act-2004-0-87•Pennsylvania Act 2004-87 — JUDICIAL CODE (42 PA.C.S.) - CHILD VICTIMS AND WITNESSES
Pennsylvania Act 2004-87 — JUDICIAL CODE (42 PA.C.S.) - CHILD VICTIMS AND WITNESSES
act-2004-0-872004 Pa. Act 87Law
Act text
JUDICIAL CODE (42 PA.C.S.) - CHILD VICTIMS AND WITNESSES
Act of Jul. 15, 2004, P.L. 736, No. 87 Cl. 42
Session of 2004
No. 2004-87
SB 979
AN ACT
Amending Title 42 (Judiciary and Judicial Procedure) of the
Pennsylvania Consolidated Statutes, further providing for
declaration of policy; defining "contemporaneous alternative
method"; repealing provisions relating to videotaped
depositions by a child victim or child material witness;
further providing for recorded testimony, for testimony by
contemporaneous alternative methods, for admissibility of
certain statements, for hearsay, for use of dolls, for child
victims of sexual or physical abuse and for comparative
negligence.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 5981 of Title 42 of the Pennsylvania
Consolidated Statutes is amended to read:
§ 5981. Declaration of policy.
In order to promote the best interests of the children of
this Commonwealth, especially those children who are material
witnesses to or victims of crimes, [and in order to implement
the constitutional amendment adopted on November 7, 1995,] the
General Assembly declares its intent, in this subchapter, to
provide these children, where necessity is shown, procedures
which will protect them during their involvement with the
criminal justice system. The General Assembly urges the news
media to use significant restraint and caution in revealing the
identity or address of children who are victims of or witnesses
to crimes or other information that would reveal the name or
address of the child victim or witness.
Section 2. Section 5982 of Title 42 is amended by adding a
definition to read:
§ 5982. Definitions.
The following words and phrases when used in this subchapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
* * *
"Contemporaneous alternative method." Any method of
capturing the visual images, oral communications and other
information presented during a prosecution or adjudication
involving a child victim or a child material witness and
transmitting and receiving such images, communications and other
information at or about the time of their creation, including,
but not limited to, closed-circuit television, streaming image
sent via the Internet or an intranet and any other devices or
systems used to accomplish such ends.
* * *
Section 3. Section 5984 of Title 42 is repealed.
Section 4. Sections 5984.1, 5985, 5985.1, 5986, 5987 and
5988 of Title 42 are amended to read:
§ 5984.1. [Testimony by videotaped recording.] Recorded
testimony.
(a) [Videotape] Recording.--Subject to subsection (b), in
any prosecution or adjudication involving a child victim or
child material witness, the court may order [the taking of] that
the child victim's or child material witness's testimony [by
videotaped recording.] be recorded for presentation in court by
any method that accurately captures and preserves the visual
images, oral communications and other information presented
during such testimony. The testimony shall be taken under oath
or affirmation before the court in chambers or in a special
facility designed for taking the [videotaped] recorded 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 victim or
child material witness, 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 victim or child material witness but shall ensure that the
child victim or material witness cannot hear or see the
defendant. Examination and cross-examination of the child victim
or child material witness shall proceed in the same manner as
[permitted at trial] normally permitted. 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] recorded testimony, the court must determine, based
on evidence presented to it, that testifying either in an open
forum in the presence and full view of the finder of fact or in
the defendant's presence will result in the child victim or
child material witness suffering serious emotional distress
[such that the child victim] that would substantially impair the
child victim's or child material [witness cannot reasonably]
witness's ability to 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.
(c) Counsel and confrontation.--
(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.]
§ 5985. Testimony by [closed-circuit television]
contemporaneous alternative method.
(a) [Closed-circuit television] Contemporaneous alternative
method.--Subject to subsection (a.1), in any prosecution or
adjudication involving a child victim or a child material
witness, the court may order that the testimony of the child
victim or child material witness be taken under oath or
affirmation in a room other than the courtroom and [televised by
closed-circuit equipment to be viewed by the court and the
finder of fact in the proceeding] transmitted by a
contemporaneous alternative method. Only the attorneys for the
defendant and for the Commonwealth, the court reporter, the
judge, persons necessary to operate the equipment and any person
whose presence would contribute to the welfare and well-being of
the child victim or child material witness, including persons
designated under section 5983 (relating to rights and services),
may be present in the room with the child during his testimony.
The court shall permit the defendant to observe and hear the
testimony of the child victim or child material witness but
shall ensure that the child cannot hear or see the defendant.
The court shall make certain that the defendant and defense
counsel have adequate opportunity to communicate for the
purposes of providing an effective defense. Examination and
cross-examination of the child victim or child material witness
shall proceed in the same manner as normally permitted [at
trial].
(a.1) Determination.--Before the court orders the child
victim or the child material witness to testify by [closed-
circuit television] a contemporaneous alternative method, the
court must determine, based on evidence presented to it, that
testifying either in an open forum in the presence and full view
of the finder of fact or in the defendant's presence will result
in the child victim or child material witness suffering serious
emotional distress [such that the child victim] that would
substantially impair the child victim's or child material
[witness cannot] witness's ability to 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.
(a.2) Counsel and confrontation.--
(1) If the court observes or questions the child victim
or child material witness under subsection (a.1)(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
(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 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.]
§ 5985.1. Admissibility of certain statements.
