NEW YORK
(applies to grand jury only)
NY CLS CPL § 190.30 (2003)
§ 190.30. Grand jury; rules of evidence
4. An examination of a child witness or a special witness by the district attorney videotaped pursuant to section 190.32 of this chapter may be received in evidence in such grand jury proceeding as the testimony of such witness.

NYCLS CPL§ 190.25(2003)
Grand jury; proceedings and operation in general

CRIMES: Any sexual offense; endangering a child's welfare; incest; assault; manslaughter; murder.

3. Except as provided in subdivision three-a of this section, during the deliberations and voting of a grand jury, only the grand jurors may be present in the grand jury room. During its other proceedings, the following persons, in addition to witnesses, may, as the occasion requires, also be present:

(b) A clerk or other public servant authorized to assist the grand jury in the administrative conduct of its proceedings;

(d) An interpreter. Upon request of the grand jury, the prosecutor must provide an interpreter to interpret the testimony of any witness who does not speak the English language well enough to be readily understood. Such interpreter must, if he has not previously taken the constitutional oath of office, first take an oath before the grand jury that he will faithfully interpret the testimony of the witness and that he will keep secret all matters before such grand jury within his knowledge;

(e) A public servant holding a witness in custody. When a person held in official custody is a witness before a grand jury, a public servant assigned to guard him during his grand jury appearance may accompany him in the grand jury room. Such public servant must, if he has not previously taken the constitutional oath of office, first take an oath before the grand jury that he will keep secret all matters before it within his knowledge.

(f) An attorney representing a witness pursuant to section 190.52 of this chapter while that witness is present.

(g) An operator, as that term is defined in section 190.32 of this chapter, while the videotaped examination of either a special witness or a child witness is being played.

(h) A social worker, rape crisis counselor, psychologist or other professional providing emotional support to a child witness twelve years old or younger who is called to give evidence in a grand jury proceeding concerning a crime defined in article one hundred thirty, article two hundred sixty, section 120.10, 125,10,125.15,125.20,125.25,125.27 or 255.25 of the penal law provided that the district attorney consents. Such support person shall not provide the witness with an answer to any question or otherwise participate in such proceeding and shall first take an oath before the grand jury that he or she will keep secret all matters before such grand jury within his or her knowledge.

3-a. Upon the request of a deaf or hearing-impaired grand juror, the prosecutor shall provide a sign language interpreter for such juror. Such interpreter shall be present during all proceedings of the grand jury which the deaf or hearing-impaired grand juror attends, including deliberation and voting.

The interpreter shall, if he or she has not previously taken the constitutional oath of office, first take an oath before the grand jury that he or she will faithfully interpret the testimony of the witnesses and the statements of the prosecutor, judge and grand jurors; keep secret all matters before such grand jury within his or her knowledge; and not seek to influence the deliberations and voting of such grand jury.

4. (a) Grand jury proceedings are secret, and no grand juror, or other person specified in subdivision three of this section or section 215.70 of the penal law, may, except in the lawful discharge of his duties or upon written order of the court, disclose the nature or substance of any grand jury testimony, evidence, or any decision, result or other matter attending a grand jury proceeding. For the purpose of assisting the grand jury in conducting its investigation, evidence obtained by a grand jury may be independentiy examined by the district attorney, members of his staff, police officers specifically assigned to the investigation, and such other persons as the court may specifically authorize. Such evidence may not be disclosed to other persons without a court order. Nothing contained herein shall prohibit a witness from disclosing his own testimony.

(b) When a district attorney obtains evidence during a grand jury proceeding which provides reasonable cause to suspect that a child has been abused or maltreated, as those terms are defined by section ten hundred twelve of the family court act, he must apply to the court supervising the grand jury for an order permitting disclosure of such evidence to the state central register of child abuse and maltreatment. A district attorney need not apply to the court for such order if he has previously made or caused a report to be made to the state central register of child abuse and maltreatment pursuant to section four hundred thirteen of the social services law and the evidence obtained during the grand jury proceeding, or substantially similar information, was included in such report. The district attorney's application to the court shall be made ex parte and in camera. The court must grant the application and permit the district attorney to disclose the evidence to the state central register of child abuse and maltreatment unless the court finds that such disclosure would jeopardize the life or safety of any person or interfere with a continuing grand jury proceeding.

5. The grand jury is the exclusive judge of the facts with respect to any matter before it.

6. The legal advisors of the grand jury are the court and the district attorney, and the grand jury may not seek or receive legal advice from any other source. Where necessary or appropriate, the court or the district attorney, or both, must instruct the grand jury concerning the law with respect to its duties or any matter before it, and such instructions must be recorded in the minutes.

NY CLS Family Ct Act § 1038 (2003)
(allows videotaped expert interviews of children))
Records and discovery involving abuse and neglect

APPLICABILITY: Any child who is the subject of the proceeding (re: sexual abuse). TEXT:

(a) Each hospital and any other public or private agency having custody of any records, photographs or

other evidence relating to abuse or neglect, upon the subpoena of the court, the corporation counsel, county attorney, district attorney, counsel for the child, or one of the parties to the proceeding, shall be required to send such records, photographs or evidence to the court for use in any proceeding relating to abuse or neglect under this article. Notwithstanding any other provision of law to the contrary, service of any such subpoena on a hospital may be made by certified mail, return receipt requested, to the director of the hospital. The court shall establish procedures for the receipt and safeguarding of such records.

(b) Pursuant to a demand pursuant to section thirty-one hundred twenty of the civil practice law and rules, a petitioner or social services official shall provide to a respondent or the law guardian any records, photographs or other evidence demanded relevant to the proceeding, for inspection and photocopying. The petitioner or social services official may delete the identity of the persons who filed reports pursuant to section four hundred fifteen of the social services law, unless such petitioner or official intends to offer such reports into evidence at a hearing held pursuant to this article. The petitioner or social services official may move for a protective order to withhold records, photographs or evidence which will not be offered into evidence and the disclosure of which is likely to endanger the life or health of the child.

(c) A respondent or the law guardian may move for an order directing that any child who is the subject of a proceeding under this article be made available for examination by a physician, psychologist or social worker selected by such party or law guardian. In determining the motion, the court shall consider the need of the respondent or law guardian for such examination to assist in the preparation of the case and the potential harm to the child from the examination. Nothing in this section shall preclude the parties from agreeing upon a person to conduct such examination without court order. Any examination or interview, other than a physical examination, of a child who is the subject of a proceeding under this article, for the purposes of offering expert testimony to a court regarding the sexual abuse of the child, as such term is defined by section one thousand twelve of this article, may, in the discretion of the court, be videotaped in its entirety with access to be provided to the court, the law guardian and all parties. In determining whether such examination or interview should be videotaped, the court shall consider the effect of the videotaping on the reliability of the examination, the effect of the videotaping on the child and the needs of the parties, including the law guardian, for the videotape. Prior to admitting a videotape of an examination or interview into evidence, the person conducting such examination or the person operating the video camera shall submit to the court a verified statement confirming that such videotape is a complete and unaltered videographic record of such examination of the child. The proponent of entry of the videotape into evidence must establish that the potential prejudicial effect is substantially outweighed by the probative value of the videotape in assessing the reliability of the validator in court. Nothing in this section shall in any way affect the admissibility of such evidence in any other court proceeding. The chief administrator of the courts shall promulgate regulations protecting the confidentiality and security of such tapes, and regulating the access thereto, consistent with the provisions of this section.

(d) Unless otherwise proscribed by this article, the provisions and limitations of article thirty-one of the civil practice law and rules shall apply to proceedings under this article. In determining any motion for a protective order, the court shall consider the need of the party for the discovery to assist in the preparation of the case and any potential harm to the child from the discovery. The court shall set a schedule for discovery to avoid unnecessary delay.

NORTH DAKOTA
N.D. Cent. Code, § 31-04-04.1 (2002)
Videotaped statement of child sexual offense victim — Criteria for admission as evidence

CRIMES: Gross sexual imposition; sexual imposition; corruption or solicitation of a minor; sexual assault; sexual abuse of wards; incest.

1. In any prosecution for a violation of section 12.1-20-03,12.1-20-03.1,12.1-20-04,12.1-20-05, 12.1-20-06,12.1-20-07, or 12.1-20-11 in which the victim is less than fifteen years of age, the oral statement of the child victim may be recorded before trial and, subject to subsection 2, is admissible as evidence in any court proceeding regarding the offense if the following conditions are satisfied:

a. The court determines there is reasonable cause to believe that the child victim would experience serious emotional trauma as a result of in-court participation in the proceeding;

b. The accused must be given reasonable written notice of the time and place for taking the videotaped statement;

c. The accused must be afforded the opportunity to hear and view the testimony from outside the presence of the child by means of a two-way mirror or other similar method that will ensure that the child cannot hear or see the accused;

d. The accused must have the opportunity to communicate orally with counsel by electronic means while the videotaped statement is being made; and

e. All questioning must be done by the prosecutor or counsel for the defendant unless the defendant is an attorney pro se. An attorney pro se must conduct all questioning from outside the presence of the child. Upon request of any of the parties or upon the determination of the court that it would be appropriate, the court may appoint a person who is qualified as an expert and who has dealt with the child in a therapeutic setting to aid the court throughout proceedings conducted under this section and the court may appoint a guardian ad litem to protect the interests of the child.

2. A child victim's videotaped statement is admissible pursuant to subsection 1 if the court finds that the child is unavailable as a witness to testify at trial and, upon viewing the videotape recording before it is shown to the jury, determines that it is sufficientiy reliable and trustworthy and that the interests of justice will best be served by admission of the statement into evidence. For purposes of this subsection, "unavailable" includes a determination, based on medical or psychological evidence or expert testimony, that the child would suffer serious emotional or psychological strain if required to testify at trial. The court, in making its findings and determinations under this subsection, shall consider at least the following:

e. The nature, degree, and duration of potential injury to the child from testifying.

