Pennsylvania Act 1996-161 — JUDICIARY AND JUDICIAL PROCEDURE (42 PA.C.S.) - AMEND

Act text

JUDICIARY AND JUDICIAL PROCEDURE (42 PA.C.S.) - AMEND
                 Act of Dec. 18, 1996, P.L. 1077, No. 161             Cl. 42
                             Session of 1996
                               No. 1996-161

     SB 1322

                                  AN ACT

     Amending Title 42 (Judiciary and Judicial Procedure) of the
        Pennsylvania Consolidated Statutes, amending provisions
        relating to child victims and witnesses.

        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 [and in recognition of the necessity of
     affording to children], especially those children who are
     material witnesses to or victims of crimes [additional
     consideration and different treatment from that of adults], 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 [with additional
     rights and protections], 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 restraint in revealing the identity or address of
     children who are victims of or witnesses to crimes.
        Section 2.  The definition of "child" or "children" in
     section 5982 of Title 42 is amended 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:
        "Child" or "children."  An individual or individuals under
     [14] 16 years of age. [In the case of an individual from 14 to
     15 years of age, there shall be a rebuttable presumption that
     the individual will benefit from the use of procedures in
     sections 5984 (relating to videotaped depositions) and 5985
     (relating to testimony by closed-circuit television). In the
     case of an individual from 16 to 17 years of age, there shall be
     a rebuttable presumption that the individual will not benefit
     from the use of procedures in sections 5984 and 5985.]
        * * *
        Section 3.  Section 5984 of Title 42 is amended to read:
      § 5984.  Videotaped depositions.
        (a)  Depositions.--[In] Subject to subsection (a.1), in any
     prosecution or adjudication involving a child victim or child
     material witness, the court may[, for good cause shown,] order
     the taking of a videotaped deposition of the child victim or
     child material witness [on motion of the child through his
     parent or guardian, or where applicable, the child's advocate or
     the attorney for the Commonwealth]. 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 [in
     person] 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 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 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 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.
        Section 4.  Title 42 is amended by adding a section to read:
      § 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
     victim's 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.
        (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.
        Section 5.  Sections 5985, 5985.1, 5986 and 5987 of Title 42
     are amended to read:
      § 5985.  Testimony by closed-circuit television.
        (a)  Closed-circuit television.--[The child victim or
     material witness, through his parent or guardian, or, where
     applicable, the child's advocate or the attorney for the
     Commonwealth may move, for good cause shown,] 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 [a child] 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. 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, 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 [in person] 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 shall proceed in the same manner as
     permitted at trial.
        (a.1)  Determination.--Before the court orders the child
     victim or the child material witness to testify by closed-
     circuit television, 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 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[, sexual intercourse or deviate sexual intercourse] 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, not
     otherwise admissible by statute or rule of evidence, is
     admissible in evidence in any criminal proceeding if:
            (1)  [The] 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] the child either:
                (i)  testifies at the proceeding; or
                (ii)  is unavailable as a witness [and there is
            corroborative evidence of the act].
        (a.1)  Emotional distress.--Before the court makes a finding
     under subsection (a)(2)(ii), 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 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 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.
        (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 [a court finds
     that the time, content and circumstances of this statement
     provide sufficient indicia of reliability.]:
            (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 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 [unlawful sexual contact
     or penetration with or on a child,] 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 in testifying on direct examination and cross-
     examination.
        Section 6.  This act shall apply to actions commenced on or
     after the effective date of this act.
        Section 7.  This act shall take effect in 60 days.

     APPROVED--The 18th day of December, A. D. 1996.

     THOMAS J. RIDGE