As Introduced 1
122nd General Assembly 4
Regular Session S. B. No. 53 5
1997-1998 6
SENATORS NEIN-CUPP-KEARNS-LATTA-WHITE 8
10
A B I L L
To amend sections 109.54, 2151.3511, 2907.41, 12
2937.11, and 2945.49 and to amend, for the 13
purpose of adopting a new section number as 14
indicated in parentheses, section 2907.41
(2945.481) of the Revised Code to expand the list 15
of offenses for which a criminal or juvenile 16
court may admit videotaped testimony of a child 17
victim of the offense or order the child victim's
testimony taken outside the courtroom and 18
televised into or videotaped for replay in the 19
courtroom and to permit the procedures to be used 20
when the victim is under 13 years of age.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 22
Section 1. That sections 109.54, 2151.3511, 2907.41, 24
2937.11, and 2945.49 be amended and section 2907.41 (2945.481) of 25
the Revised Code be amended for the purpose of adopting a new 26
section number as indicated in parentheses to read as follows: 27
Sec. 109.54. (A) The bureau of criminal identification 36
and investigation may investigate any criminal activity in this 37
state that is of statewide or intercounty concern when requested 38
by local authorities and may aid federal authorities, when 39
requested, in their investigation of any criminal activity in 40
this state. The bureau may investigate any criminal activity in 41
this state involving drug abuse or illegal drug distribution 42
prohibited under Chapter 3719. or 4729. of the Revised Code. The 43
superintendent and any agent of the bureau may participate, as 44
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the director of an organized crime task force established under 45
section 177.02 of the Revised Code or as a member of the 46
investigatory staff of a task force established under that 47
section of that nature, in an investigation of organized criminal 49
activity anywhere within this state under sections 177.01 to 50
177.03 of the Revised Code.
(B) The bureau may provide any trained investigative 52
personnel and specialized equipment that are requested by any 53
sheriff or chief of police, by the authorized designee of any 54
sheriff or chief of police, or by any other authorized law 55
enforcement officer to aid and assist the officer in the 56
investigation and solution of any crime or the control of any 57
criminal activity occurring within the officer's jurisdiction. 58
This assistance shall be furnished by the bureau without 59
disturbing or impairing any of the existing law enforcement 60
authority or the prerogatives of local law enforcement 61
authorities or officers. Investigators provided pursuant to this 62
section, or engaged in an investigation pursuant to section 63
109.83 of the Revised Code, may go armed in the same manner as 64
sheriffs and regularly appointed police officers under section 65
2923.12 of the Revised Code.
(C)(1) The bureau shall obtain recording equipment that 67
can be used to record depositions of the type described in 68
division (A) of section 2151.3511 and division (A) of section 69
2907.41 2945.481 of the Revised Code, or testimony of the type 70
described in division (D) of section 2151.3511 and division (D) 72
of section 2907.41 2945.481 or in division (C) of section 2937.11 73
of the Revised Code, shall obtain closed circuit equipment that 75
can be used to televise testimony of the type described in 76
division (C) of section 2151.3511 and division (C) of section 77
2907.41 2945.481 or in division (B) of section 2937.11 of the 79
Revised Code, and shall provide the equipment, upon request, to 80
any court for use in recording any deposition or testimony of one 81
of those types or in televising the testimony in accordance with 83
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the applicable division.
