Authorizes use of closed-circuit television for the testimony of domestic violence victim witnesses in a criminal proceeding subject to the same restrictions as are applicable to child witnesses.
STATE OF NEW YORK
________________________________________________________________________
849--A
2019-2020 Regular Sessions
IN SENATE
January 9, 2019
___________
Introduced by Sens. BENJAMIN, FUNKE, KAPLAN -- read twice and ordered
printed, and when printed to be committed to the Committee on Codes --
recommitted to the Committee on Codes in accordance with Senate Rule
6, sec. 8 -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee
AN ACT to amend the criminal procedure law, in relation to authorizing
the use of closed-circuit television for vulnerable domestic violence
victim witnesses
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Article 65 of the criminal procedure law, as added by chap-
2 ter 505 of the laws of 1985, subdivision 1 of section 65.00, and subdi-
3 vision 7 and paragraph (k) of subdivision 10 of section 65.20 as amended
4 by chapter 320 of the laws of 2006, subdivision 9 of section 65.20 as
5 amended by section 4 of part LLL of chapter 59 of the laws of 2019,
6 subdivisions 11 and 12 of section 65.20 as amended by chapter 455 of the
7 laws of 1991, subdivision 1 of section 65.10 as amended, subdivision 2
8 of section 65.20 as added, the opening paragraph of subdivision 10 of
9 section 65.20 as amended, and subdivisions 3, 4, 5, 6, 7, 8, 10, 11, 12
10 and 13 of section 65.20 as renumbered by chapter 548 of the laws of
11 2007, is amended to read as follows:
12 ARTICLE 65
13 USE OF CLOSED-CIRCUIT TELEVISION FOR
14 CERTAIN [CHILD] WITNESSES
15 Section 65.00 Definitions.
16 65.10 Closed-circuit television; general rule; declaration of
17 vulnerability.
18 65.20 Closed-circuit television; procedure for application and
19 grounds for determination.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04701-02-0
S. 849--A 2
1 65.30 Closed-circuit television; special testimonial [proce-
2 dure] procedures.
3 § 65.00 Definitions.
4 As used in this article:
5 1. "Child witness" means a person fourteen years old or less who is or
6 will be called to testify in a criminal proceeding, other than a grand
7 jury proceeding, concerning an offense defined in article one hundred
8 thirty of the penal law or section 255.25, 255.26 or 255.27 of such law
9 which is the subject of such criminal proceeding.
10 2. "Domestic violence victim witness" means an individual who is a
11 victim of a family offense, as defined in subdivision one of section
12 530.11 of this chapter.
13 3. "Vulnerable [child] witness" means a child witness or a domestic
14 violence victim witness whom a court has declared to be vulnerable.
15 [3.] 4. "Testimonial room" means any room, separate and apart from the
16 courtroom, which is furnished comfortably and less formally than a
17 courtroom and from which the testimony of a vulnerable child witness can
18 be transmitted to the courtroom by means of live, two-way closed-circuit
19 television.
20 [4.] 5. "Live, two-way closed-circuit television" means a simultaneous
21 transmission, by closed-circuit television, or other electronic means,
22 between the courtroom and the testimonial room in accordance with the
23 provisions of section 65.30 of this article.
24 [5.] 6. "Operator" means the individual authorized by the court to
25 operate the closed-circuit television equipment used in accordance with
26 the provisions of this article.
27 [6.] 7. A person occupies "a position of authority with respect to a
28 child" when he or she is a parent, guardian or other person responsible
29 for the custody or care of [the] a child at the relevant time or is any
30 other person who maintains an ongoing personal relationship with such
31 parent, guardian or other person responsible for custody or care, which
32 relationship involves his or her living, or his or her frequent and
33 repeated presence, in the same household or premises as the child.
34 § 65.10 Closed-circuit television; general rule; declaration of vulner-
35 ability.
36 1. A child witness or a domestic violence victim witness shall be
37 declared vulnerable when the court, in accordance with the provisions of
38 section 65.20 of this article, determines by clear and convincing
39 evidence that it is likely that such child witness or such domestic
40 violence victim witness will suffer serious mental or emotional harm if
41 required to testify at a criminal proceeding without the use of live,
42 two-way closed-circuit television and that the use of such live, two-way
43 closed-circuit television will diminish the likelihood or extent of,
44 such harm.
45 2. When the court declares a child witness or a domestic violence
46 victim witness to be vulnerable, it shall, except as provided in subdi-
47 vision four of section 65.30 of this article, authorize the taking of
48 the testimony of the vulnerable [child] witness from the testimonial
49 room by means of live, two-way closed-circuit television. Under no
50 circumstances shall the provisions of this article be construed to
51 authorize a closed-circuit television system by which events in the
52 courtroom are not transmitted to the testimonial room during the testi-
53 mony of the vulnerable [child] witness.
