38-2359. Record by electronic means of testimony of child victim admissible in certain cases, limitations; objections; restrictions.
38-2359
38-2359. Record by electronic means of testimony ofchild victim admissible in certain cases, limitations; objections;restrictions.(a) On motion of the attorney for any party to a proceedingpursuant to theKansas juvenile offenders code in which a child less than 13 years of age isalleged to be a victimof the offense, the court may order that the testimony of the child be taken:
(1) In a room other than the courtroom and be televised by closed-circuitequipment in thecourtroom to be viewed by the court and the finder of fact in the proceeding;or
(2) outside the courtroom and be recorded for showing in the courtroom beforethe court andthe finder of fact in the proceeding if: (A) The recording is both visual andaural and is recorded onfilm or videotape or by other electronic means; (B) the recording equipment iscapable of makingan accurate recording, the operator of the equipment is competent and therecording is accurate andhas not been altered; (C) every voice on the recording is identified; and (D)each party to theproceeding is afforded an opportunity to view the recording before it is shownin the courtroom, anda copy of a written transcript is provided to the parties. The state mustestablish by clear andconvincing evidence that to require the child who is the alleged victim totestify in open court willso traumatize the child as to prevent the child from reasonably communicatingto the jury or renderthe child unavailable to testify. The court shall make such an individualizedfinding before the stateis permitted to proceed under this section.
(b) At the taking of testimony under this section:
(1) Only the attorneys for the juvenile, the state and the child; any personwhose presencewould contribute to the welfare and well-being of the child; and personsnecessary to operate therecording or closed-circuit equipment may be present in the room with the childduring the child'stestimony;
(2) only the attorneys may question the child;
(3) the persons operating the recording or closed-circuit equipment shall beconfined to anadjacent room or behind a screen or mirror that permits them to see and hearthe child during thechild's testimony but does not permit the child to see or hear them; and
(4) the court shall permit the juvenile to observe and hear the testimony ofthe child inperson, but shall ensure that the child cannot hear or see the juvenile.
(c) If the testimony of a child is taken as provided by this section, thechild shall not becompelled to testify in court during the proceeding.
(d) (1) Any objection by any party to the proceeding that the recordingunder subsection (a)(2)is inadmissible must be made by written motion filed with the court at leastseven days before thecommencement of the proceeding. An objection under this subsection shallspecify the portion ofthe recording which is objectionable and the reasons for the objection. Failureto file an objectionwithin the time provided by this subsection shall constitute waiver of theright to object to theadmissibility of the recording unless the court, in its discretion, determinesotherwise.
(2) The provisions of this subsection shall not apply to any objection toadmissibility forthe reason that the recording has been materially altered.
History: L. 2006, ch. 169, § 59; Jan. 1, 2007.