(2) The bureau shall obtain the names, addresses, and 85
telephone numbers of persons who are experienced in questioning 86
children in relation to an investigation of a violation of 87
section 2905.03, 2905.05, 2907.02, 2907.03, 2907.04, 2907.05, 89
2907.06, 2907.07, 2907.09, 2907.21, 2907.23, 2907.24, 2907.31, 90
2907.32, 2907.321, 2907.322, or 2907.323, or division (B)(5) of 91
section 2919.22 of the Revised Code OR AN OFFENSE OF VIOLENCE and 92
shall maintain a list of those names, addresses, and telephone 93
numbers. The list shall include a classification of the names, 94
addresses, and telephone numbers by appellate district. Upon 95
request, the bureau shall provide any county sheriff, chief of 96
police, prosecuting attorney, village solicitor, city director of 97
law, or similar chief legal officer with the name, address, and 98
telephone number of any person contained in the list. 99
Sec. 2151.3511. (A)(1) AS USED IN THIS SECTION, "VICTIM" 108
INCLUDES ANY OF THE FOLLOWING PERSONS: 110
(a) A PERSON WHO WAS A VICTIM OF A VIOLATION IDENTIFIED IN 113
DIVISION (A)(2) OF THIS SECTION OR AN ACT THAT WOULD BE AN 115
OFFENSE OF VIOLENCE IF COMMITTED BY AN ADULT; 116
(b) A PERSON AGAINST WHOM WAS DIRECTED ANY CONDUCT THAT 119
CONSTITUTES, OR THAT IS AN ELEMENT OF, A VIOLATION IDENTIFIED IN 120
DIVISION (A)(2) OF THIS SECTION OR AN ACT THAT WOULD BE AN 122
OFFENSE OF VIOLENCE IF COMMITTED BY AN ADULT. 123
(2) In any proceeding in juvenile court involving a 126
complaint in which a child is charged with a violation of section 127
2905.03, 2905.05, 2907.02, 2907.03, 2907.04, 2907.05, 2907.06, 128
2907.07, 2907.09, 2907.21, 2907.23, 2907.24, 2907.31, 2907.32, 129
2907.321, 2907.322, or 2907.323, or division (B)(5) of section 131
2919.22 of the Revised Code OR AN ACT THAT WOULD BE AN OFFENSE OF 132
VIOLENCE IF COMMITTED BY AN ADULT and in which an alleged victim 133
OF THE VIOLATION OR ACT was a child who was under eleven LESS 135
THAN THIRTEEN years of age when the complaint was filed, the 136
juvenile judge, upon motion of an attorney for the prosecution, 137
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shall order that the testimony of the child victim be taken by 138
deposition. The prosecution also may request that the deposition 139
be videotaped in accordance with division (A)(2)(3) of this 140
section. The judge shall notify the child victim whose 142
deposition is to be taken, the prosecution, and the attorney for 143
the child who is charged WITH THE VIOLATION OR ACT of the date, 144
time, and place for taking the deposition, which. THE notice 146
shall identify the child victim who is to be examined, and SHALL 148
INDICATE whether a request that the deposition be videotaped has 150
been made. The child who is charged WITH THE VIOLATION OR ACT
shall have the right to attend the deposition and the right to be 152
represented by counsel. Depositions shall be taken in the manner 153
provided in civil cases, except that the judge in the proceeding 154
shall preside at the taking of the deposition and shall rule at 155
that time on any objections of the prosecution or the attorney 156
for the child charged WITH THE VIOLATION OR ACT. The prosecution 157
and the attorney for the child charged WITH THE VIOLATION OR ACT 158
shall have the right, as at an adjudication hearing, to full 159
examination and cross-examination of the child victim whose 160
deposition is to be taken. If a deposition taken under this 161
division is intended to be offered as evidence in the proceeding, 162
it shall be filed in the juvenile court in which the action is 163
pending and is admissible in the manner described in division (B) 165
of this section. If a deposition of a child victim taken under 166
this division is admitted as evidence at the proceeding under 167
division (B) of this section, the child victim shall not be
required to testify in person at the proceeding. However, at any 168
time before the conclusion of the proceeding, the attorney for 169
the child charged WITH THE VIOLATION OR ACT may file a motion 170
with the judge requesting that another deposition of the child 172
victim be taken because new evidence material to the defense of 173
the child charged has been discovered that the attorney for the 174
child charged could not with reasonable diligence have discovered 175
prior to the taking of the admitted deposition. Any such motion 176
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REQUESTING ANOTHER DEPOSITION shall be accompanied by supporting 178
affidavits. Upon the filing of such a THE motion and affidavits, 179
the court may order that additional testimony of the child victim 180
relative to the new evidence be taken by another deposition. If 181
the court orders the taking of another deposition under this 182
provision, the deposition shall be taken in accordance with this 183
division; if the admitted deposition was a videotaped deposition 184
taken in accordance with division (A)(2)(3) of this section, the 185
new deposition also shall be videotaped in accordance with that 186
division, and, in other cases, the new deposition may be 187
videotaped in accordance with that division.