OHIO
ORC Ann. 2152.81 (Anderson 2002)
Deposition of child victim; videotaping; testimony taken outside courtroom and televised into it or replayed in courtroom, (applies to juvenile court only)

CRIMES: Kidnapping and extortion; unlawful restraint; criminal child enticement; rape; sexual battery; gross sexual imposition; sexual imposition; importuning; public indecency; compelling prostitution; procuring; soliciting after positive HIV test; disseminating matter harmful to juveniles; Pandering obscenity; Pandering obscenity involving a minor; Pandering sexually oriented matter involving a minor; Illegal use of minor in nudity-oriented material or performance; Endangering children.

AGE: Eleven years of age or younger at the time the motion to take the deposition is made or at the time of the taking of in camera testimony at trial

(a) A person who was a victim of a violation identified in division (A)(2) of this section or an act that would be an offense of violence if committed by an adult;

(b) A person against whom was directed any conduct that constitutes, or that is an element of, a violation identified in division (A)(2) of this section or an act that would be an offense of violence if committed by an adult.

(2) In any proceeding in juvenile court involving a complaint, indictment, or information in which a child is charged with a violation of section 2905.03,2905.05,2907.02,2907.03,2907.05,2907.06, 2907.07,2907.09,2907.21,2907.23,2907.24, 2907.31,2907.32,2907.321 [2907.32.1], 2907.322 [2907.32.2], 2907.323 [2907.32.31. or 2919.22 of the Revised Code or an act that would be an offense of violence if committed by an adult and in which an alleged victim of the violation or act was a child who was less than thirteen years of age when the complaint or information was filed or the indictment was returned, the juvenile judge, upon motion of an attorney for the prosecution, shall order that the testimony of the child victim be taken by deposition. The prosecution also may request that the deposition be videotaped in accordance with division (A)(3) of this section. The judge shall notify the child victim whose deposition is to be taken, the prosecution, and the attorney for the child who is charged with the violation or act of the date, time, and place for taking the deposition. The notice shall identify the child victim who is to be examined and shall indicate whether a request that the deposition be videotaped has been made. The child who is charged with the violation or act shall have the right to attend the deposition and the right to be represented by counsel. Depositions shall be taken in the manner provided in civil cases, except that the judge in the proceeding shall preside at the taking of the deposition and shall rule at that time on any objections of the prosecution or the attorney for the child charged with the violation or act. The prosecution and the attorney for the child charged with the violation or act shall have the right, as at an adjudication hearing, to full examination and cross-examination of the child victim whose deposition is to be taken. If a deposition taken under this division is intended to be offered as evidence in the proceeding, it shall be filed in the juvenile court in which the action is pending and is admissible in the manner described in division (B) of this section. If a deposition of a child victim taken under this division is admitted as evidence at the proceeding under division (B) of this section, the child victim shall not be required to testify in person at the proceeding.

However, at any time before the conclusion of the proceeding, the attorney for the child charged with the violation or act may file a motion with the judge requesting that another deposition of the child victim be taken because new evidence material to the defense of the child charged has been discovered that the attorney for the child charged could not with reasonable diligence have discovered prior to the taking of the admitted deposition. Any motion requesting another deposition shall be accompanied by supporting affidavits. Upon the filing of the motion and affidavits, the court may order that additional testimony of the child victim relative to the new evidence be taken by another deposition. If the court orders the taking of another deposition under this provision, the deposition shall be taken in accordance with this division; if the admitted deposition was a videotaped deposition taken in accordance with division (A)(3) of this section, the new deposition also shall be videotaped in accordance with that division, and, in other cases, the new deposition may be videotaped in accordance with that division.

(3) If the prosecution requests that a deposition to be taken under division (A)(2) of this section be videotaped, the juvenile judge shall order that the deposition be videotaped in accordance with this division. If a juvenile judge issues an order to video tape [nl] the deposition, the judge shall exclude from the room in which the deposition is to be taken every person except the child victim giving the testimony, the judge, one or more interpreters if needed, the attorneys for the prosecution and the child who is charged with the violation or act, any person needed to operate the equipment to be used, one person chosen by the child victim giving the deposition, and any person whose presence the judge determines would contribute to the welfare and well-being of the child victim giving the deposition. The person chosen by the child victim shall not be a witness in the proceeding and, both before and during the deposition, shall not discuss the testimony of the child victim with any other witness in the proceeding. To the extent feasible, any person operating the recording equipment shall be restricted to a room adjacent to the room in which the deposition is being taken, or to a location in the room in which the deposition is being taken that is behind a screen or mirror so that the person operating the recording equipment can see and hear, but cannot be seen or heard by, the child victim giving the deposition during the deposition. The child who is charged with the violation or act shall be permitted to observe and hear the testimony of the child victim giving the deposition on a monitor, shall be provided with an electronic means of immediate communication with the attorney of the child who is charged with the violation or act during the testimony, and shall be restricted to a location from which the child who is charged with the violation or act cannot be seen or heard by the child victim giving the deposition, except on a monitor provided for that purpose. The child victim giving the deposition shall be provided with a monitor on which the child victim can observe, while giving testimony, the child who is charged with the violation or act The judge, at the judge's discretion, may preside at the deposition by electronic means from outside the room in which the deposition is to be taken; if the judge presides by electronic means, the judge shall be provided with monitors on which the judge can see each person in the room in which the deposition is to be taken and with an electronic means of communication with each person in that room, and each person in the room shall be provided with a monitor on which that person can see the judge and with an electronic means of communication with the judge. A deposition that is videotaped under this division shall be taken and filed in the manner described in division (A)(2) of this section and is admissible in the manner described in this division and division (B) of this section, and, if a deposition that is videotaped under this division is admitted as evidence at the proceeding, the child victim shall not be required to testify in person at the proceeding. No deposition videotaped under this division shall be admitted as evidence at any proceeding unless division (B) of this section is satisfied relative to the deposition and all of the following apply relative to the recording:

(a) The recording is both aural and visual and is recorded on film or videotape, or by other electronic

(b) The recording is authenticated under the Rules of Evidence and the Rules of Criminal Procedure as a fair and accurate representation of what occurred, and the recording is not altered other than at the direction and under the supervision of the judge in the proceeding.

(c) Each voice on the recording that is material to the testimony on the recording or the making of the recording, as determined by the judge, is identified.

(d) Both the prosecution and the child who is charged with the violation or act are afforded an opportunity to view the recording before it is shown in the proceeding.

(B)(1) At any proceeding in relation to which a deposition was taken under division (A) of this section, the deposition or a part of it is admissible in evidence upon motion of the prosecution if the testimony in the deposition or the part to be admitted is not excluded by the hearsay rule and if the deposition or the part to be admitted otherwise is admissible under the Rules of Evidence. For purposes of this division, testimony is not excluded by the hearsay rule if the testimony is not hearsay under Evidence Rule 801; if the testimony is within an exception to the hearsay rule set forth in Evidence Rule 803; if the child victim who gave the testimony is unavailable as a witness, as defined in Evidence Rule 804, and the testimony is admissible under that rule; or if both of the following apply:

(a) The child who is charged with the violation or act had an opportunity and similar motive at the time of the taking of the deposition to develop the testimony by direct, cross, or redirect examination.

(b) The judge determines that there is reasonable cause to believe that, if the child victim who gave the testimony in the deposition were to testify in person at the proceeding, the child victim would experience serious emotional trauma as a result of the child victim's participation at the proceeding.

(2) Objections to receiving in evidence a deposition or a part of it under division (B) of this section shall be made as provided in civil actions.

(3) The provisions of divisions (A) and (B) of this section are in addition to any other provisions of the Revised Code, the Rules of Juvenile Procedure, the Rules of Criminal Procedure, or the Rules of Evidence that pertain to the taking or admission of depositions in a juvenile court proceeding and do not limit the admissibility under any of those other provisions of any deposition taken under division (A) of this section or otherwise taken.

(C) In any proceeding in juvenile court involving a complaint, indictment, or information in which a child is charged with a violation listed in division (A)(2) of this section or an act that would be an offense of violence if committed by an adult and in which an alleged victim of the violation or offense was a child who was less than thirteen years of age when the complaint or information was filed or indictment was returned, the prosecution may file a motion with the juvenile judge requesting the judge to order the testimony of the child victim to be taken in a room other than the room in which the proceeding is being conducted and be televised, by closed circuit equipment, into the room in which the proceeding is being conducted to be viewed by the child who is charged with the violation or act and any other persons who are not permitted in the room in which the testimony is to be taken but who would have been present during the testimony of the child victim had it been given in the room in which the proceeding is being conducted. Except for good cause shown, the prosecution shall file a motion under this division at least seven days before the date of the proceeding. The juvenile judge may issue the order upon the motion of the prosecution filed under this division, if the judge determines that the child victim is unavailable to testify in the room in which the proceeding is being conducted in the physical presence of the child charged with the violation or act, due to one or more of the reasons set forth in division (E) of this section. If a juvenile judge issues an order of that nature, the judge shall exclude from the room in which the testimony is to be taken every person except a person described in division (A)(3) of this section. The judge, at the judge's discretion, may preside during the

giving of the testimony by electronic means from outside the room in which it is being given, subject to the limitations set forth in division (A)(3) of this section. To the extent feasible, any person operating the televising equipment shall be hidden from the sight and hearing of the child victim giving the testimony, in a manner similar to that described in division (A)(3) of this section. The child who is charged with the violation or act shall be permitted to observe and hear the testimony of the child victim giving the testimony on a monitor, shall be provided with an electronic means of immediate communication with the attorney of the child who is charged with the violation or act during the testimony, and shall be restricted to a location from which the child who is charged with the violation or act cannot be seen or heard by the child victim giving the testimony, except on a monitor provided for that purpose. The child victim giving the testimony shall be provided with a monitor on which the child victim can observe, while giving testimony, the child who is charged with the violation or act.