54 3. Nothing [herein] in this article shall be [contrued] construed to
55 preclude the court from exercising its power to close the courtroom or
S. 849--A 3
1 from exercising any authority it otherwise may have to protect the well-
2 being of a witness and the rights of the defendant.
3 § 65.20 Closed-circuit television; procedure for application and grounds
4 for determination.
5 1. Prior to the commencement of a criminal proceeding[;], other than a
6 grand jury proceeding, either party may apply to the court for an order
7 declaring that a child witness or a domestic violence victim witness is
8 vulnerable.
9 2. A child witness or a domestic violence victim witness should be
10 declared vulnerable when the court, in accordance with the provisions of
11 this section, determines by clear and convincing evidence that the child
12 witness or the domestic violence victim witness would suffer serious
13 mental or emotional harm that would substantially impair the child
14 witness' or the domestic violence victim witness' ability to communicate
15 with the finder of fact without the use of live, two-way closed-circuit
16 television.
17 3. A motion pursuant to subdivision one of this section must be made
18 in writing at least eight days before the commencement of trial or other
19 criminal proceeding upon reasonable notice to the other party and with
20 an opportunity to be heard.
21 4. The motion papers must state the basis for the motion and must
22 contain sworn allegations of fact which, if true, would support a deter-
23 mination by the court that the child witness or the domestic violence
24 victim witness is vulnerable. Such allegations may be based upon the
25 personal knowledge of the deponent or upon information and belief,
26 provided that, in the latter event, the sources of such information and
27 the grounds for such belief are stated.
28 5. The answering papers may admit or deny any of the alleged facts and
29 may, in addition, contain sworn allegations of fact relevant to the
30 motion, including the rights of the defendant, the need to protect the
31 child witness or the domestic violence victim witness and the integrity
32 of the truth-finding function of the trier of fact.
33 6. Unless all material facts alleged in support of the motion made
34 pursuant to subdivision one of this section are conceded, the court
35 shall, in addition to examining the papers and hearing oral argument,
36 conduct an appropriate hearing for the purpose of making findings of
37 fact essential to the determination of the motion. Except as provided in
38 subdivision [six] seven of this section, it may subpoena or call and
39 examine witnesses, who must either testify under oath or be permitted to
40 give unsworn testimony pursuant to subdivision two of section 60.20 of
41 this article and must authorize the attorneys for the parties to do the
42 same.
43 7. Notwithstanding any other provision of law, the child witness or
44 the domestic violence victim witness who is alleged to be vulnerable may
45 not be compelled to testify at such hearing or to submit to any psycho-
46 logical or psychiatric examination. The failure of the child witness or
47 the domestic violence victim witness to testify at such hearing shall
48 not be a ground for denying a motion made pursuant to subdivision one of
49 this section. Prior statements made by the child witness relating to any
50 allegations of conduct constituting an offense defined in article one
51 hundred thirty of the penal law or incest as defined in section 255.25,
52 255.26 or 255.27 of such law, or prior statements made by the child
53 witness or the domestic violence victim witness relating to any allega-
54 tion of words or conduct constituting an attempt to prevent, impede or
55 deter [the child] such witness from cooperating in the investigation or
56 prosecution of the offense shall be admissible at such hearing,
S. 849--A 4
1 provided, however, that a declaration that a child witness or a domestic
2 violence victim witness is vulnerable may not be based solely upon such
3 prior statements.
4 8. (a) Notwithstanding any of the provisions of article forty-five of
5 the civil practice law and rules, any physician, psychologist, nurse or
6 social worker who has treated a child witness or a domestic violence
7 victim witness may testify at a hearing conducted pursuant to subdivi-
8 sion [five] six of this section concerning the treatment of such child
9 witness or such domestic violence victim witness as such treatment
10 relates to the issue presented at the hearing, provided that any other-
11 wise applicable statutory privileges concerning communications between
12 the child witness or the domestic violence victim witness and such
13 physician, psychologist, nurse or social worker in connection with such
14 treatment shall not be deemed waived by such testimony alone, except to
15 the limited extent of permitting the court alone to examine in camera
16 reports, records or documents, if any, prepared by such physician,
17 psychologist, nurse or social worker. If upon such examination the court
18 determines that such reports, records or documents, or any one or
19 portion thereof, contain information material and relevant to the issue
20 of whether the child witness or the domestic violence victim witness is
21 a vulnerable [child] witness, the court shall disclose such information
22 to both the attorney for the defendant and the district attorney.
23 (b) At any time after a motion has been made pursuant to subdivision
24 one of this section, upon the demand of the other party the moving party
25 must furnish the demanding party with a copy of any and all of such
26 records, reports or other documents in the possession of such other
27 party and must, in addition, supply the court with a copy of all such
28 reports, records or other documents which are the subject of the demand.