(2)(3) If the prosecution requests that a deposition to be 189
taken under division (A)(1)(2) of this section be videotaped, the 191
juvenile judge shall order that the deposition be videotaped in 192
accordance with this division. If a juvenile judge issues such 193
an order TO VIDEO TAPE THE DEPOSITION, the judge shall exclude 194
from the room in which the deposition is to be taken every person 196
except the child victim giving the testimony, the judge, one or 197
more interpreters if needed, the attorneys for the prosecution 198
and the child who is charged with the violation OR ACT, any 199
person needed to operate the equipment to be used, one person 200
chosen by the child victim giving the deposition, and any person 201
whose presence the judge determines would contribute to the 202
welfare and well-being of the child victim giving the deposition. 203
The person chosen by the child victim shall not himself or 204
herself be a witness in the proceeding, and, both before and 206
during the deposition, shall not discuss the testimony of the 208
child victim with any other witness in the proceeding. To the 209
extent feasible, any person operating the recording equipment 210
shall be restricted to a room adjacent to the room in which the 211
deposition is being taken, or to a location in the room in which 212
the deposition is being taken that is behind a screen or mirror 213
so that any such THE person OPERATING THE RECORDING EQUIPMENT can 214
see and hear, but cannot be seen or heard by, the child victim 215
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giving the deposition during the deposition. The child who is 216
charged with the violation OR ACT shall be permitted to observe 217
and hear the testimony of the child victim giving the deposition 218
on a monitor and, shall be provided with an electronic means of 219
immediate communication with the attorney of the child who is 220
charged with the violation OR ACT during the testimony, but AND 221
shall be restricted to a location that is such that FROM WHICH 222
the child who is charged with the violation OR ACT cannot be seen 224
or heard by the child victim giving the deposition, except on a 225
monitor provided for that purpose. The child victim giving the 226
deposition shall be provided with a monitor on which the child 227
victim can observe, while giving testimony, the child who is 228
charged with the violation OR ACT. The judge, at the judge's 230
discretion, may preside at the deposition by electronic means 232
from outside the room in which the deposition is to be taken; if 233
the judge presides in such a manner BY ELECTRONIC MEANS, the 234
judge shall be provided with monitors on which the judge can see 236
each person in the room in which the deposition is to be taken 237
and with an electronic means of communication with each such 238
person IN THAT ROOM, and each person in the room shall be
provided with a monitor on which that person can see the judge 240
and WITH an electronic means of communication with the judge. A 242
deposition that is videotaped under this division shall be taken 243
and filed in the manner described in division (A)(1)(2) of this 244
section and is admissible in the manner described in this 246
division and division (B) of this section, and, if such a 247
videotaped deposition THAT IS VIDEOTAPED UNDER THIS DIVISION is 248
admitted as evidence at the proceeding, the child victim shall 249
not be required to testify in person at the proceeding. No 250
deposition videotaped under this division shall be admitted as 251
evidence at any proceeding unless division (B) of this section is 252
satisfied relative to the deposition and all of the following 253
apply relative to the recording: 254
(a) The recording is both aural and visual and is recorded 256
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on film or videotape, or by other electronic means;. 257
(b) The recording is authenticated under the Rules of 259
Evidence and the Rules of Criminal Procedure as a fair and 260
accurate representation of what occurred, and the recording is 261
not altered other than at the direction and under the supervision 262
of the judge in the proceeding;. 263
(c) Each voice on the recording that is material to the 265
testimony on the recording or the making of the recording, as 266
determined by the judge, is identified;. 267
(d) Both the prosecution and the child who is charged with 269
the violation OR ACT are afforded an opportunity to view the 270
recording before it is shown in the proceeding. 271
(B)(1) At any proceeding in relation to which a deposition 273
was taken under division (A) of this section, the deposition or a 274
part of it is admissible in evidence upon motion of the 275
prosecution if the testimony in the deposition or the part to be 276
admitted is not excluded by the hearsay rule and if the 277
deposition or the part to be admitted otherwise is admissible 278
under the Rules of Evidence. For purposes of this division, 279
testimony is not excluded by the hearsay rule if the testimony is 280
not hearsay under Evidence Rule 801; if the testimony is within 281
an exception to the hearsay rule set forth in Evidence Rule 803; 282
if the child victim who gave the testimony is unavailable as a 283
witness, as defined in Evidence Rule 804, and the testimony is 284
admissible under that rule; or if both of the following apply: 285
(a) The child who is charged with the violation OR ACT had 287
an opportunity and similar motive at the time of the taking of 288
the deposition to develop the testimony by direct, cross, or 289
redirect examination;. 290
(b) The judge determines that there is reasonable cause to 292
believe that, if the child victim who gave the testimony in the 293
deposition were to testify in person at the proceeding, the child 294
victim would experience serious emotional trauma as a result of 295
his THE CHILD VICTIM'S participation at the proceeding. 296
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(2) Objections to receiving in evidence a deposition or a 298