(D) In any proceeding in juvenile court involving a complaint, indictment, or information in which a child is charged with a violation listed in division (A)(2) of this section or an act that would be an offense of violence if committed by an adult and in which an alleged victim of the violation or offense was a child who was less than thirteen years of age when the complaint or information was filed or the indictment was returned, the prosecution may file a motion with the juvenile judge requesting the judge to order the testimony of the child victim to be taken outside of the room in which the proceeding is being conducted and be recorded for showing in the room in which the proceeding is being conducted before the judge, the child who is charged with the violation or act, and any other persons who would have been present during the testimony of the child victim had it been given in the room in which the proceeding is being conducted. Except for good cause shown, the prosecution shall file a motion under this division at least seven days before the date of the proceeding. The juvenile judge may issue the order upon the motion of the prosecution filed under this division, if the judge determines that the child victim is unavailable to testify in the room in which the proceeding is being conducted in the physical presence of the child charged with the violation or act, due to one or more of the reasons set forth in division (E) of this section. If a juvenile judge issues an order of that nature, the judge shall exclude from the room in which the testimony is to be taken every person except a person described in division (A)(3) of this section. To the extent feasible, any person operating the recording equipment shall be hidden from the sight and hearing of the child victim giving the testimony, in a manner similar to that described in division (A)(3) of this section. The child who is charged with the violation or act shall be permitted to observe and hear the testimony of the child victim giving the testimony on a monitor, shall be provided with an electronic means of immediate communication with the attorney of the child who is charged with the violation or act during the testimony, and shall be restricted to a location from which the child who is charged with the violation or act cannot be seen or heard by the child victim giving the testimony, except on a monitor provided for that purpose. The child victim giving the testimony shall be provided with a monitor on which the child victim can observe, while giving testimony, the child who is charged with the violation or act. No order for the taking of testimony by recording shall be issued under this division unless the provisions set forth in divisions (A)(3)(a), (b), (c), and (d) of this section apply to the recording of the testimony.

(E) For purposes of divisions (C) and (D) of this section, a juvenile judge may order the testimony of a child victim to be taken outside of the room in which a proceeding is being conducted if the judge determines that the child victim is unavailable to testify in the room in the physical presence of the child charged with the violation or act due to one or more of the following circumstances:

(1) The persistent refusal of the child victim to testify despite judicial requests to do so;

(2) The inability of the child victim to communicate about the alleged violation or offense because of extreme fear, failure of memory, or another similar reason;

(3) The substantial likelihood that the child victim will suffer serious emotional trauma from so testifying.

(F)(1) If a juvenile judge issues an order pursuant to division (C) or (D) of this section that requires the testimony of a child victim in a juvenile court proceeding to be taken outside of the room in which the proceeding is being conducted, the order shall specifically identify the child victim to whose testimony it applies, the order applies only during the testimony of the specified child victim, and the child victim giving the testimony shall not be required to testify at the proceeding other than in accordance with the order. The authority of a judge to close the taking of a deposition under division (A)(3) of this section or a proceeding under division (C) or (D) of this section is in addition to the authority of a judge to close a hearing pursuant to section 2151.35 of the Revised Code.

(2) A juvenile judge who makes any determination regarding the admissibility of a deposition under divisions (A) and (B) of this section, the videotaping of a deposition under division (A)(3) of this section, or the taking of testimony outside of the room in which a proceeding is being conducted under division (C) or (D) of this section, shall enter the determination and findings on the record in the proceeding.

ORC Ann. 2945.49 (Anderson 2002)
Testimony of deceased or absent witness; videotaped preliminary hearing testimony of child victim.

CRIMES: Criminal child enticement; rape; sexual battery; unlawful sexual conduct with a minor; corruption of a minor; gross sexual imposition; compelling prostitution; soliciting after positive HTV test; disseminating matter harmful to juveniles; Pandering obscenity; pandering obscenity involving a minor; pandering sexually oriented matter involving a minor; illegal use of minor in nudity-oriented material or performance; endangering children.

(A)(1) As used in this section, "victim" includes any person who was a victim of a felony violation identified in division (B)(1) of this section or a felony offense of violence or against whom was directed any conduct that constitutes, or that is an element of, a felony violation identified in division (B)(1) of this section or a felony offense of violence.

(2) Testimony taken at an examination or a preliminary hearing at which the defendant is present, or at a former trial of the cause, or taken by deposition at the instance of the defendant or the state, may be used whenever the witness giving the testimony dies or cannot for any reason be produced at the trial or whenever the witness has, since giving that testimony, become incapacitated to testify. If the former testimony is contained within an authenticated transcript of the testimony, it shall be proven by the transcript, otherwise by other testimony.

(B)(1) At a trial on a charge of a felony violation of section 2905.05,2907.02,2907.03,2907.04, 2907.05,2907.21,2907.24,2907.31,2907.32,2907.321 [2907.32.1], 2907.322 [2907.32.2], 2907.323 [2907.32.3], or 2919.22 of the Revised Code or a felony offense of violence and in which an alleged victim of the alleged violation or offense was less than thirteen years of age when the complaint or information was filed, whichever occurred earlier, the court, upon motion of the prosecutor in the case, may admit videotaped preliminary hearing testimony of the child victim as evidence at the trial, in lieu of the child victim appearing as a witness and testifying at the trial, if all of the following apply:

(a) The videotape of the testimony was made at the preliminary hearing at which probable cause of the violation charged was found;

(b) The videotape of the testimony was made in accordance with division (C) of section 2937.11 of the Revised Code;

(c) The testimony in the videotape is not excluded by the hearsay rule and otherwise is admissible under the Rules of Evidence. For purposes of this division, testimony is not excluded by the hearsay rule if the testimony is not hearsay under Evidence Rule 801, if the testimony is within an exception to the hearsay rule set forth in Evidence Rule 803, if the child victim who gave the testimony is unavailable as a witness, as defined in Evidence Rule 804, and the testimony is admissible under that rule, or if both of the following apply:

(1) The accused had an opportunity and similar motive at the preliminary hearing to develop the testimony of the child victim by direct, cross, or redirect examination;

(ii) The court determines that there is reasonable cause to believe that if the child victim who gave the testimony at the preliminary hearing were to testify in person at the trial, the child victim would experience serious emotional trauma as a result of the child victim's participation at the trial.

(2) If a child victim of an alleged felony violation of section 2905.05,2907.02,2907.03,2907.04, 2907.05,2907.21,2907.24,2907.31,2907.32,2907.321 [2907.32.1], 2907.322 [2907.32.2], 2907.323 [2907323], or 2919.22 of the Revised Code or an alleged felony offense of violence testifies at the preliminary hearing in the case, if the testimony of the child victim at the preliminary hearing was videotaped pursuant to division (C) of section 2937.11 of the Revised Code, and if the defendant in the case files a written objection to the use, pursuant to division (B)(1) of this section, of the videotaped testimony at the trial, the court, immediately after the filing of the objection, shall hold a hearing to determine whether the videotaped testimony of the child victim should be admissible at trial under division (B)(1) of this section and, if it is admissible, whether the child victim should be required to provide limited additional testimony of the type described in this division. At the hearing held pursuant to this division, the defendant and the prosecutor in the case may present any evidence that is relevant to the issues to be determined at the hearing, but the child victim shall not be required to testify at the hearing.

After the hearing, the court shall not require the child victim to testify at the trial, unless it determines that both of the following apply:

(a) That the testimony of the child victim at trial is necessary for one or more of the following reasons:

(i) Evidence that was not available at the time of the testimony of the child victim at the preliminary hearing has been discovered;

(ii) The circumstances surrounding the case have changed sufficiently to necessitate that the child victim testify at the trial.

(b) That the testimony of the child victim at the trial is necessary to protect the right of the defendant to a fair trial.

The court shall enter its finding and the reasons for it in the journal. If the court requires the child victim to testily at the trial, the testimony of the victim shall be limited to the new evidence and changed circumstances, and the child victim shall not otherwise be required to testify at the trial. The required testimony of the child victim may be given in person or, upon motion of the prosecution, may be taken by deposition in accordance with division (A) of section 2945.481 [2945.48.11 of the Revised Code provided the deposition is admitted as evidence under division (B) of that section, may be taken outside of the courtroom and televised into the courtroom in accordance with division (C) of that section, or may be taken outside of the courtroom and recorded for showing in the courtroom in accordance with division (D) of that section.

(3) If videotaped testimony of a child victim is admitted at trial in accordance with division (B)(1) of

this section, the child victim shall not be compelled in any way to appear as a witness at the trial, except as provided in division (B)(2) of this section.

(C) An order issued pursuant to division (B) of this section shall specifically identify the child victim concerning whose testimony it pertains. The order shall apply only during the testimony of the child victim it specifically identifies.

(D) As used in this section, "prosecutor" has the same meaning as in section 2935.01 of the Revised Code.

ORC Ann. 2937.11 (Anderson 2002)
§ 2937.11 Presentation of state's case.

(A)(1) As used in this section, ''victim" includes any person who was a victim of a felony violation identified in division (B) of this section or a felony offense of violence or against whom was directed any conduct that constitutes, or that is an element of, a felony violation identified in division (B) of this section or a felony offense of violence.

(2) At the preliminary hearing set pursuant to section 2937.10 of the Revised Code and the Criminal Rules, the prosecutor may state, but is not required to state, orally the case for the state and shall then proceed to examine witnesses and introduce exhibits for the state. The accused and the magistrate have full right of cross examination, and the accused has the right of inspection of exhibits prior to their introduction. The hearing shall be conducted under the rules of evidence prevailing in criminal trials generally. On motion of either the state or the accused, witnesses shall be separated and not permitted in the hearing room except when called to testify.

