Chapter 223, Section 3509, Subsection (b) · 18 U.S.C. Chapter 223

Contents

(b)

(1)

(A)In a proceeding involving an alleged offense against a child, the attorney for the Government, the child’s attorney, or a guardian ad litem appointed under subsection (h) may apply for an order that the child’s testimony be taken in a room outside the courtroom and be televised by 2-way closed circuit television. The person seeking such an order shall apply for such an order at least 7 days before the trial date, unless the court finds on the record that the need for such an order was not reasonably foreseeable.

(B)The court may order that the testimony of the child be taken by closed-circuit television as provided in subparagraph (A) if the court finds that the child is unable to testify in open court in the presence of the defendant, for any of the following reasons:

(i)The child is unable to testify because of fear.

(ii)There is a substantial likelihood, established by expert testimony, that the child would suffer emotional trauma from testifying.

(iii)The child suffers a mental or other infirmity.

(iv)Conduct by defendant or defense counsel causes the child to be unable to continue testifying.

(C)The court shall support a ruling on the child’s inability to testify with findings on the record. In determining whether the impact on an individual child of one or more of the factors described in subparagraph (B) is so substantial as to justify an order under subparagraph (A), the court may question the minor in chambers, or at some other comfortable place other than the courtroom, on the record for a reasonable period of time with the child attendant, the prosecutor, the child’s attorney, the guardian ad litem, and the defense counsel present.

(D)If the court orders the taking of testimony by television, the attorney for the Government and the attorney for the defendant not including an attorney pro se for a party shall be present in a room outside the courtroom with the child and the child shall be subjected to direct and cross-examination. The only other persons who may be permitted in the room with the child during the child’s testimony are—

(i)the child’s attorney or guardian ad litem appointed under subsection (h);

(ii)persons necessary to operate the closed-circuit television equipment;

(iii)a judicial officer, appointed by the court; and

(iv)other persons whose presence is determined by the court to be necessary to the welfare and well-being of the child, including an adult attendant.

The child’s testimony shall be transmitted by closed circuit television into the courtroom for viewing and hearing by the defendant, jury, judge, and public. The defendant shall be provided with the means of private, contemporaneous communication with the defendant’s attorney during the testimony. The closed circuit television transmission shall relay into the room in which the child is testifying the defendant’s image, and the voice of the judge.

(2)

(A)In a proceeding involving an alleged offense against a child, the attorney for the Government, the child’s attorney, the child’s parent or legal guardian, or the guardian ad litem appointed under subsection (h) may apply for an order that a deposition be taken of the child’s testimony and that the deposition be recorded and preserved on videotape.

(B)

(i)Upon timely receipt of an application described in subparagraph (A), the court shall make a preliminary finding regarding whether at the time of trial the child is likely to be unable to testify in open court in the physical presence of the defendant, jury, judge, and public for any of the following reasons:

(I)The child will be unable to testify because of fear.

(II)There is a substantial likelihood, established by expert testimony, that the child would suffer emotional trauma from testifying in open court.

(III)The child suffers a mental or other infirmity.

(IV)Conduct by defendant or defense counsel causes the child to be unable to continue testifying.

(ii)If the court finds that the child is likely to be unable to testify in open court for any of the reasons stated in clause (i), the court shall order that the child’s deposition be taken and preserved by videotape.

(iii)The trial judge shall preside at the videotape deposition of a child and shall rule on all questions as if at trial. The only other persons who may be permitted to be present at the proceeding are—

(I)the attorney for the Government;

(II)the attorney for the defendant;

(III)the child’s attorney or guardian ad litem appointed under subsection (h);

(IV)persons necessary to operate the videotape equipment;

(V)subject to clause (iv), the defendant; and

(VI)other persons whose presence is determined by the court to be necessary to the welfare and well-being of the child.

The defendant shall be afforded the rights applicable to defendants during trial, including the right to an attorney, the right to be confronted with the witness against the defendant, and the right to cross-examine the child.

(iv)If the preliminary finding of inability under clause (i) is based on evidence that the child is unable to testify in the physical presence of the defendant, the court may order that the defendant, including a defendant represented pro se, be excluded from the room in which the deposition is conducted. If the court orders that the defendant be excluded from the deposition room, the court shall order that 2-way closed circuit television equipment relay the defendant’s image into the room in which the child is testifying, and the child’s testimony into the room in which the defendant is viewing the proceeding, and that the defendant be provided with a means of private, contemporaneous communication with the defendant’s attorney during the deposition.

(v)The complete record of the examination of the child, including the image and voices of all persons who in any way participate in the examination, shall be made and preserved on video tape in addition to being stenographically recorded. The videotape shall be transmitted to the clerk of the court in which the action is pending and shall be made available for viewing to the prosecuting attorney, the defendant, and the defendant’s attorney during ordinary business hours.

(C)If at the time of trial the court finds that the child is unable to testify as for a reason described in subparagraph (B)(i), the court may admit into evidence the child’s videotaped deposition in lieu of the child’s testifying at the trial. The court shall support a ruling under this subparagraph with findings on the record.

(D)Upon timely receipt of notice that new evidence has been discovered after the original videotaping and before or during trial, the court, for good cause shown, may order an additional videotaped deposition. The testimony of the child shall be restricted to the matters specified by the court as the basis for granting the order.

(E)In connection with the taking of a videotaped deposition under this paragraph, the court may enter a protective order for the purpose of protecting the privacy of the child.

(F)The videotape of a deposition taken under this paragraph shall be destroyed 5 years after the date on which the trial court entered its judgment, but not before a final judgment is entered on appeal including Supreme Court review. The videotape shall become part of the court record and be kept by the court until it is destroyed.

United States Government work; public domain under 17 U.S.C. § 105.