part of it under division (B) of this section shall be made as 299
provided in civil actions. 300
(3) The provisions of divisions (A) and (B) of this 302
section are in addition to any other provisions of the Revised 303
Code, the Rules of Juvenile Procedure, the Rules of Criminal 304
Procedure, or the Rules of Evidence that pertain to the taking or 305
admission of depositions in a juvenile court proceeding, and do 306
not limit the admissibility under any such OF THOSE other 307
provisions of any deposition taken under division (A) of this 309
section or otherwise taken. 310
(C) In any proceeding in juvenile court involving a 312
complaint in which a child is charged with a violation listed in 313
division (A)(1)(2) of this section OR AN ACT THAT WOULD BE AN 315
OFFENSE OF VIOLENCE IF COMMITTED BY AN ADULT and in which an
alleged victim OF THE VIOLATION OR OFFENSE was a child who was 317
under eleven LESS THAN THIRTEEN years of age when the complaint 318
was filed, the prosecution may file a motion with the juvenile 319
judge requesting the judge to order the testimony of the child 320
victim to be taken in a room other than the room in which the 321
proceeding is being conducted and be televised, by closed circuit 322
equipment, into the room in which the proceeding is being 323
conducted to be viewed by the child who is charged with the 324
violation OR ACT and any other persons who are not permitted in 325
the room in which the testimony is to be taken but who would have 327
been present during the testimony of the child victim had it been 328
given in the room in which the proceeding is being conducted. 329
Except for good cause shown, the prosecution shall file such a 330
motion UNDER THIS DIVISION at least seven days before the date of 331
the proceeding. The juvenile judge may issue such an THE order, 333
upon THE motion of the prosecution FILED UNDER THIS DIVISION, if 335
the judge determines that the child victim is unavailable to 337
testify in the room in which the proceeding is being conducted in 338
the physical presence of the child charged with the violation OR 339
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ACT, due to one or more of the reasons set forth in division (E) 340
of this section. If a juvenile judge issues such an order OF 341
THAT NATURE, the judge shall exclude from the room in which the 342
testimony is to be taken every person except a person described 343
in division (A)(2)(3) of this section. The judge, at the judge's 345
discretion, may preside during the giving of the testimony by 346
electronic means from outside the room in which it is being 347
given, subject to the limitations set forth in division (A)(2)(3) 349
of this section. To the extent feasible, any person operating 350
the televising equipment shall be hidden from the sight and 351
hearing of the child victim giving the testimony, in a manner 352
similar to that described in division (A)(2)(3) of this section. 353
The child who is charged with the violation OR ACT shall be 355
permitted to observe and hear the testimony of the child victim 356
giving the testimony on a monitor and, shall be provided with an 357
electronic means of immediate communication with the attorney of 358
the child who is charged with the violation OR ACT during the 359
testimony, but AND shall be restricted to a location that is such 360
that FROM WHICH the child who is charged with the violation OR 362
ACT cannot be seen or heard by the child victim giving the 363
testimony, except on a monitor provided for that purpose. The 364
child victim giving the testimony shall be provided with a 365
monitor on which the child victim can observe, while giving 366
testimony, the child who is charged with the violation OR ACT. 367
(D) In any proceeding in juvenile court involving a 369
complaint in which a child is charged with a violation listed in 370
division (A)(1)(2) of this section OR AN ACT THAT WOULD BE AN 372
OFFENSE OF VIOLENCE IF COMMITTED BY AN ADULT and in which an
alleged victim OF THE VIOLATION OR OFFENSE was a child who was 374
under eleven LESS THAN THIRTEEN years of age when the complaint 375
was filed, the prosecution may file a motion with the juvenile 376
judge requesting the judge to order the testimony of the child 377
victim to be taken outside of the room in which the proceeding is 378
being conducted and be recorded for showing in the room in which 379
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the proceeding is being conducted before the judge, the child who 380
is charged with the violation OR ACT, and any other persons who 381
would have been present during the testimony of the child victim 382
had it been given in the room in which the proceeding is being 383
conducted. Except for good cause shown, the prosecution shall 384
file such a motion UNDER THIS DIVISION at least seven days before 386
the date of the proceeding. The juvenile judge may issue such an 387
THE order, upon THE motion of the prosecution FILED UNDER THIS 389
DIVISION, if the judge determines that the child victim is 391
unavailable to testify in the room in which the proceeding is 392
being conducted in the physical presence of the child charged 393
with the violation OR ACT, due to one or more of the reasons set 394
forth in division (E) of this section. If a juvenile judge 395
issues such an order OF THAT NATURE, the judge shall exclude from 396
the room in which the testimony is to be taken every person 397
except a person described in division (A)(2)(3) of this section. 398
To the extent feasible, any person operating the recording 400
equipment shall be hidden from the sight and hearing of the child 401
victim giving the testimony, in a manner similar to that 402
described in division (A)(2)(3) of this section. The child who 403
is charged with the violation OR ACT shall be permitted to 405
observe and hear the testimony of the child victim giving the 406
testimony on a monitor and, shall be provided with an electronic 407
means of immediate communication with the attorney of the child 408
who is charged with the violation OR ACT during the testimony, 409