(B) In a case involving an alleged felony violation of section 2905.05,2907.02,2907.03,2907.04, 2907.05,2907.21,2907.24,2907.31,2907.32,2907.321 [2907.32.1], 2907.322 [2907.32.2], 2907.323 [2907.32.3], or 2919.22 of the Revised Code or an alleged felony offense of violence and in which an alleged victim of the alleged violation or offense was less than thirteen years of age when the complaint or information was filed, whichever occurred earlier, upon motion of the prosecution, the testimony of the child victim at the preliminary hearing may be taken in a room other than the room in which the preliminary hearing is being conducted and be televised, by closed circuit equipment, into the room in which the preliminary hearing is being conducted, in accordance with division (C) of section 2945.481 r2945.48.11 of the Revised Code.

(C) In a case involving an alleged felony violation listed in division (B) of this section or an alleged felony offense of violence and in which an alleged victim of the alleged violation or offense was less than thirteen years of age when the complaint or information was filed, whichever occurred earlier, the court, on written motion of the prosecutor in the case filed at least three days prior to the hearing, shall order that all testimony of the child victim be recorded and preserved on videotape, in addition to being recorded for purposes of the transcript of the proceeding. If such an order is issued, it shall specifically identify the child victim concerning whose testimony it pertains, apply only during the testimony of the child victim it specifically identifies, and apply to all testimony of the child victim

presented at the hearing, regardless of whether the child victim is called as a witness by the prosecution or by the defense.

OKLAHOMA
22 Okl. St. § 753 (2003)
Taking testimony of certain child witnesses in room other than courtroom — Recording

A. This section shall apply only to a proceeding in the prosecution of an offense alleged to have been committed against a child twelve (12) years of age or younger, and shall apply only to the testimony of that child or other child witness.

B. The court may, on the motion of the child witness, the attorney for any party or on its own initiative, 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 in the proceeding. The child giving testimony shall be under oath and only the attorneys for the defendant, the state and the child, persons necessary to operate the equipment and any person whose presence, in the opinion of the court, would contribute to the welfare and well-being of the child may be present in the room with the child during the testimony. Only the attorneys may question the child. 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 the 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 in person, but shall ensure that the child cannot hear or see the defendant. All of the testimony given by a child via closed-circuit television shall simultaneously be recorded by visual and aural recording on film or videotape or by other electronic means, which recording shall be preserved as part of the record in the case, and shall be available for use in any retrial of the case.

C. The court may, on the motion of the child witness, the attorney for any party or on its own initiative, 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 in the proceeding. Only those persons permitted to be present at the taking of testimony under subsection B of this section 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 in subsection B of this section. The child giving testimony shall be under oath, and only the attorneys may question the child. The court shall permit the defendant to observe and hear the testimony of the chi; I in person, but shall ensure that the child cannot hear or see the defendant. The court shall also ensure that:

1. The recording is both visual and aural and is recorded c dim or videotape or by other electronic means;

2. The recording equipment is capable of making an accurate recording, the operator of the equipment is competent and the recording is accurate and has not bee altered;

4. Each party to the proceeding is afforded an opportunity view the recording before it is shown in

the courtroom, and a copy of a written transcript transcribed by a licensed or certified court reporter is provided to the parties.

D. If the court orders the testimony of a child to be taken under subsections B or C of this section, the child shall not be required to testify in court at the proceeding for which the testimony was taken.

E. Prior to issuing an order pursuant to either subsection B or C of this section, the court shall, after hearing evidence on the matter, make a determination as to whether or not testimony by the child in the courtroom will result in the child suffering serious emotional distress such that the child cannot reasonably communicate. An affirmative determination is prerequisite to such an order and must be supported by case-specific findings by the court to the effect that:

1. Use of the closed-circuit television procedure as authorized by subsection B of this section or the visual and aural filming or videotaping or other electronic recording as authorized by subsection C of this section is necessary, in the particular case, to protect the welfare of the particular child witness;

2. The particular child witness would be traumatized by the presence of the particular defendant; and

3. The emotional distress which would be suffered by the child witness in the presence of the defendant would be more than de minimus, i.e., more than mere nervousness or excitement or some reluctance to testify.

F. At the conclusion of any trial in which testimony of a child is recorded as authorized by subsections B and C of this section, the trial court shall order such recording to be sealed, and such recording shall remain sealed subject to the further lawful order of a court until the case has been fully and finally adjudicated, on appeal or otherwise, at which time the recording shall be destroyed by the authority having custody.

G. 1. At any retrial of a proceeding in which a child's testimony was taken under subsection B or C of this section, the court may, on motion of the child witness, the attorney for any party or on its own initiative, after hearing evidence on the matter, order that the visual and aural recording of such prior testimony be admitted in evidence, for viewing by the trier of fact, in lieu of a repetition by the child of such earlier testimony.

2. Such an order must be supported by case-specific findings to the effect that:

a. the charge or charges against the defendant in the retrial constitute all or some of the charges on which he was tried in the earlier proceeding,

b. the testimony which would be given by the child in the later proceeding would be substantially cumulative of the child's testimony recorded in the earlier proceeding,

c. the use of such recorded testimony at the retrial, in lieu of the child's testimony either in the courtroom or pursuant to subsection B or C of this section, is necessary in the particular case to protect the welfare of the child witness,

d. the particular child witness, in attempting to repeat such testimony, either in the courtroom or via an alternate procedure provided by subsections B and C of this section, and in being again subjected to cross-examination, would suffer emotional distress which would be more than de minimus and would be of such severity as to render the child unable to reasonably communicate, or, because of the extreme youth of such child at the time of the offense, the passage of time has adversely affected the child's ability to recall details of the events constituting the offense,

e. court action in granting the new trial, or reversing the previous conviction, was not based on any error associated with the child's previous testimony or the transmission or recording thereof.

3. If the court orders that the visual and aural recording of the child's testimony made under subsection B or C of this section in the earlier proceeding be admitted into evidence at the retrial, the child shall not be required to testify at such retrial either in the courtroom or via procedures provided in subsections B or C of this section.

PENNSYLVANIA
42 Pa.CS. § 5984 (2002)
Videotaped depositions

TEXT:
(a) DEPOSITIONS.-SUBJECT TO SUBSECTION (A.1), IN ANY PROSECUTION OR ADJUDICATION INVOLVING A CHILD VICTIM OR CHILD MATERIAL WITNESS, THE COURT MAY ORDER THE TAKING OF A VIDEOTAPED DEPOSITION OF THE CHILD VICTIM OR CHILD MATERIAL WITNESS. SUCH VIDEOTAPED DEPOSITIONS, IF TAKEN FOR USE AT THE PRELIMINARY HEARING, MAY BE USED ONLY AT THE PRELIMINARY HEARING IN LIEU OF THE TESTIMONY OF THE CHILD. IF SUCH VIDEOTAPED DEPOSITION IS TAKEN FOR USE AT TRIAL, IT MAY BE USED ONLY AT THE TRIAL IN LIEU OF THE TESTIMONY OF THE CHILD. THE DEPOSITIONS SHALL BE TAKEN UNDER OATH OR AFFIRMATION BEFORE THE COURT IN CHAMBERS OR IN A SPECIAL FACILITY DESIGNED FOR TAKING THE DEPOSITIONS OF CHILDREN. ONLY THE ATTORNEYS FOR THE DEFENDANT AND FOR THE COMMONWEALTH, PERSONS NECESSARY TO OPERATE THE EQUIPMENT, A QUALIFIED SHORTHAND REPORTER AND ANY PERSON WHOSE PRESENCE WOULD CONTRIBUTE TO THE WELFARE AND WELL-BEING OF THE CHILD, INCLUDING PERSONS DESIGNATED UNDER SECTION 5983 (RELATING TO RIGHTS AND SERVICES), MAY BE PRESENT IN THE ROOM WITH THE CHILD DURING HIS DEPOSITION. THE COURT SHALL PERMIT THE DEFENDANT TO OBSERVE AND HEAR THE TESTIMONY OF THE CHILD BUT SHALL ENSURE THAT THE CHILD CANNOT HEAR OR SEE THE DEFENDANT. EXAMINATION AND CROSS-EXAMINATION OF THE CHILD SHALL PROCEED IN THE SAME MANNER AS PERMITTED AT TRIAL. THE COURT SHALL MAKE CERTAIN THAT THE DEFENDANT AND DEFENSE COUNSEL HAVE ADEQUATE OPPORTUNITY TO COMMUNICATE FOR THE PURPOSES OF PROVIDING AN EFFECTIVE DEFENSE.

(A.1) DETERMINATION. -BEFORE THE COURT ORDERS THE CHILD VICTIM OR THE CHILD MATERIAL WITNESS TO TESTIFY BY VIDEOTAPED DEPOSITION, THE COURT MUST DETERMINE, BASED ON EVIDENCE PRESENTED TO IT, THAT TESTIFYING IN THE DEFENDANTS PRESENCE WILL RESULT IN THE CHILD SUFFERING SERIOUS EMOTIONAL DISTRESS SUCH THAT THE CHILD VICTIM OR CHILD MATERIAL

WITNESS CANNOT REASONABLY COMMUNICATE. IN MAKING THIS DETERMINATION, THE COURT MAY DO ALL OF THE FOLLOWING:

(1) Observe and question the child victim or child material witness, either inside or outside the courtroom.

(2) Hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child victim or child material witness in a medical or therapeutic setting.

(1) If the court observes or questions the child victim or child material witness under subsection (a.l)(l), the attorney for the defendant and the attorney for the Commonwealth have the right to be present, but the court shall not permit the defendant to be present.

