HF 720

as introduced - 86th Legislature (2009 - 2010) Posted on 02/09/2010 01:41am

A bill for an act
relating to crimes; adopting the Uniform Child Witness Testimony by Alternative
Methods Act; amending Minnesota Statutes 2008, section 595.02, subdivisions
3, 4; proposing coding for new law in Minnesota Statutes, chapter 595.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2008, section 595.02, subdivision 3, is amended to read:

Subd. 3.

Certain out-of-court statements admissible.

new text begin (a) new text end An out-of-court
statement made by a child under the age of ten years or a person who is mentally impaired
as defined in section 609.341, subdivision 6, alleging, explaining, denying, or describing
any act of sexual contact or penetration performed with or on the child or any act of
physical abuse of the child or the person who is mentally impaired by another, not
otherwise admissible by statute or rule of evidence, is admissible as substantive evidence
if:

deleted text begin (a) deleted text end new text begin (1) new text end the court or person authorized to receive evidence finds, in a hearing
conducted outside of the presence of the jury, that the time, content, and circumstances
of the statement and the reliability of the person to whom the statement is made provide
sufficient indicia of reliability; deleted text begin and
deleted text end

deleted text begin (b) deleted text end new text begin (2) new text end the child or person mentally impaired as defined in section 609.341,
subdivision 6, either:

(i) testifies at the proceedings new text begin , or for a child only, testifies by an alternative method
under section 595.10 new text end ; or

(ii) is unavailable as a witness and there is corroborative evidence of the act; and

deleted text begin (c) deleted text end new text begin (3) new text end 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.

new text begin (b) new text end For purposes of this subdivision, an out-of-court statement includes video, audio,
or other recorded statements. An unavailable witness includes an incompetent witness.

Sec. 2.

Minnesota Statutes 2008, section 595.02, subdivision 4, is amended to read:

Subd. 4.

Court order.

(a) In a proceeding in which a child less than 12 years
of age is alleging, denying, or describing:

(1) an act of physical abuse or an act of sexual contact or penetration performed with
or on the child or any other person by another; or

(2) an act that constitutes a crime of violence committed against the child or any
other person,

the court may, upon its own motion or upon the motion of any party, order that the
testimony of the child be taken new text begin by an alternative method under section 595.10, such as
new text end in a room other than the courtroom or in the courtroom and televised at the same time
by closed-circuit equipment, or recorded for later showing to be viewed by the jury in
the proceeding, to minimize the trauma to the child of testifying in the courtroom setting
and, where necessary, to provide a setting more amenable to securing the child witness's
uninhibited, truthful testimony.

deleted text begin (b) At the taking of testimony under this subdivision, only the judge, the attorneys
for the defendant and for the state, any person whose presence would contribute to
the welfare and well-being of the child, persons necessary to operate the recording or
closed-circuit equipment and, in a child protection proceeding under chapter 260 or a
dissolution or custody proceeding under chapter 518, the attorneys for those parties with a
right to participate may be present with the child during the child's testimony.
deleted text end

deleted text begin (c) The court shall permit the defendant in a criminal or delinquency matter to
observe and hear the testimony of the child in person. If the court, upon its own motion or
the motion of any party, finds in a hearing conducted outside the presence of the jury, that
the presence of the defendant during testimony taken pursuant to this subdivision would
psychologically traumatize the witness so as to render the witness unavailable to testify,
the court may order that the testimony be taken in a manner that:
deleted text end

deleted text begin (1) the defendant can see and hear the testimony of the child in person and
communicate with counsel, but the child cannot see or hear the defendant; or
deleted text end

deleted text begin (2) the defendant can see and hear the testimony of the child by video or television
monitor from a separate room and communicate with counsel, but the child cannot see or
hear the defendant.
deleted text end

deleted text begin (d) deleted text end new text begin (b) new text end As used in this subdivision, "crime of violence" has the meaning given it in
section 624.712, subdivision 5, and includes violations of section 609.26.

Sec. 3.

new text begin [595.10] CHILD WITNESS TESTIMONY BY ALTERNATIVE
METHODS.
new text end

new text begin Subdivision 1. new text end

new text begin Citation. new text end

new text begin This section may be cited as the Uniform Child Witness
Testimony by Alternative Methods Act.
new text end

new text begin Subd. 2. new text end

new text begin Definitions. new text end

new text begin (a) As used in this section, the terms in paragraphs (b) to (e)
have the meanings given them.
new text end

new text begin (b) "Alternative method" means a method by which a child witness testifies that does
not include all of the following:
new text end

new text begin (1) having the child testify in person in an open forum;
new text end

new text begin (2) having the child testify in the presence and full view of the finder of fact and
presiding officer; and
new text end

new text begin (3) allowing all of the parties to be present, to participate, and to view and be
viewed by the child.
new text end

new text begin (c) "Child witness" means an individual under the age of 13 who has been or will be
called to testify in a proceeding.
new text end

new text begin (d) "Criminal proceeding" means a trial or hearing before a court in a prosecution
of a person charged with violating a criminal law of this state or a juvenile delinquency
proceeding involving conduct that if engaged in by an adult would constitute a violation of
a criminal law of this state.
new text end