but AND shall be restricted to a location that is such that FROM 410
WHICH the child who is charged with the violation OR ACT cannot 412
be seen or heard by the child victim giving the testimony, except 413
on a monitor provided for that purpose. The child victim giving 414
the testimony shall be provided with a monitor on which the child 415
victim can observe, while giving testimony, the child who is 416
charged with the violation OR ACT. No order for the taking of 417
testimony by recording shall be issued under this division unless 418
the provisions set forth in divisions (A)(2)(3)(a), (b), (c), and 419
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(d) of this section apply to the recording of the testimony. 421
(E) For purposes of divisions (C) and (D) of this section, 423
a juvenile judge may order the testimony of a child victim to be 424
taken outside of the room in which a proceeding is being 425
conducted if the judge determines that the child victim is 426
unavailable to testify in the room in the physical presence of 427
the child charged with the violation OR ACT due to one or more of 428
the following circumstances: 429
(1) The persistent refusal of the child victim to testify 431
despite judicial requests to do so; 432
(2) The inability of the child victim to communicate about 434
the alleged violation OR OFFENSE because of extreme fear, failure 435
of memory, or another similar reason; 437
(3) The substantial likelihood that the child victim will 439
suffer serious emotional trauma from so testifying. 440
(F)(1) If a juvenile judge issues an order pursuant to 442
division (C) or (D) of this section that requires the testimony 443
of a child victim in a juvenile court proceeding to be taken 444
outside of the room in which the proceeding is being conducted, 445
the order shall specifically identify the child victim to whose 446
testimony it applies, the order applies only during the testimony 447
of the specified child victim, and the child victim giving the 448
testimony shall not be required to testify at the proceeding 449
other than in accordance with the order. The authority of a 450
judge to close the taking of a deposition under division 452
(A)(2)(3) of this section or a proceeding under division (C) or 453
(D) of this section is in addition to the authority of a judge to 454
close a hearing pursuant to section 2151.35 of the Revised Code. 455
(2) A juvenile judge who makes any determination regarding 457
the admissibility of a deposition under divisions (A) and (B) of 458
this section, the videotaping of a deposition under division 460
(A)(2)(3) of this section, or the taking of testimony outside of 461
the room in which a proceeding is being conducted under division 462
(C) or (D) of this section, shall enter the determination and 463
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findings on the record in the proceeding. 464
Sec. 2937.11. (A)(1) AS USED IN THIS SECTION, "VICTIM" 473
INCLUDES ANY PERSON WHO WAS A VICTIM OF A FELONY VIOLATION 474
IDENTIFIED IN DIVISION (B) OF THIS SECTION OR A FELONY OFFENSE OF 476
VIOLENCE OR AGAINST WHOM WAS DIRECTED ANY CONDUCT THAT 477
CONSTITUTES, OR THAT IS AN ELEMENT OF, A FELONY VIOLATION 478
IDENTIFIED IN DIVISION (B) OF THIS SECTION OR A FELONY OFFENSE OF 480
VIOLENCE.
(2) At the preliminary hearing set pursuant to section 483
2937.10 of the Revised Code and the Criminal Rules, the 484
prosecutor may state, but is not required to state, orally the 485
case for the state and shall then proceed to examine witnesses
and introduce exhibits for the state. The accused and the 486
magistrate have full right of cross examination, and the accused 487
has the right of inspection of exhibits prior to their 488
introduction. The hearing shall be conducted under the rules of 489
evidence prevailing in criminal trials generally. On motion of 490
either the state or the accused, witnesses shall be separated and 491
not permitted in the hearing room except when called to testify. 492
(B) In a case involving an alleged felony violation of 494
section 2905.05, 2907.02, 2907.03, 2907.04, 2907.05, 2907.06, 495
2907.21, 2907.24, 2907.31, 2907.32, 2907.321, 2907.322, or 496
2907.323, or division (B)(5) of section 2919.22 of the Revised 498
Code OR AN ALLEGED FELONY OFFENSE OF VIOLENCE AND in which an 500
alleged victim of the alleged VIOLATION OR offense was under
eleven LESS THAN THIRTEEN years of age when the complaint or 502
information was filed, whichever occurred earlier, upon motion of 503
the prosecution, the testimony of the child victim at the 504
preliminary hearing may be taken in a room other than the room in 505
which the preliminary hearing is being conducted and be 506
televised, by closed circuit equipment, into the room in which 507
the preliminary hearing is being conducted, in accordance with 508
division (C) of section 2907.41 2945.481 of the Revised Code. 510
(C) In a case involving an alleged felony violation of 512
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section 2907.02, 2907.03, 2907.04, or 2907.05 of the Revised Code 514
LISTED IN DIVISION (B) OF THIS SECTION OR AN ALLEGED FELONY 515
OFFENSE OF VIOLENCE AND in which an alleged victim of the alleged 516
VIOLATION OR offense was under eleven LESS THAN THIRTEEN years of 517
age when the complaint or information was filed, whichever 519
occurred earlier, the court, on written motion of the prosecutor 520
in the case filed at least three days prior to the hearing, shall 521
order that all testimony of the child victim be recorded and 522
preserved on videotape, in addition to being recorded for 523
purposes of the transcript of the proceeding. If such an order is 524
issued, it shall specifically identify the child victim 525
concerning whose testimony it pertains, apply only during the 526
testimony of the child victim it specifically identifies, and 527
apply to all testimony of the child victim presented at the 528
hearing, regardless of whether the child victim is called as a 529
witness by the prosecution or by the defense.