(2) If the court hears testimony under subsection (a. 1)(2), the defendant, the attorney for the defendant and the attorney for the Commonwealth have the right to be present.

(b) EFFECT OF ORDER. -IF THE COURT ORDERS THE DEPOSITION OF A CHILD TO BE TAKEN UNDER SUBSECTION (A), THE CHILD MAY NOT BE REQUIRED TO TESTIFY IN COURT AT THE PROCEEDING FOR WHICH THE DEPOSITION WAS TAKEN.

42 Pa.C.S. §5984.1 (2002)
§ 5984.1. Testimony by videotaped recording

(a) VIDEOTAPE.-SUBJECT TO SUBSECTION (B), IN ANY PROSECUTION OR ADJUDICATION INVOLVING A CHILD VICTIM OR CHILD MATERIAL WITNESS, THE COURT MAY ORDER THE TAKING OF THE CHILD VICTIMS OR CHILD MATERIAL WITNESS'S TESTIMONY BY VIDEOTAPED RECORDING. THE TESTIMONY SHALL BE TAKEN UNDER OATH OR AFFIRMATION BEFORE THE COURT IN CHAMBERS OR IN A SPECIAL FACILITY DESIGNED FOR TAKING THE VIDEOTAPED TESTIMONY OF CHILDREN. ONLY THE ATTORNEYS FOR THE DEFENDANT AND FOR THE COMMONWEALTH, PERSONS NECESSARY TO OPERATE THE EQUIPMENT, A QUALIFIED SHORTHAND REPORTER AND ANY PERSON WHOSE PRESENCE WOULD CONTRIBUTE TO THE WELFARE AND WELL-BEING OF THE CHILD, INCLUDING PERSONS DESIGNATED UNDER SECTION 5983 (RELATING TO RIGHTS AND SERVICES), MAY BE PRESENT IN THE ROOM WITH THE CHILD DURING TESTIMONY. THE COURT SHALL PERMIT THE DEFENDANT TO OBSERVE AND HEAR THE TESTIMONY OF THE CHILD BUT SHALL ENSURE THAT THE CHILD CANNOT HEAR OR SEE THE DEFENDANT. EXAMINATION AND CROSS-EXAMINATION OF THE CHILD SHALL PROCEED IN THE SAME MANNER AS PERMITTED AT TRIAL. THE COURT SHALL MAKE CERTAIN THAT THE DEFENDANT AND DEFENSE COUNSEL HAVE ADEQUATE OPPORTUNITY TO COMMUNICATE FOR THE PURPOSE OF PROVIDING AN EFFECTIVE DEFENSE.

(b) DETERMINATION.-BEFORE THE COURT ORDERS THE CHILD VICTIM OR THE CHILD MATERIAL WITNESS TO TESTIFY BY VIDEOTAPED RECORDING, THE COURT MUST DETERMINE, BASED ON EVIDENCE PRESENTED TO IT, THAT TESTIFYING IN THE DEFENDANT'S PRESENCE WILL RESULT IN THE CHILD SUFFERING SERIOUS

EMOTIONAL DISTRESS SUCH THAT THE CHILD VICTIM OR CHILD MATERIAL WITNESS CANNOT REASONABLY COMMUNICATE. IN MAKING THIS DETERMINATION, THE COURT MAY DO ANY OF THE FOLLOWING:

(1) Observe and question the child victim or child material witness, either inside or outside the courtroom.

(2) Hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child victim or child material witness in a medical or therapeutic setting.

(1) If the court observes or questions the child victim or child material witness under subsection (b)( 1), the attorney for the defendant and the attorney for the Commonwealth have the right to be present, but the court shall not permit the defendant to be present.

(2) If the court hears testimony under subsection (b)(2), the defendant, the attorney for the defendant and the attorney for the Commonwealth have the right to be present.

(d) EFFECT OF ORDER. -IF THE COURT ORDERS THE TESTIMONY OF A CHILD TO BE TAKEN UNDER SUBSECTION (A), THE CHILD MAY NOT BE REQUIRED TO TESTIFY IN COURT AT THE PROCEEDING FOR WHICH THE TESTIMONY WAS TAKEN.

RHODE ISLAND
RJL Gen. Laws § 11-37-13.2 (2002) § 11 -37-13.2.
Alternative methods of victim testimony — Child victim

(a) In any judicial proceeding in which a person has been charged with sexual assault of a child who at the time of trial is seventeen (17) years of age or less, the court may order, upon a showing that the child is unable to testify before the court without suffering unreasonable and unnecessary mental or emotional harm, that me testimony of the child be taken in a room other than the courtroom and either be recorded for later showing before the court and or the finder of fact in the proceeding or be broadcast simultaneously by closed circuit television to the court and or finder of fact in the proceeding. When the child is thirteen (13) years of age or younger at the time of trial, there shall be a rebuttable presumption that the child is unable to testify before the court without suffering unreasonable and unnecessary mental or emotional harm. Only the judge, attorneys for the parties,

persons necessary to operate the recording or broadcasting 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 or her testimony. Examination and cross-examination shall proceed in the same manner as permitted at the trial or hearing.

(b) The persons operating the equipment shall be confined to an adjacent room or behind a screen or mirror which permits them to see and hear the child during his or her 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 in person, but ensure that the child cannot hear or see the person alleged to have committed the assault. The defendant shall be afforded a means of communicating with his or her attorney throughout the proceedings, and, upon request of the defendant or his or her attorney, recesses shall be permitted to allow them to confer. The court shall ensure that:

(1) The recording or broadcast 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, and the recording is accurate and has not been altered;

(4) Each party is afforded an opportunity to view any recording made prior to trial before it is shown in the courtroom; and

(c) If the court orders the testimony of a child to be so recorded or broadcast, the child shall not be required to testify at the proceeding for which the testimony was taken, and the testimony shall be used in lieu of the live testimony of the child.

R.I. Gen. Laws § 11-37-13.1 (2002)
§ 11-37-13.1. Recording — Grand jury testimony - Child assault
(applies to grand jury proceedings only)

(a) In any grand jury proceeding investigating a sexual assault alleged to have been committed against a child, a recording of a statement from the alleged victim who is thirteen (13) years of age or younger at the time of the proceeding shall be admissible into evidence at the proceeding if:

(1) The statement is sworn to under oath by the child, and the significance of the oath is explained to the child;

(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, and the recording is accurate and has not been altered;

(5) The statement was not made in response to questioning calculated to lead the child to make a particular statement;

(6) The person conducting the interview is an attorney in the department of the attorney general or

another person chosen by the attorney general to make the proceeding less intimidating to the child, and the interviewer is available to testify at the proceeding;

(b) In any grand jury proceeding investigating a sexual assault alleged to have been committed against a child, a recording of a statement from the alleged victim who is more than thirteen (13) years of age and less than eighteen (18) years of age at the time of the proceeding shall be admissible into evidence at the proceeding if:

(1) The attorney general petitions the court for permission to introduce the recording at the proceeding; and

(2) The court grants the petition upon a finding that the child would suffer unreasonable and unnecessary mental or emotional harm if required to appear personally before the grand jury in order to testify; and

(3) All of the conditions as set forth in subsection (a) of this section are followed.

SOUTH DAKOTA
S.D. Codified Laws § 23A-12-9 (2002)
Videotape of young sex crime victim's testimony at preliminary hearing or deposition — Use at trial

CRIMES: Sexual penetration with a person less than 10 years old, with a person less than 16 years old if the perpetrator is at least 3 years older, with a person less than eighteen years of age and is the child of a spouse or former spouse of the perpetrator; incest; photographing a child in an obscene act.

Notwithstanding the provisions of § 23A-44-16, if a defendant has been charged with a violation of subdivision 22-22-1 (1), (5) or (6), § 22-22-7,22-22-19.1 or 22-22-23, where the victim is less than sixteen years of age, the prosecuting attorney or defense attorney may apply for an order that the victim's testimony at the preliminary hearing or at a deposition, in addition to being stenographically recorded, be recorded and preserved on videotape. The scope and manner of the examination and cross-examination shall be such as would be allowed at the trial. Notice of any such deposition pursuant to this section shall conform in all respects to the notice requirements contained in § 23A-12-2.

The application for the order shall be in writing and made at least three days before the preliminary hearing or deposition.

Upon timely receipt of the application, the court may order that the testimony of the victim given at the preliminary hearing or deposition be taken and preserved on videotape. The videotape shall be transmitted to the clerk of the court in which the action is pending.

If at the time of trial the court finds that the victim is otherwise unavailable within the meaning of § 19-16-29, or that such testimony would in the opinion of the court be substantially detrimental to the well-being of the victim, the court may admit the videotape of the victim's testimony at the preliminary hearing or deposition as former testimony under § 19-16-30.

TEXAS
Tex. Code Crim. Proc. art. 38.071 (2002) Art 38.071.
Testimony of child who is victim of offense

CRIMES: Murder; capital murder; manslaughter; aggravated kidnapping; indecency with a child; sexual assault; aggravated assault; Injury to a child, elderly individual, or disabled individual; prohibited sexual conduct; sexual performance by a child.

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:

(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;

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 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.

(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;

(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:

(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 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;

(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 finder of fact to assess the demeanor of the child and the attorney representing the defendant, and the recording

(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

(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 mirumize 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
URCrP Rule 15.5 (2003) Rule 15.5.
Visual recording of statement or testimony of child victim or witness of sexual or physical abuse - Conditions of admissibility.