29 At any time after a demand has been made pursuant to this paragraph, the
30 moving party may demand that property of the same kind or character in
31 possession of the party that originally made such demand be furnished to
32 the moving party and, if so furnished, be supplied, in addition, to the
33 court.
34 9. (a) Prior to the commencement of the hearing conducted pursuant to
35 subdivision six of this section, the district attorney shall, subject to
36 a protective order, comply with the provisions of subdivision one of
37 section 245.20 of this chapter as they concern any witness whom the
38 district attorney intends to call at the hearing and the child witness
39 or domestic violence victim witness.
40 (b) Before a defendant calls a witness at such hearing, he or she
41 must, subject to a protective order, comply with the provisions of
42 subdivision four of section 245.20 of this chapter as they concern all
43 the witnesses the defendant intends to call at such hearing.
44 10. The court may consider, in determining whether there are factors
45 which would cause the child witness or the domestic violence victim
46 witness to suffer serious mental or emotional harm, a finding that any
47 one or more of the following circumstances have been established by
48 clear and convincing evidence:
49 (a) The manner of the commission of the offense of which the defendant
50 is accused was particularly heinous or was characterized by aggravating
51 circumstances.
52 (b) The child witness or the domestic violence victim witness is
53 particularly young or otherwise particularly subject to psychological
54 harm on account of a physical or mental condition which existed before
55 the alleged commission of the offense.
S. 849--A 5
1 (c) At the time of the alleged offense, the defendant occupied a posi-
2 tion of authority with respect to the child witness.
3 (d) The offense or offenses charged were part of an ongoing course of
4 conduct committed by the defendant against the child witness or the
5 domestic violence victim witness over an extended period of time.
6 (e) A deadly weapon or dangerous instrument was allegedly used during
7 the commission of the crime.
8 (f) The defendant has inflicted serious physical injury upon the child
9 witness or the domestic violence victim witness.
10 (g) A threat, express or implied, of physical violence to the child
11 witness or the domestic violence victim witness, or a third person if
12 [the child] such witness were to report the incident to any person or
13 communicate information to or cooperate with a court, grand jury, prose-
14 cutor, police officer or peace officer concerning the incident has been
15 made by or on behalf of the defendant.
16 (h) A threat, express or implied, of the incarceration of a parent or
17 guardian of the child witness or the domestic violence victim witness,
18 the removal of the child witness or the domestic violence victim witness
19 from the family or the dissolution of the family of the child witness or
20 the domestic violence victim witness if [the child] such witness were to
21 report the incident to any person or communicate information to or coop-
22 erate with a court, grand jury, prosecutor, police officer or peace
23 officer concerning the incident has been made by or on behalf of the
24 defendant.
25 (i) A witness other than the child witness or the domestic violence
26 victim witness has received a threat of physical violence directed at
27 such witness or to a third person by or on behalf of the defendant.
28 (j) The defendant, at the time of the inquiry, (i) is living in the
29 same household with the child witness or the domestic violence victim
30 witness, (ii) has ready access to the child witness or the domestic
31 violence victim witness or (iii) is providing substantial financial
32 support for the child witness or the domestic violence victim witness.
33 (k) The child witness or the domestic violence victim witness has
34 previously been the victim of an offense defined in article one hundred
35 thirty of the penal law or incest as defined in section 255.25, 255.26
36 or 255.27 of such law.
37 (l) According to expert testimony, the child witness or the domestic
38 violence victim witness would be particularly [suceptible] susceptible
39 to psychological harm if required to testify in open court or in the
40 physical presence of the defendant.
41 11. Irrespective of whether a motion was made pursuant to subdivision
42 one of this section, the court, at the request of either party or on its
43 own motion, may decide that a child witness or a domestic violence
44 victim witness may be vulnerable based on its own observations that a
45 child witness or a domestic violence victim witness who has been called
46 to testify at a criminal proceeding is suffering severe mental or
47 emotional harm and therefore is physically or mentally unable to testify
48 or to continue to testify in open court or in the physical presence of
49 the defendant and that the use of live, two-way closed-circuit tele-
50 vision is necessary to enable [the child] such witness to testify. If
51 the court so decides, it must conduct the same hearing that subdivision
52 [five] six of this section requires when a motion is made pursuant to
53 subdivision one of this section, and it must make findings of fact
54 pursuant to subdivisions [nine and eleven] ten and twelve of this
55 section, before determining that the child witness or the domestic
56 violence victim witness is vulnerable.
