposition of the child be taken outside of the courtroom in the same manner as a deposition may be taken in a civil matter. A deposition taken under this subsection is admissible into evidence. Sec. 5. (a) On the motion of the attorney representing the state or the attorney representing the defendant and on a finding by the court that the following requirements have been substantially satisfied, the recording of an oral statement of the child made before a complaint has been filed or an indictment returned is admissible into evidence if: (1) no attorney or peace officer was present when the statement was made; (2) the recording is both visual and aural and is recorded on film or videotape or by other electronic means; (3) the recording equipment was capable of making an accurate recording, the operator of the equipment was competent, the quality of the recording is sufficient to allow the court and the 14

15 finder of fact to assess the demeanor of the child and the interviewer, and the recording is accurate and has not been altered; (4) the statement was not made in response to questioning calculated to lead the child to make a particular statement; (5) every voice on the recording is identified; (6) the person conducting the interview of the child in the recording is expert in the handling, treatment, and investigation of child abuse cases, present at the hearing or proceeding, called by the state, and subject to cross-examination; (7) immediately after a complaint was filed or an indictment returned, the attorney representing the state notified the court, the defendant, and the attorney representing the defendant of the existence of the recording; (8) the defendant, the attorney for the defendant, and the expert witnesses for the defendant were afforded an opportunity to view the recording before it is offered into evidence and, if a proceeding was requested as provided by Subsection (b) of this section, in a proceeding conducted before a district court judge but outside the presence of the jury were afforded an opportunity to cross-examine the child as provided by Subsection (b) of this section from any time immediately following the filing of the complaint or the returning of an indictment charging the defendant until the date the hearing or proceeding begins; (9) the recording of the cross-examination, if there is one, is admissible under Subsection (b) of this section; (10) before giving his testimony, the child was placed under oath or was otherwise admonished in a manner appropriate to the child's age and maturity to testify truthfully; (11) the court finds from the recording or through an in camera examination of the child that the child was competent to testify at the time that the recording was made; and (12) only one continuous recording of the child was made or the necessity for pauses in the recordings or for multiple recordings has been established at the hearing or proceeding. (b) On the motion of the attorney representing the defendant, a district court may order that the cross-examination of the child be taken and be recorded before the judge of that court at any time until a recording made in accordance with Subsection (a) of this section has been introduced into evidence at the hearing or proceeding. On a finding by the court that the following requirements were satisfied, the recording of the cross-examination of the child is admissible into evidence and shall be viewed by the finder of fact only after the finder of fact has viewed the recording authorized by Subsection (a) of this section if: (1) the recording is both visual and aural and is recorded on film or videotape or by other electronic means; (2) the recording equipment was capable of making an accurate recording, the operator of the equipment was competent, the quality of the recording is sufficient to allow the court and the 15

16 finder of fact to assess the demeanor of the child and the attorney representing the defendant, and the recording is accurate and has not been altered; (3) every voice on the recording is identified; (4) the defendant, the attorney representing the defendant, the attorney representing the state, and the expert witnesses for the defendant and the state were afforded an opportunity to view the recording before the hearing or proceeding began; (5) the child was placed under oath before the cross-examination began or was otherwise admonished in a manner appropriate to the child's age and maturity to testify truthfully; and (6) only one continuous recording of the child was made or the necessity for pauses in the recordings or for multiple recordings was established at the hearing or proceeding. (c) During cross-examination under Subsection (b) of this section, to the extent practicable, only a district court judge, the attorney representing the defendant, the attorney representing the state, persons necessary to operate the equipment, and any other person whose presence would contribute to the welfare and well-being of the child may be present in the room with the child during his testimony. Only the attorneys and the judge may question the child. To the extent practicable, the persons operating the equipment shall be confined to an adjacent room or behind a screen or mirror that permits them to see and hear the child during his testimony but does not permit the child to see or hear them. The court shall permit the defendant to observe and hear the testimony of the child and to communicate contemporaneously with his attorney during periods of recess or by audio contact, but shall attempt to ensure that the child cannot hear or see the defendant. (d) Under Subsection (b) of this section the district court may set any other conditions and limitations on the taking of the cross-examination of a child that it finds just and appropriate, taking into consideration the interests of the child, the rights of the defendant, and any other relevant factors. Sec. 6. If the court orders the testimony of a child to be taken under Section 3 or 4 of this article or if the court finds the testimony of the child taken under Section 2 or 5 of this article is admissible into evidence, the child may not be required to testify in court at the proceeding for which the testimony was taken, unless the court finds there is good cause. Sec. 7. In making any determination of good cause under this article, the court shall consider the rights of the defendant, the interests of the child, the relationship of the defendant to the child, the character and duration of the alleged offense, any court finding related to the availability of the child to testify, the age, maturity, and emotional stability of the child, the time elapsed since the alleged offense, and any other relevant factors. Sec. 8. (a) In making a determination of unavailability under this article, the court shall consider relevant factors including the relationship of the defendant to the child, the character and duration of the alleged offense, the age, maturity, and emotional stability of the child, and the time elapsed since the alleged offense, and whether the child is more likely than not to be unavailable to testify because: (1) of emotional or physical causes, including the confrontation with the defendant; or 16

17 (2) the child would suffer undue psychological or physical harm through his involvement at the hearing or proceeding. (b) A determination of unavailability under this article can be made after an earlier determination of availability. A determination of availability under this article can be made after an earlier determination of unavailability. Sec. 9. If the court finds the testimony taken under Section 2 or 5 of this article is admissible into evidence or if the court orders the testimony to be taken under Section 3 or 4 of this article and if the identity of the perpetrator is a contested issue, the child additionally must make an in-person identification of the defendant either at or before the hearing or proceeding. Sec. 10. In ordering a child to testify under this article, the court shall take all reasonable steps necessary and available to minimize undue psychological trauma to the child and to minimize the emotional and physical stress to the child caused by relevant factors, including the confrontation with the defendant and the ordinary participation of the witness in the courtroom. Sec. 11. In a proceeding under Section 2, 3, or 4 or Subsection (b) of Section 5 of this article, if the defendant is not represented by counsel and the court finds that the defendant is not able to obtain counsel for the purposes of the proceeding, the court shall appoint counsel to represent the defendant at the proceeding. Sec. 12. In this article, "cross-examination" has the same meaning as in other legal proceedings in the state. Sec. 13. The attorney representing the state shall determine whether to use the procedure provided in Section 2 of this article or the procedure provided in Section 5 of this article. UTAH VERMONT VIRGINIA WASHINGTON 17

18 WEST VIRGINIA WISCONSIN WYOMING FEDERAL LEGISLATION/ U.S. TERRITORIES FEDERAL LEGISLATION AMERICAN SAMOA GUAM GUAM CODE ANN. TIT. 8, (2009). Child Witness Comfort, and Protection. Notwithstanding any other provision of law, at any criminal proceeding in which a minor under the age of 18 is a prosecuting witness, the court shall take special precautions to provide for the comfort and support of the minor and to protect the minor from coercion, intimidation or undue influence as a witness. 18

19 PUERTO RICO VIRGIN ISLANDS 19