(1) In any. case concerning a charge of child abuse or of a sexual offense against a child, the oral statement of a victim or witness younger than 14 years of age may be recorded prior to the filing of an information or indictment, and upon motion and for good cause shown is admissible as evidence in any court proceeding regarding the offense if all of the following conditions are met:

(a) no attorney for either party is in the child's presence when the statement is recorded;

(b) the recording is visual and aural and is recorded on film or videotape or by other electronic means;

(c) the recording equipment is capable of making an accurate recording, the operator of the equipment is competent, and the recording is accurate and has not been altered;

(e) the person conducting the interview of the child in the recording is present at the proceeding and is available to testify and be cross-examined by either party;

(f) the defendant and his attorney are provided an opportunity to view the recording before it is shown to the court or jury;

(g) the court views the recording before it is shown to the jury and determines that it is sufficiently reliable and trustworthy and that the interest of justice will best be served by admission of the statement into evidence; and.

(h) the child is available to testify and to be cross-examined at trial, either in person or as provided by Subsection (2) or (3), or the court determines that the child is unavailable as a witness to testify at trial under the Utah Rules of Evidence. For purposes of this subsection "unavailable" includes a determination, based on medical or psychological evidence or expert testimony, that the child would suffer serious emotional or mental strain if required to testify at trial.

(2) In any case concerning a charge of child abuse or of a sexual offense against a child, the court may

order, upon motion of the prosecution and for good cause shown, that the testimony of any witness or victim younger than 14 years of age be taken in a room other than the court room, and be televised by closed circuit equipment to be viewed by the jury in the court room. All of the following conditions shall be observed:

(a) Only the presiding judge, attorneys for each party, persons necessary to operate equipment, and a counselor or therapist whose presence contributes to the welfare and emotional well-being of the child may be with the child during his testimony. The defendant may also be present during the child's testimony unless he consents to be hidden from the child's view, or the court determines that the child will suffer serious emotional or mental strain if he is required to testify in the defendant's presence, or that the child's testimony will be inherentiy unreliable if he is required to testify in the defendant's presence. If the court makes that determination, or if the defendant consents:

(iii) the court shall advise the child prior to his testimony that the defendant is present at the trial and may listen to the child's testimony;

(iv) the defendant shall be permitted to observe and hear the child's testimony, and the court shall ensure that the defendant has a means of two-way telephonic communication with his attorney during the child's testimony; and.

(v) the conditions of a normal court proceeding shall be approximated as nearly as possible.

(c) As much as possible, persons operating the equipment shall be confined to an adjacent room or behind a screen or mirror so the child cannot see or hear them.

(d) If the defendant is present with the child during the child's testimony, the court may order that persons operating the closed circuit equipment film both the child and the defendant during the child's testimony, so that the jury may view both the child and the defendant, if that may be arranged without violation of other requirements of Subsection (2).

(3) In any case concerning a charge of child abuse or of a sexual offense against a child, the court may order, upon motion of the prosecution and for good cause shown, that the testimony of any witness or victim younger than 14 years of age be taken outside the courtroom and be recorded. That testimony is admissible as evidence, for viewing in any court proceeding regarding the charges if the provisions of Subsection (2) are observed, in addition to the following provisions:

(a) the recording is both visual and aural and recorded on film or videotape or by other electronic means;

(b) the recording equipment is capable of making an accurate recording, the operator is competent, and the recording is accurate and is not altered;

(d) each party is given an opportunity to view the recording before it is shown in the courtroom.

(4) If the court orders that the testimony of a child be taken under Subsection (2) or (3), the child may not be required to testify in court at any proceeding where the recorded testimony is used.

Utah R. Juv. P. Rule 29A (2003)
Rule 29 A. Visual recording of statement or testimony of child victim or witness of sexual or physical abuse — Conditions of admissibility,
(same as above, but applies only to juvenile proceedings)

(1) In any delinquency proceeding or proceeding under Section 78-3a-602 or Section 78-3a-603 concerning a charge of child abuse or of a sexual offense against a child, the oral statement of a victim

or witness younger than 14 years of age may be recorded prior to the filing of a petition, and upon motion and for good cause shown is admissible as evidence in any court proceeding regarding the offense if all of the following conditions are met:

(a) no attorney for either party is in the child's presence when the statement is recorded;

(b) the recording is visual and aural and is recorded on film or videotape or by other electronic means;

(c) the recording equipment is capable of making an accurate recording, the operator of the equipment is competent, and the recording is accurate and has not been altered;

(e) the person conducting the interview of the child in the recording is present at the proceeding and is available to testify and be cross-examined by either party;

(f) the defendant and the defendant's attorney are provided an opportunity to view the recording before it is shown to the court;

(g) the court views the recording and determines that it is sufficiently reliable and trustworthy and that the interest of justice will best be served by admission of the statement into evidence; and.

(2) In any proceeding concerning a charge of child abuse or of a sexual offense against a child, the court may order, upon motion of the prosecution and for good cause shown, that the testimony of any witness or victim younger than 14 years of age be taken in a room other than the courtroom. All of the following conditions shall be observed:

(a) Only the judge, attorneys for each party, persons necessary to operate equipment, and a counselor or therapist whose presence contributes to the welfare and emotional well-being of the child may be with the child during the testimony. The defendant may also be present during the child's testimony unless the defendant consents to be hidden from the child's view, or the court determines that the child will suffer serious emotional or mental strain if required to testify in the defendant's presence, or that the child's testimony will be inherently unreliable if required to testify in the defendant's presence. If the court makes that determination, or if the defendant consents:

(iii) the court shall advise the child prior to testifying that the defendant is present at the trial and may listen to the child's testimony;

(v) the conditions of a normal court proceeding shall be approximated as nearly as possible.

(c) As much as possible, persons operating equipment shall be confined to an adjacent room or behind a screen or mirror so the child cannot see or hear them.

(a) the recording is both visual and aural and recorded on film or videotape or by other electronic

(b) the recording equipment is capable of making an accurate recording, the operator is competent, and the recording is accurate and is not altered;

(d) each party is given an opportunity to view the recording before it is shown in the courtroom.

(4) If the court orders that the testimony of a child be taken under Subsection (2) or (3), the child may not be required to testify in court at any proceeding where the recorded testimony is used.

VERMONT
V.R.E. 807 (2003) Rule 807.
Testimony Where Victim Is a Minor, a Mentally 111 Person or a Mentally Retarded Person.

CRIMES: Sexual assault; aggravated sexual assault; lewd and lascivious conduct with a child; incest; abuse, neglect or exploitation.

(a) Application. This rule applies only to the testimony of a child age 12 or under or mentally ill or mentally retarded person as defined in 14 V.S.A. § 3061(4) or (5) in a proceeding:

(1) in a prosecution for sexual assault under 13 V.S.A. § 3252 or aggravated sexual assault under 13 V.S.A. § 3253 alleged to have been committed against that child or mentally ill or mentally retarded person;

(2) in a prosecution for lewd and lascivious conduct with a child under 13 V.S.A. § 2602 or incest under 13 V.S.A. § 205 alleged to have been committed against that child;

(3) in a prosecution for abuse, neglect or exploitation under 33 V.S.A. § 6913 or lewd and lascivious conduct under 13 V.S.A. § 2601 alleged to have been committed against that mentally ill or mentally retarded person;

(4) under chapter 55 of Tide 33 involving a delinquent act alleged to have been committed against that child or mentally ill or mentally retarded person, if that delinquent act would be an offense listed in this subsection if committed by an adult;

(5) in a civil action in which one of the parties or witnesses has been an alleged victim of causes of action alleging sexual assault, lewd and lascivious conduct or sexual activity as defined in 33 V.S.A. § 6902.

(b) Who may move. The court may, on motion of any party, on its own motion or on motion of the attorney or guardian ad litem for the child or mentally ill or mentally retarded person order that the testimony of the child or mentally ill or mentally retarded person be taken by two-way closed-circuit television or by recorded testimony under this rule.

(c) Finding a trauma. The court shall make an order for two-way closed-circuit television or recorded testimony under this rule only upon a finding that requiring the child or mentally ill or mentally retarded person to testify in court will present a substantial risk of trauma to the child or mentally ill or mentally retarded person which would substantially impair the ability of the child or mentally ill or mentally retarded person to testify.

(d) Recorded testimony. The testimony of the child or mentally ill or mentally retarded person may be

taken outside the courtroom and recorded for showing in the courtroom before the court and the finder of fact in the proceeding. Only the court and the attorneys may question the child or mentally ill or mentally retarded person. In pro se proceedings, the court may modify the provisions of this subsection relating to the role of a pro se party. The court shall permit the person against whom the child, or mentally ill or mentally retarded person is testifying to observe and hear the testimony of the child or mentally ill or mentally retarded person in person and to confer personally with his or her attorney. Only the person against whom the testimony is directed, the attorneys, the court, persons necessary to operate the equipment and any person who is not a potential witness and whose presence the court finds would contribute to the welfare and well-being of the child or mentally ill or mentally retarded person may be present in the room with the child or mentally ill or mentally retarded person during the testimony. The persons operating the equipment shall be situated whenever possible in such a way that they can see and hear the child or mentally ill or mentally retarded person during the testimony, but the child or mentally ill or mentally retarded person cannot see or hear them. If the testimony is taken under this subsection, 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 of the equipment was competent, and the recording is accurate and is not altered except as ordered by the court;

(4) each party is afforded an opportunity to view the recording before it is shown in the courtroom.

(e) Two-way closed-circuit television. The testimony of the child or mentally ill or mentally retarded person may be taken in a room other than the courtroom and be televised by two-way closed-circuit equipment to be viewed by the finder of fact and others present in the courtroom. Only the persons necessary to operate the equipment and a person who is not a potential witness and whose presence the court finds would contribute to the welfare and well-being of the child or mentally ill or mentally retarded person may be present in the room with the child or mentally ill or mentally retarded person during the testimony.

