22-3434. Videotape of testimony of child victim admissible in certain cases; limitations; standard of proof; objections, restrictions.
22-3434
22-3434. Videotape of testimony of child victim admissible in certaincases; limitations; standard of proof; objections, restrictions.(a) On motion of the attorney for any party to a criminalproceeding in which a child less than 13 years of age is alleged to be avictim of the crime, subject to the conditions of subsection (b), thecourt may order that the testimony of the child be taken:
(1) In a room other than the courtroom and be televised byclosed-circuit equipment in the courtroom to be viewed by the court and thefinder of fact in the proceeding; or
(2) outside the courtroom and be recorded for showing in the courtroombefore the court and the finder of fact in the proceeding if: (A) Therecording is both visual and aural and is recorded on film or videotape orby other electronic means; (B) the recording equipment is capable of makingan accurate recording, the operator of the equipment is competent and therecording is accurate and has not been altered; (C) every voice on therecording is identified; and (D) each party to the proceeding is affordedan opportunity to view the recording before it is shown in the courtroom,and a copy of a written transcript is provided to the parties.
(b) The state must establish by clear and convincing evidence that torequire the child who is the alleged victim to testify in open court willso traumatize the child as to prevent the child from reasonablycommunicating to the jury or render the child unavailable to testify. Thecourt shall make such an individualized finding before the state ispermitted to proceed under this section.
(c) At the taking of testimony under this section:
(1) Only the attorneys for the defendant, the state and the child, anyperson whose presence would contribute to the welfare and well-being of thechild and persons necessary to operate the recording or closed-circuitequipment may be present in the room with the child during the child'stestimony;
(2) only the attorneys may question the child;
(3) the persons operating the recording or closed-circuit equipmentshall be confined to an adjacent room or behind a screen or mirror thatpermits them to see and hear the child during the child's testimony butdoes not permit the child to see or hear them; and
(4) the court shall permit the defendant to observe and hear thetestimony of the child in person, but shall ensure that the child cannothear or see the defendant.
(d) If the testimony of a child is taken as provided by this section,the child shall not be compelled to testify in court during the proceeding.
(e) (1) Any objection by any party to the proceeding to a recording undersubsection (a)(2) is inadmissible must be made by written motion filed withthe court at least seven days before the commencement of the trial.An objection under this subsection shall specify theportion of the recording which is objectionable and the reasons for theobjection. Failure to file an objection within the time provided by thissubsection shall constitute waiver of the right to object to theadmissibility of the recording unless the court, in its discretion, determinesotherwise.
(2) The provisions of this subsection (d) shall not apply to anyobjection to admissibility for the reason that the recording has beenmaterially altered.
History: L. 1985, ch. 112, § 4;L. 1986, ch. 135, § 2; L. 1986, ch. 119, § 4;L. 1990, ch. 110, § 1; July 1.