Sec. 2907.41 2945.481. (A)(1) AS USED IN THIS SECTION, 538
"VICTIM" INCLUDES ANY PERSON WHO WAS A VICTIM OF A VIOLATION 540
IDENTIFIED IN DIVISION (A)(2) OF THIS SECTION OR AN OFFENSE OF 542
VIOLENCE OR AGAINST WHOM WAS DIRECTED ANY CONDUCT THAT 543
CONSTITUTES, OR THAT IS AN ELEMENT OF, A VIOLATION IDENTIFIED IN 544
DIVISION (A)(2) OF THIS SECTION OR AN OFFENSE OF VIOLENCE. 545
(2) In any proceeding in the prosecution of a charge of a 549
violation of section 2905.03, 2905.05, 2907.02, 2907.03, 2907.04, 550
2907.05, 2907.06, 2907.07, 2907.09, 2907.21, 2907.23, 2907.24, 552
2907.31, 2907.32, 2907.321, 2907.322, or 2907.323, or division 553
(B)(5) of section 2919.22 of the Revised Code OR AN OFFENSE OF 554
VIOLENCE AND in which an alleged victim OF THE VIOLATION OR 555
OFFENSE was a child who was under eleven LESS THAN THIRTEEN years 556
of age when the complaint, indictment, or information was filed, 558
whichever occurred earlier, the judge of the court in which the 559
prosecution is being conducted, upon motion of an attorney for 560
the prosecution, shall order that the testimony of the child 561
victim be taken by deposition. The prosecution also may request 562
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that the deposition be videotaped in accordance with division 563
(A)(2)(3) of this section. The judge shall notify the child 565
victim whose deposition is to be taken, the prosecution, and the 566
defense of the date, time, and place for taking the deposition, 567
which. THE notice shall identify the child victim who is to be 569
examined, and SHALL INDICATE whether a request that the 570
deposition be videotaped has been made. The defendant shall have 571
the right to attend the deposition and the right to be 572
represented by counsel. Depositions shall be taken in the manner 573
provided in civil cases, except that the judge shall preside at 574
the taking of the deposition and shall rule at that time on any 575
objections of the prosecution or the attorney for the defense. 576
The prosecution and the attorney for the defense shall have the 577
right, as at trial, to full examination and cross-examination of 578
the child victim whose deposition is to be taken. If a 579
deposition taken under this division is intended to be offered as 580
evidence in the proceeding, it shall be filed in the court in 581
which the action is pending and is admissible in the manner 582
described in division (B) of this section. If a deposition of a 583
child victim taken under this division is admitted as evidence at 584
the proceeding under division (B) of this section, the child 585
victim shall not be required to testify in person at the 586
proceeding. However, at any time before the conclusion of the 587
proceeding, the attorney for the defense may file a motion with 588
the judge requesting that another deposition of the child victim 589
be taken because new evidence material to the defense has been 590
discovered that the attorney for the defense could not with 591
reasonable diligence have discovered prior to the taking of the 592
admitted deposition. Any such A motion FOR ANOTHER DEPOSITION 594
shall be accompanied by supporting affidavits. Upon the filing 595
of such a motion FOR ANOTHER DEPOSITION and affidavits, the court 597
may order that additional testimony of the child victim relative 598
to the new evidence be taken by another deposition. If the court 599
orders the taking of another deposition under this provision, the 600
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deposition shall be taken in accordance with this division; if 601
the admitted deposition was a videotaped deposition taken in 602
accordance with division (A)(2)(3) of this section, the new 603
deposition also shall be videotaped in accordance with that 604
division and in other cases, the new deposition may be videotaped 605
in accordance with that division.