(f) Placing of the party against whom the testimony is directed. During the recording of testimony under subsection (d) of this rule the party shall be situated in such a way that the child or mentally ill or mentally retarded person can hear and see the party unless the court finds that requiring the child or mentally ill or mentally retarded person to hear and see the party presents a substantial risk of trauma to the child or mentally ill or mentally retarded person which would substantially impair the ability of the child or mentally ill or mentally retarded person to testify, in which case the court may order that the party be situated in such a way that the child or mentally ill or mentally retarded person cannot hear or see the party. During the taking of testimony by two-way closed-circuit equipment under subsection (e) the party's image shall be transmitted to the witness unless the court finds that requiring the witness to hear and see the party presents a substantial risk of trauma to the witness which would substantially impair the ability of the witness to testify, in which case the image of the party shall not be transmitted to the witness.

(g) In-court testimony not required. If the court orders the testimony of a child or mentally ill or mentally retarded person to be taken under this rule, the child or mentally ill or mentally retarded person may not be required to testify in court at the proceeding for which the testimony was taken, unless otherwise ordered by the court for good cause shown.

WEST VIRGINIA
W. Va. Code § 62-6B-5 (2003) § 62-6B-5.
Memorialization of statements of certain child witnesses; admissibility; hearing

CRIMES: Sexual assault in the first degree; sexual assault in the second degree; sexual assault in the third degree; sexual abuse in the first degree.

(a) After the effective date of this section, whenever any law-enforcement officer, physician, psychologist, social worker or investigator, in the course of his or her employment or profession or while engaged in an active criminal investigation as a law-enforcement officer or an agent of a prosecuting attorney, obtains a statement from a child thirteen years of age or younger who is an alleged victim in an investigation or prosecution alleging a violation of the provisions of section three, four, five or seven, [61-8B-3,61-8B-4,61-8B-5 or 61-8B-7], article eight-b, chapter sixty-one of this code, he or she shall forthwith make a contemporaneous written notation and recitation of the statement received or obtained. An audio recording or video recording with sound capability of the statement may be used in lieu of the written recitation required by the provisions of this section. Failure to comply with the provisions of this section creates a presumption that the statement is inadmissible. The statement may be admitted if, after a hearing on the matter, the court finds by clear and convincing evidence that the failure to comply with the provisions of this section was a good faith omission and that the content of the proffered statement is an accurate recital of the information provided by the child and is otherwise admissible.

(1) Persons engaged in investigation pursuant to the provisions of article six or seven [§§ 49-6-1 et seq. or 49-7-1 et seq.], chapter forty-nine of this code;

(2) Medical personnel and other persons performing a forensic medical examination of a child who is an alleged victim; and

(3) Prosecuting attorneys when counseling with a child in preparation for eliciting the child's testimony in court.

WISCONSIN
Wis. Stat. § 908.08 (2002) 908.08.
Videotaped statements of children.

AGE: Under 12 years of age or under 16 years of age if the interests of justice warrant admission of the statement at the time of the proceeding.

(1) In any criminal trial or hearing, juvenile fact-finding hearing under s. 48.31 or 938.31 or revocation

hearing under s. 302.113 (9) (am), 302.114 (9) (am), 304.06 (3), or 973.10 (2), the court or hearing examiner may admit into evidence the videotaped oral statement of a child who is available to testify, as provided in this section.

Wis. Stat. § 967.04 (2002)
967.04. Depositions in criminal proceedings.

(1) If it appears that a prospective witness may be unable to attend or prevented from attending a criminal trial or hearing, that the prospective witnesss testimony is material and that it is necessary to take the prospective witnesss deposition in order to prevent a failure of justice, the court at any time after the filing of an indictment or information may upon motion and notice to the parties order that the prospective witnesss testimony be taken by deposition and that any designated books, papers, documents or tangible objects, not privileged, be produced at the same time and place. If a witness is committed pursuant to s. 969.01 (3), the court shall direct that the witnesss deposition be taken upon notice to the parties. After the deposition has been subscribed, the court shall discharge the witness.

(2) The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition. The notice shall state the name and address of each person to be examined. On motion of a party upon whom the notice is served, the court for cause shown may extend or shorten the time. Upon request of all defendants, unless good cause to the contrary is shown, the court may order that a deposition under this section be taken on the record by telephone or live audiovisual means.

(3) A deposition shall be taken as provided in civil actions. At the request of a party, the court may direct that a deposition be taken on written interrogatories as provided in civil actions.

(a) If the state or a witness procures such an order, the notice shall inform the defendant that the defendant is required to personally attend at the taking of the deposition and that the defendants failure so to do is a waiver of the defendants right to face the witness whose deposition is to be taken. Failure to attend shall constitute a waiver unless the defendant was physically unable to attend.

(b) If the defendant is not in custody, the defendant shall be paid witness fees for travel and attendance. If the defendant is in custody, the defendants custodian shall, at county expense, produce the defendant at the taking of the deposition. If the defendant is in custody, leave to take a deposition on motion of the state shall not be granted unless all states which the custodian will enter with the defendant in going to the place the deposition is to be taken have conferred upon the officers of this state the right to convey prisoners in and through them.

(a) At the trial or upon any hearing, a part or all of a deposition, so far as it is otherwise admissible under the rules of evidence, may be used if any of the following conditions appears to have been met:

2. The witness is out of state, unless it appears that the absence of the witness was procured by the party offering the deposition.

4. The party offering the deposition has been unable to procure the attendance of the witness by subpoena.

(b) Any deposition may also be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. If only part of a deposition is offered in evidence by a party, an adverse party may require the offering party to offer all of it which is relevant to the part offered and

(6) Objections to receiving in evidence a deposition may be made as in civil actions. (7)

(a) In any criminal prosecution or any proceeding under ch. 48 or 938, any party may move the court to order the taking of a videotaped deposition of a child who has been or is likely to be called as a witness. Upon notice and hearing, the court may issue an order for such a deposition if the trial or hearing in which the child may be called will commence:

2. Prior to the childs 16th birthday and the court finds that the interests of justice warrant that the childs testimony be prerecorded for use at the trial or hearing under par. (b)

(b) Among the factors which the court may consider in determining the interests of justice are any of the following:

1. The childs chronological age, level of development and capacity to comprehend the significance of the events and to verbalize about them.

3. Whether the events about which the child will testify constituted criminal or antisocial conduct against the child or a person with whom the child had a close emotional relationship and, if the conduct constituted a battery or a sexual assault, its duration and the extent of physical or emotional injury thereby caused.

4. The childs custodial situation and the attitude of other household members to the events about which the child will testify and to the underlying proceeding.

5. The childs familial or emotional relationship to those involved in the underlying proceeding.

6. The childs behavior at or reaction to previous interviews concerning the events involved.

7. Whether the child blames himself or herself for the events involved or has ever been told by any person not to disclose them; whether the childs prior reports to associates or authorities of the events have been disbelieved or not acted upon; and the childs subjective belief regarding what consequences to himself or herself, or persons with whom the child has a close emotional relationship, will ensue from providing testimony.

8. Whether the child manifests or has manifested symptoms associated with posttraumatic stress disorder or other mental disorders, including, without limitation, reexperiencing the events, fear of their repetition, withdrawal, regression, guilt, anxiety, stress, nightmares, enuresis, lack of self-esteem, mood changes, compulsive behaviors, school problems, delinquent or antisocial behavior, phobias or changes in interpersonal relationships.

9. The number of separate investigative, administrative and judicial proceedings at which the childs testimony may be required, the likely length of time until the last such proceeding, and the mental or emotional strain associated with keeping the childs recollection of the events witnessed fresh for that period of time.

10. Whether a videotaped deposition would reduce the mental or emotional strain of testifying and whether the deposition could be used to reduce the number of times the child will be required to testify.

(a) If the court orders a deposition under sub. (7), the judge shall preside at the taking of the deposition and enforce compliance with the applicable provisions of ss. 885.44 to 885.47 Notwithstanding s. 885.44 (5), counsel may make objections and the judge shall make rulings thereon as at trial. The clerk of court shall keep the certified original videotape deposition under sub. (7) in a secure place. No person may inspect or copy the deposition except by order of the court upon a showing that inspection or copying is required for editing under s. 885.44 (12) or for the investigation, prosecution or defense

of the action in which it was authorized or the provision of services to the child.

(b) If the court orders a videotape deposition under sub. (7), the court shall do all of the following:

1. Schedule the deposition on a date when the childs recollection is likely to be fresh and at a time of day when the childs energy and attention span are likely to be greatest.

2. Schedule the deposition in a room which provides adequate privacy, freedom from distractions, informality and comfort appropriate to the childs developmental level.

3. Order a recess whenever the energy, comfort or attention span of the child or other circumstances so warrant.

4. Determine that the child understands that it is wrong to tell a lie and will testify truthfully if the childs developmental level or verbal skills are such that administration of an oath or affirmation in the usual form would be inappropriate.

5. Before questioning by the parties begins, attempt to place the child at ease, explain to the child the purpose of the deposition and identify all persons attending.

6. Allow any questioner to have an adviser to assist the questioner, and upon permission of the judge, to conduct the questioning.

7. Supervise the spatial arrangements of the room and the location, movement, and deportment of all persons in attendance.

8. Allow the child to testify while sitting on the floor, on a platform, on an appropriately sized chair, or on the lap of a trusted adult, or while moving about the room within range of the visual and audio recording equipment.

9. Permit the defendant to be in a position from which the defendant can communicate privately and conveniently with counsel.

10. Upon request, make appropriate orders for the discovery and examination by the defendant of documents and other evidence in the possession of the state which are relevant to the issues to be covered at the deposition at a reasonable time prior thereto.

11. Bar or terminate the attendance of any person whose presence is not necessary to the taking of the deposition, or whose behavior is disruptive of the deposition or unduly stressful to the child. A reasonable number of persons deemed by the court supportive of the child or any defendant may be considered necessary to the taking of the deposition under this paragraph.