new text begin (e) "Noncriminal proceeding" means a trial or hearing before a court or state agency
having judicial or quasi-judicial powers, other than a criminal proceeding.
new text end

new text begin Subd. 3. new text end

new text begin Applicability. new text end

new text begin This section applies to the testimony of a child witness in a
criminal or noncriminal proceeding. This section does not preclude:
new text end

new text begin (1) in a noncriminal proceeding, any other procedure permitted by law for a child
witness to testify; or
new text end

new text begin (2) in a juvenile delinquency proceeding involving conduct that if engaged in by
an adult would constitute a violation of a criminal law of this state, testimony by a child
witness in a closed forum as required by law that permits or requires closed juvenile
hearings.
new text end

new text begin Subd. 4. new text end

new text begin Hearing whether to allow testimony by alternative method. new text end

new text begin (a) The
presiding officer in a criminal or noncriminal proceeding may order a hearing to determine
whether to allow a child witness to testify by an alternative method. The presiding officer,
for good cause shown, shall order the hearing upon motion of a party, a child witness,
or an individual determined by the presiding officer to have sufficient standing to act on
behalf of the child.
new text end

new text begin (b) A hearing to determine whether to allow a child witness to testify by an
alternative method must be conducted on the record after reasonable notice to all parties,
any nonparty movant, and any other person the presiding officer specifies. The child's
presence is not required at the hearing unless ordered by the presiding officer. In
conducting the hearing, the presiding officer is not bound by rules of evidence except the
rules of privilege.
new text end

new text begin Subd. 5. new text end

new text begin Standards for determining whether child witness may testify by
alternative method. new text end

new text begin (a) In a criminal proceeding, the presiding officer may allow a child
witness to testify by an alternative method only in the following situations:
new text end

new text begin (1) the child may testify other than in an open forum in the presence and full view of
the finder of fact if the presiding officer finds by clear and convincing evidence that the
child would suffer serious emotional trauma that would substantially impair the child's
ability to communicate with the finder of fact if required to testify in the open forum; and
new text end

new text begin (2) the child may testify other than face-to-face with the defendant if the presiding
officer finds by clear and convincing evidence that the child would suffer serious emotional
trauma that would substantially impair the child's ability to communicate with the finder
of fact if required to be confronted face-to-face by the defendant.
new text end

new text begin (b) In a noncriminal proceeding, the presiding officer may allow a child witness to
testify by an alternative method if the presiding officer finds by a preponderance of the
evidence that allowing the child to testify by an alternative method is necessary to serve
the best interests of the child or enable the child to communicate with the finder of fact. In
making this finding, the presiding officer shall consider:
new text end

new text begin (1) the nature of the proceeding;
new text end

new text begin (2) the age and maturity of the child;
new text end

new text begin (3) the relationship of the child to the parties in the proceeding;
new text end

new text begin (4) the nature and degree of emotional trauma that the child may suffer in testifying;
and
new text end

new text begin (5) any other relevant factor.
new text end

new text begin Subd. 6. new text end

new text begin Factors for determining whether to permit alternative method.
new text end

new text begin If the presiding officer determines that a standard under subdivision 5 has been met,
the presiding officer shall determine whether to allow a child witness to testify by an
alternative method and in doing so shall consider:
new text end

new text begin (1) alternative methods reasonably available;
new text end

new text begin (2) available means for protecting the interests of or reducing emotional trauma to
the child without resorting to an alternative method;
new text end

new text begin (3) the nature of the case;
new text end

new text begin (4) the relative rights of the parties;
new text end

new text begin (5) the importance of the proposed testimony of the child;
new text end

new text begin (6) the nature and degree of emotional trauma that the child may suffer if an
alternative method is not used; and
new text end

new text begin (7) any other relevant factor.
new text end

new text begin Subd. 7. new text end

new text begin Order regarding testimony by alternative method. new text end

new text begin (a) An order
allowing or disallowing a child witness to testify by an alternative method must state the
findings of fact and conclusions of law that support the presiding officer's determination.
new text end

new text begin (b) An order allowing a child witness to testify by an alternative method must:
new text end

new text begin (1) state the method by which the child is to testify;
new text end

new text begin (2) list any individual or category of individuals allowed to be in, or required to be
excluded from, the presence of the child during the testimony;
new text end

new text begin (3) state any special conditions necessary to facilitate a party's right to examine or
cross-examine the child;
new text end

new text begin (4) state any condition or limitation upon the participation of individuals present
during the testimony of the child; and
new text end

new text begin (5) state any other condition necessary for taking or presenting the testimony.
new text end

new text begin (c) The alternative method ordered by the presiding officer may be no more
restrictive of the rights of the parties than is necessary under the circumstances to serve
the purposes of the order.
new text end

new text begin Subd. 8. new text end

new text begin Right of party to examine child witness. new text end

new text begin An alternative method
ordered by the presiding officer must permit a full and fair opportunity for examination
or cross-examination of the child witness by each party.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective for criminal and noncriminal
proceedings beginning on or after August 1, 2009.
new text end