(2)(3) If the prosecution requests that a deposition to be 607
taken under division (A)(1)(2) of this section be videotaped, the 609
judge shall order that the deposition be videotaped in accordance 610
with this division. If a judge issues such an order THAT THE 611
DEPOSITION BE VIDEOTAPED, the judge shall exclude from the room 613
in which the deposition is to be taken every person except the 614
child victim giving the testimony, the judge, one or more 615
interpreters if needed, the attorneys for the prosecution and the 616
defense, any person needed to operate the equipment to be used, 617
one person chosen by the child victim giving the deposition, and 618
any person whose presence the judge determines would contribute 619
to the welfare and well-being of the child victim giving the 620
deposition. The person chosen by the child victim shall not 621
himself or herself be a witness in the proceeding and, both 623
before and during the deposition, shall not discuss the testimony 625
of the child victim with any other witness in the proceeding. To 626
the extent feasible, any person operating the recording equipment 627
shall be restricted to a room adjacent to the room in which the 628
deposition is being taken, or to a location in the room in which 629
the deposition is being taken that is behind a screen or mirror, 630
so that any such THE person OPERATING THE RECORDING EQUIPMENT can 631
see and hear, but cannot be seen or heard by, the child victim 632
giving the deposition during the deposition. The defendant shall 633
be permitted to observe and hear the testimony of the child 634
victim giving the deposition on a monitor and, shall be provided 635
with an electronic means of immediate communication with the 637
defendant's attorney during the testimony but, AND shall be 639
restricted to a location that is such that FROM WHICH the 641
16
defendant cannot be seen or heard by the child victim giving the 643
deposition, except on a monitor provided for that purpose. The 644
child victim giving the deposition shall be provided with a 645
monitor on which the child victim can observe, during the 646
testimony, the defendant. The judge, at the judge's discretion,
may preside at the deposition by electronic means from outside 647
the room in which the deposition is to be taken; if the judge 648
presides in such a manner BY ELECTRONIC MEANS, the judge shall be 650
provided with monitors on which the judge can see each person in 651
the room in which the deposition is to be taken and with an 652
electronic means of communication with each person, and each 653
person in the room shall be provided with a monitor on which that 654
person can see the judge and WITH an electronic means of 655
communication with the judge. A deposition that is videotaped 656
under this division shall be taken and filed in the manner 657
described in division (A)(1)(2) of this section and is admissible 659
in the manner described in this division and division (B) of this 660
section, and, if such a videotaped deposition THAT IS VIDEOTAPED 661
UNDER THIS DIVISION is admitted as evidence at the proceeding, 662
the child victim shall not be required to testify in person at 663
the proceeding. No deposition videotaped under this division 664
shall be admitted as evidence at any proceeding unless division 665
(B) of this section is satisfied relative to the deposition and 666
all of the following apply relative to the recording: 667
(a) The recording is both aural and visual and is recorded 669
on film or videotape, or by other electronic means;. 670
(b) The recording is authenticated under the Rules of 672
Evidence and the Rules of Criminal Procedure as a fair and 673
accurate representation of what occurred, and the recording is 674
not altered other than at the direction and under the supervision 675
of the judge in the proceeding;. 676
(c) Each voice on the recording that is material to the 678
testimony on the recording or the making of the recording, as 679
determined by the judge, is identified;. 680
17
(d) Both the prosecution and the defendant are afforded an 682
opportunity to view the recording before it is shown in the 683
proceeding. 684
(B)(1) At any proceeding in a prosecution in relation to 686
which a deposition was taken under division (A) of this section, 687
the deposition or a part of it is admissible in evidence upon 688
motion of the prosecution if the testimony in the deposition or 689
the part to be admitted is not excluded by the hearsay rule and 690
if the deposition or the part to be admitted otherwise is 691
admissible under the Rules of Evidence. For purposes of this 692
division, testimony is not excluded by the hearsay rule if the 693
testimony is not hearsay under Evidence Rule 801; if the 694
testimony is within an exception to the hearsay rule set forth in 695
Evidence Rule 803; if the child victim who gave the testimony is 696
unavailable as a witness, as defined in Evidence Rule 804, and 697
the testimony is admissible under that rule; or if both of the 698
following apply: 699
(a) The defendant had an opportunity and similar motive at 701
the time of the taking of the deposition to develop the testimony 702
by direct, cross, or redirect examination;. 703
(b) The judge determines that there is reasonable cause to 705
believe that, if the child victim who gave the testimony in the 706
deposition were to testify in person at the proceeding, the child 707
victim would experience serious emotional trauma as a result of 708
his THE CHILD VICTIM'S participation at the proceeding. 709
(2) Objections to receiving in evidence a deposition or a 711
part of it under division (B) of this section shall be made as 712
provided in civil actions. 713
(3) The provisions of divisions (A) and (B) of this 715
section are in addition to any other provisions of the Revised 716
Code, the Rules of Criminal Procedure, or the Rules of Evidence 717
that pertain to the taking or admission of depositions in a 718