(9) In any criminal prosecution or juvenile fact-finding hearing under s. 48.31 or 938.31, the court may admit into evidence a videotaped deposition taken under subs. (7) and (8) without an additional hearing under s. 908.08 In any proceeding under s. 302.113 (9) (am), 302.114 (9) (am), 304.06 (3), or 973.10 (2), the hearing examiner may order and preside at the taking of a videotaped deposition using the procedure provided in subs. (7) and (8) and may admit the videotaped deposition into evidence without an additional hearing under s. 908.08NOTE: Sub. (9) is shown as amended eff. 2-1-03 by 2001 Wis. Act 109. Prior to 2-1-03 it reads:(9)In any criminal prosecution or juvenile fact-finding hearing under s. 48.31 or 938.31, the court may admit into evidence a videotaped deposition taken under subs. (7) and (8) without an additional hearing under s. 908.08. In any proceeding under s. 304.06 (3) or 973.10 (2), the hearing examiner may order and preside at the taking of a videotaped deposition using the procedure provided in subs. (7) and (8) and may admit the videotaped deposition into evidence without an additional hearing under s. 908.08.

(10) If a court or hearing examiner admits a videotaped deposition into evidence under sub. (9), the child may not be called as a witness at the proceeding in which it was admitted unless the court or hearing examiner so orders upon a showing that additional testimony by the child is required in the interest of fairness for reasons neither known nor with reasonable diligence discoverable at the time of the deposition by the party seeking to call the child. The testimony of a child who is required to testify

under this subsection may be taken in accordance with s. 972.11 (2m), if applicable.

WYOMING
Wyo. Stat. §7-11-408 (2003) § 7-11-408.
Videotape depositions

(a) In any case in which the defendant is charged with incest as defined in W.S. 6-4-402(a) or sexual assault as defined in W.S. 6-2-302 through 6-2-305 [6-2-304] and a child less than twelve (12) years of age is the victim, the judge may order the taking of a videotape deposition of the child. The videotaping shall be done under the supervision of the court.

(b) Persons allowed to be present at the videotaping of the deposition are the child, the judge, prosecutor, defendant and defense counsel, a family member who was not a witness to the offense or a support person for the child and any technicians required to operate the equipment.

(ii) The best interests of the child would be served by permitting the videotape deposition;

(iii) A potential physical or psychological harm to the child is likely to occur if the child is required to testify which would effectively render the child incapable to testify at the trial; and

(iv) The defendant or his legal counsel has the opportunity to be present and to Cross-examine the child at the videotape deposition.

(d) The judge may deny the defendant's face-to-face confrontation of the child at the videotape deposition if:

(i) The defendant is alleged to have inflicted physical harm or is alleged to have threatened to inflict physical harm upon the child, and physical or psychological harm to the child is likely to occur if there is a face-to-face confrontation of the child by defendant;

(ii) The defendant's legal counsel will have reasonable opportunity to confer with his client before and at any time during the videotape deposition; and

(iii) The defendant will have opportunity to view and hear the proceedings while being taken.

(e) A videotape deposition may be admitted at trial in lieu of the direct testimony of the child, if the judge finds, after hearing, that:

(iii) All portions of the videotape that have been ruled inadmissible have been deleted; and

(iv) A potential physical or psychological harm to the child is likely to occur if the child is required to testify which would effectively render the child incapable to testify at the trial.

(f) Children unable to articulate what was done to them will be permitted to demonstrate the sexual act or acts committed against them with the aid of anatomically correct dolls. Such demonstrations will be under the supervision of the court and shall be videotaped to be viewed at trial, and shall be received into evidence as demonstrative evidence.

(g) Videotapes which are part of the court record are subject to a protective order to preserve the privacy of the child.

(h) If the prosecutor elects to utilize a videotaped deposition pursuant to this section and the videotape has been taken and is admissible, the child may not testify in court without the consent of the defendant.

GEORGIA - Has a law allowing Closed Circuit Televised testimony for kids under 10 (O.C.G.A. § 17-8-55 (2002)

ILLINOIS - Has a Law allowing children under 18 to testify via a closed circuit television (725ILCS 5/106B-5 (2003)).

MARYLAND - Has a law allowing out of court statements by a child victim, as an exception to the heresay rule, but does not specifically address videotaping a child's testimony. (Md. CRIMINAL PROCEDURE Code Ann. § 11-304 (2002) "Out of court statements of certain child victims".

VIRGINIA
Va. Code Ann. § 63.2-1523 (2003)
§ 63.2-1523. Use of videotaped statements of complaining witnesses as evidence

A. In any civil proceeding involving alleged abuse or neglect of a child pursuant to this chapter or pursuant to §§ 16.1-241,16.1-251,16.1-252,16.1-253,16.1-283 or § 20-107.2, a recording of a statement of the alleged victim of the offense, made prior to the proceeding, may be admissible as evidence if the requirements of subsection B are met and the court determines that:

1. The alleged victim is the age of twelve or under at the time the statement is offered into evidence;

2. The recording is both visual and oral, and every person appearing in, and every voice recorded on, the tape is identified;

3. The recording is on videotape or was recorded by other electronic means capable of making an accurate recording;

5. No attorney for any party to the proceeding was present when the statement was made;

6. The person conducting the interview of the alleged victim was authorized to do so by the child-protective services coordinator of the local department;

7. All persons present at the time the statement was taken, including the alleged victim, are present and available to testify or be cross examined at the proceeding when the recording is offered; and

8. The parties or their attorneys were provided with a list of all persons present at the recording and

were afforded an opportunity to view the recording at least ten days prior to the scheduled proceedings.

B. A recorded statement may be admitted into evidence as provided in subsection A if:

1. The child testifies at the proceeding, or testifies by means of closed-circuit television, and at the time of such testimony is subject to cross examination concerning the recorded statement or the child is found by the court to be unavailable to testify on any of these grounds:

b. The child's absence from the jurisdiction, provided such absence is not for the purpose of preventing the availability of the child to testify;

f. The child's incompetency, including the child's inability to communicate about the offense because of fear or a similar reason;

g. The substantial likelihood, based upon expert opinion testimony, that the child would suffer severe emotional trauma from testifying at the proceeding or by means of closed-circuit television; and

2. The child's recorded statement is shown to possess particularized guarantees of trustworthiness and reliability.

C. A recorded statement may not be admitted under this section unless the proponent of the statement notifies the adverse party of his intention to offer the statement and the substance of the statement sufficiently in advance of the proceedings to provide the adverse party with a reasonable opportunity to prepare to meet the statement, including the opportunity to subpoena witnesses.

D. In determining whether a recorded statement possesses particularized guarantees of trustworthiness and reliability under subdivision B 2, the court shall consider, but is not limited to, the following factors:

3. Any apparent motive the child may have to falsify or distort the event, including bias, corruption, or coercion;

6. Whether the child's age makes it unlikely that the child fabricated a statement that represents a graphic, detailed account beyond the child's knowledge and experience;

7. Whether the statement has a "ring of verity," has internal consistency or coherence, and uses terminology appropriate to the child's age;

10. Whether extrinsic evidence exists to show the defendant's opportunity to commit the act complained of in the child's statement.

E. The court shall support with findings on the record, or with written findings in a court not of record, any rulings pertaining to the child's unavailability and the trustworthiness and reliability of the recorded statement.

Va. Code Ann. § 63.2-1522 (2003)
§ 63.2-1522. Admission of evidence of sexual acts with children
(same as above but regarding depositions)

A. In any civil proceeding involving alleged abuse or neglect of a child pursuant to this chapter or pursuant to §§ 16.1-241, 16.1-251, 16.1-252, 16.1-253, 16.1-283 or § 20-107.2, an out-of-court statement made by a child the age of twelve or under at the time the statement is offered into evidence, describing any act of a sexual nature performed with or on the child by another, not otherwise admissible by statute or rule, may be admissible in evidence if the requirements of subsection B are met.

B. An out-of-court statement may be admitted into evidence as provided in subsection A if:

1. The child testifies at the proceeding, or testifies by means of a videotaped deposition or closed-circuit television, and at the time of such testimony. is subject to cross examination concerning the out-of-court statement or the child is found by the court to be unavailable to testify on any of these grounds:

b. The child's absence from the jurisdiction, provided such absence is not for the purpose of preventing the availability of the child to testify;

f. The child's incompetency, including the child's inability to communicate about the offense because of fear or a similar reason; and

g. The substantial likelihood, based upon expert opinion testimony, that the child would suffer severe emotional trauma from testifying at the proceeding or by means of a videotaped deposition or closed-circuit television.

2. The child's out-of-court statement is shown to possess particularized guarantees of trustworthiness and reliability.

C. A statement may not be admitted under this section unless the proponent of the statement notifies the adverse party of his intention to offer the statement and the substance of the statement sufficiently in advance of the proceedings to provide the adverse party with a reasonable opportunity to prepare to meet the statement, including the opportunity to subpoena witnesses.

D. In determining whether a statement possesses particularized guarantees of trustworthiness and reliability under subdivision B 2, the court shall consider, but is not limited to, the following factors:

3. Certainty that the statement was made, including the credibility of the person testifying about the statement and any apparent motive such person may have to falsify or distort the event including bias, corruption or coercion;

4. Any apparent motive the child may have to falsify or distort the event, including bias, corruption, or coercion;

7. Whether the child was suffering pain or distress when making the statement;

8. Whether the child's age makes it unlikely that the child fabricated a statement that represents a graphic, detailed account beyond the child's knowledge and experience;

9. Whether the statement has internal consistency or coherence, and uses terminology appropriate to the child's age;

10. Whether the statement is spontaneous or directly responsive to questions;

11. Whether the statement is responsive to suggestive or leading questions; and

12. Whether extrinsic evidence exists to show the defendant's opportunity to commit the act complained of in the child's statement.