S. 849--A 6
1 12. In deciding whether a child witness or a domestic violence victim
2 witness is vulnerable, the court shall make findings of fact which
3 reflect the causal relationship between the existence of any one or more
4 of the factors set forth in subdivision [nine] ten of this section or
5 other relevant factors which the court finds are established and the
6 determination that the child witness or the domestic violence victim
7 witness is vulnerable. If the court is satisfied that the child witness
8 or the domestic violence victim witness is vulnerable and that, under
9 the facts and circumstances of the particular case, the defendant's
10 constitutional rights to an impartial jury or of confrontation will not
11 be impaired, it may enter an order granting the application for the use
12 of live, two-way closed-circuit television.
13 13. When the court has determined that a child witness or a domestic
14 violence victim witness is a vulnerable [child] witness, it shall make a
15 specific finding as to whether placing the defendant and the child
16 witness or the domestic violence victim witness in the same room during
17 the testimony of the child witness or the domestic violence victim
18 witness will contribute to the likelihood that [the child] such witness
19 will suffer severe mental or emotional harm. If the court finds that
20 placing the defendant and the child witness or the domestic violence
21 victim witness in the same room during the testimony of the child
22 witness or the domestic violence victim witness will contribute to the
23 likelihood that [the child] such witness will suffer severe mental or
24 emotional harm, the order entered pursuant to subdivision [eleven]
25 twelve of this section shall direct that the defendant remain in the
26 courtroom during the testimony of the vulnerable [child] witness.
27 § 65.30 Closed-circuit television; special testimonial procedures.
28 1. When the court has entered an order pursuant to section 65.20 of
29 this article, the testimony of the vulnerable [child] witness shall be
30 taken in the testimonial room and the image and voice of the vulnerable
31 [child] witness, as well as the image of all other persons other than
32 the operator present in the testimonial room, shall be transmitted live
33 by means of closed-circuit television to the courtroom. The courtroom
34 shall be equipped with monitors sufficient to permit the judge, jury,
35 defendant and attorneys to observe the demeanor of the vulnerable
36 [child] witness during his or her testimony. Unless the courtroom has
37 been closed pursuant to court order, the public shall also be permitted
38 to hear the testimony and view the image of the vulnerable [child]
39 witness.
40 2. In all instances, the image of the jury shall be simultaneously
41 transmitted to the vulnerable [child] witness in the testimonial room.
42 If the court order issued pursuant to section 65.20 of this article
43 specifies that the vulnerable [child] witness shall testify outside the
44 physical presence of the defendant, the image of the defendant and the
45 image and voice of the person examining the vulnerable [child] witness
46 shall also be simultaneously transmitted to the vulnerable [child]
47 witness in the testimonial room.
48 3. The operator shall place herself or himself and the closed-circuit
49 television equipment in a position that permits the entire testimony of
50 the vulnerable [child] witness to be transmitted to the courtroom but
51 limits the ability of the vulnerable [child] witness to see or hear the
52 operator or the equipment.
53 4. Notwithstanding any provision of this article, if the court in a
54 particular case involving a vulnerable [child] witness determines that
55 there is no live, two-way closed-circuit television equipment available
56 in the court or another court in the county or which can be transported
S. 849--A 7
1 to the court from another county or that such equipment, if available,
2 is technologically inadequate to protect the constitutional rights of
3 the defendant, it shall not permit the use of the closed-circuit tele-
4 vision procedures authorized by this article.
5 5. If the order of the court entered pursuant to section 65.20 of this
6 article requires that the defendant remain in the courtroom, the attor-
7 ney for the defendant and the district attorney shall also remain in the
8 courtroom unless the court is satisfied that their presence in the
9 testimonial room will not impede full and private communication between
10 the defendant and his or her attorney and will not encourage the jury to
11 draw an inference adverse to the interest of the defendant.
12 6. Upon request of the defendant, the court shall instruct the jury
13 that they are to draw no inference from the use of live, two-way closed-
14 circuit television in the examination of the vulnerable [child] witness.
15 7. The vulnerable [child] witness shall testify under oath except as
16 specified in subdivision two of section 60.20 of this article. The exam-
17 ination and cross-examination of the vulnerable [child] witness shall,
18 in all other respects, be conducted in the same manner as if the vulner-
19 able [child] witness had testified in the courtroom.
20 8. When the testimony of the vulnerable [child] witness is transmitted
21 from the testimonial room into the courtroom, the court stenographer
22 shall record the [textimony] testimony in the same manner as if the
23 vulnerable [child] witness had testified in the courtroom.
24 § 2. This act shall take effect immediately and shall apply to all
25 criminal actions and proceedings commenced prior to the effective date
26 of this act but still pending on such date as well as all criminal
27 actions and proceedings commenced on or after such effective date.
28 Provided that the amendments to article 65 of the criminal procedure
29 law, made by section one of this act, shall not affect the expiration
30 and repeal of such article and shall be deemed repealed therewith.