(a) General rule.--An out-of-court statement made by a child
victim or witness, who at the time the statement was made was 12
years of age or younger, describing [physical abuse, indecent
contact or] any of the offenses enumerated in [18 Pa.C.S. Ch. 31
(relating to sexual offenses) performed with or on the child by
another,] 18 Pa.C.S. Chs. 25 (relating to criminal homicide), 27
(relating to assault), 29 (relating to kidnapping), 31 (relating
to sexual offenses), 35 (relating to burglary and other criminal
intrusion) and 37 (relating to robbery), not otherwise
admissible by statute or rule of evidence, is admissible in
evidence in any criminal or civil proceeding if:
(1) the court finds, in an in camera hearing, that the
evidence is relevant and that the time, content and
circumstances of the statement provide sufficient indicia of
reliability; and
(2) the child either:
(i) testifies at the proceeding; or
(ii) is unavailable as a witness.
(a.1) Emotional distress.--[Before the court makes a finding
under subsection (a)(2)(ii),] In order to make a finding under
subsection (a)(2)(ii) that the child is unavailable as a
witness, the court must determine, based on evidence presented
to it, that testimony by the child as a witness will result in
the child suffering serious emotional distress [such that the
child cannot reasonably] that would substantially impair the
child's ability to 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.
(a.2) Counsel and confrontation.--If the court hears
testimony in connection with making a finding under subsection
(a)(2)(ii), all of the following apply:
(1) Except as provided in paragraph (2), the defendant,
the attorney for the defendant and the attorney for the
Commonwealth or, in the case of a civil proceeding, the
attorney for the plaintiff has the right to be present.
(2) If the court observes or questions the child, the
court shall not permit the defendant to be present.
(b) Notice required.--A statement otherwise admissible under
subsection (a) shall not be received into evidence unless the
proponent of the statement notifies the adverse party of the
proponent's intention to offer the statement and the particulars
of the statement sufficiently in advance of the proceeding at
which the proponent intends to offer the statement into evidence
to provide the adverse party with a fair opportunity to prepare
to meet the statement.
§ 5986. Hearsay.
(a) General rule.--A statement made by a child describing
acts and attempted acts of indecent contact, sexual intercourse
or deviate sexual intercourse performed with or on the child by
another, not otherwise admissible by statute or court ruling, is
admissible in evidence in a dependency proceeding initiated
under Chapter 63 (relating to juvenile matters), involving that
child or other members of that child's family, if:
(1) the court finds, in an in camera hearing, that the
evidence is relevant and that the time, content and
circumstances of the statement provide sufficient indicia of
reliability; and
(2) the child either:
(i) testifies at the proceeding; or
(ii) is found by the court to be unavailable as a
witness.
(b) Emotional distress.--In order to make a finding under
subsection (a)(2)(ii) that the child is unavailable as a
witness, the court must determine, based on evidence presented
to it, that testimony by the child as a witness will result in
the child suffering serious emotional distress [such that the
child cannot reasonably] that would substantially impair the
child's ability to 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.
(c) Counsel and confrontation.--If the court hears testimony
in connection with making a finding under subsection (a)(2)(ii),
all of the following apply:
(1) Except as provided in paragraph (2), the defendant,
the attorney for the defendant and the attorney for the
Commonwealth have the right to be present.
(2) If the court observes or questions the child, the
court shall not permit the defendant to be present.
§ 5987. Use of dolls.
In any criminal proceeding charging physical abuse, indecent
contact or any of the offenses enumerated in 18 Pa.C.S. Ch. 31
(relating to sexual offenses), the court shall permit the use of
anatomically correct dolls or mannequins to assist [an alleged
victim] a child in testifying on direct examination and cross-
examination.
§ 5988. Victims of sexual or physical abuse.
(a) Release of name prohibited.--[In] Notwithstanding any
other provision of law to the contrary, in a prosecution
involving a child victim of sexual or physical abuse, unless the
court otherwise orders, the name of the child victim shall not
be disclosed by officers or employees of the court to the
public, and any records revealing the name of the child victim
will not be open to public inspection.
(b) Penalty.--Any person who violates this section commits a
misdemeanor of the third degree.
Section 5. Section 7102(d) of Title 42 is amended and the
section is amended by adding a subsection to read:
§ 7102. Comparative negligence.
* * *
(b.3) Off-road vehicle riding.--
(1) Off-road vehicle riding area operators shall have no
duty to protect riders from common, frequent, expected and
nonnegligent risks inherent to the activity, including
collisions with riders or objects.
(2) The doctrine of knowing voluntary assumption of risk
shall apply to all actions to recover damages for negligence
resulting in death or injury to person or property brought
against any off-road vehicle riding area operator.
(3) Nothing in this subsection shall be construed in any
way to abolish or modify a cause of action against a
potentially responsible party other than an off-road vehicle
riding area operator.
* * *
(d) Definitions.--As used in this section the following
words and phrases shall have the meanings given to them in this
subsection:
"Defendant or defendants." Includes impleaded defendants.
"Off-road vehicle." A motorized vehicle that is used off-
road for sport or recreation. The term includes snowmobiles,
all-terrain vehicles, motorcycles and four-wheel drive vehicles.
"Off-road vehicle riding area." Any area or facility
providing recreational activities for off-road vehicles.
"Off-road vehicle riding area operator." A person or
organization owning or having operational responsibility for any
off-road vehicle riding area. The term includes:
(1) Agencies and political subdivisions of this
Commonwealth.
(2) Authorities created by political subdivisions.
(3) Private companies.
"Plaintiff." Includes counter claimants and cross-claimants.
Section 6. This act shall take effect immediately.
APPROVED--The 15th day of July, A. D. 2004.
EDWARD G. RENDELL
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