criminal proceeding and do not limit the admissibility under any 719
such OF THOSE other provisions of any deposition taken under 720
18
division (A) of this section or otherwise taken. 722
(C) In any proceeding in the prosecution of any charge of 724
a violation listed in division (A)(1)(2) of this section OR AN 726
OFFENSE OF VIOLENCE AND in which an alleged victim OF THE 728
VIOLATION OR OFFENSE was a child who was under eleven LESS THAN 729
THIRTEEN years of age when the complaint, indictment, or 730
information was filed, whichever occurred earlier, the 731
prosecution may file a motion with the judge requesting the judge 732
to order the testimony of the child victim to be taken in a room 733
other than the room in which the proceeding is being conducted 734
and be televised, by closed circuit equipment, into the room in 735
which the proceeding is being conducted to be viewed by the jury, 736
if applicable, the defendant, and any other persons who are not 737
permitted in the room in which the testimony is to be taken but 738
who would have been present during the testimony of the child 739
victim had it been given in the room in which the proceeding is 740
being conducted. Except for good cause shown, the prosecution 741
shall file such a motion UNDER THIS DIVISION at least seven days 743
before the date of the proceeding. The judge may issue such an 744
THE order, upon THE motion of the prosecution FILED UNDER THIS 745
SECTION, if the judge determines that the child victim is 746
unavailable to testify in the room in which the proceeding is 747
being conducted in the physical presence of the defendant, for 748
one or more of the reasons set forth in division (E) of this 749
section. If a judge issues such an order OF THAT NATURE, the 750
judge shall exclude from the room in which the testimony is to be 752
taken every person except a person described in division 753
(A)(2)(3) of this section. The judge, at the judge's discretion, 755
may preside during the giving of the testimony by electronic 756
means from outside the room in which it is being given, subject 757
to the limitations set forth in division (A)(2)(3) of this 759
section. To the extent feasible, any person operating the
televising equipment shall be hidden from the sight and hearing 760
of the child victim giving the testimony, in a manner similar to 761
19
that described in division (A)(2)(3) of this section. The 762
defendant shall be permitted to observe and hear the testimony of 764
the child victim giving the testimony on a monitor and, shall be 765
provided with an electronic means of immediate communication with 766
the defendant's attorney during the testimony but, AND shall be 767
restricted to a location that is such that FROM WHICH the 769
defendant cannot be seen or heard by the child victim giving the 771
testimony, except on a monitor provided for that purpose. The 772
child victim giving the testimony shall be provided with a 773
monitor on which the child victim can observe, during the 774
testimony, the defendant.
(D) In any proceeding in the prosecution of any charge of 776
a violation listed in division (A)(1)(2) of this section OR AN 778
OFFENSE OF VIOLENCE AND in which an alleged victim OF THE 779
VIOLATION OR OFFENSE was a child who was under eleven LESS THAN 780
THIRTEEN years of age when the complaint, indictment, or 781
information was filed, whichever occurred earlier, the 782
prosecution may file a motion with the judge requesting the judge 783
to order the testimony of the child victim to be taken outside of 784
the room in which the proceeding is being conducted and be 785
recorded for showing in the room in which the proceeding is being 786
conducted before the judge, the jury, if applicable, the 787
defendant, and any other persons who would have been present 788
during the testimony of the child victim had it been given in the 789
room in which the proceeding is being conducted. Except for good
cause shown, the prosecution shall file such a motion UNDER THIS 791
DIVISION at least seven days before the date of the proceeding. 792
The judge may issue such an THE order, upon THE motion of the 793
prosecution FILED UNDER THIS DIVISION, if the judge determines 794
that the child victim is unavailable to testify in the room in 796
which the proceeding is being conducted in the physical presence 797
of the defendant, for one or more of the reasons set forth in 798
division (E) of this section. If a judge issues such an order OF 799
THAT NATURE, the judge shall exclude from the room in which the 801
20
testimony is to be taken every person except a person described 802
in division (A)(2)(3) of this section. To the extent feasible, 803
any person operating the recording equipment shall be hidden from 804
the sight and hearing of the child victim giving the testimony, 805
in a manner similar to that described in division (A)(2)(3) of 806
this section. The defendant shall be permitted to observe and 808
hear the testimony of the child victim who is giving the 809
testimony on a monitor and, shall be provided with an electronic 810
means of immediate communication with the defendant's attorney 811
during the testimony but, AND shall be restricted to a location 813
that is such that FROM WHICH the defendant cannot be seen or 814
heard by the child victim giving the testimony, except on a 816
monitor provided for that purpose. The child victim giving the 817
testimony shall be provided with a monitor on which the child 818
victim can observe, during the testimony, the defendant. No 820
order for the taking of testimony by recording shall be issued 821
under this division unless the provisions set forth in divisions 822
(A)(2)(3)(a), (b), (c), and (d) of this section apply to the 824
recording of the testimony.
(E) For purposes of divisions (C) and (D) of this section, 826
a judge may order the testimony of a child victim to be taken 827
outside the room in which the proceeding is being conducted if 828
the judge determines that the child victim is unavailable to 829
testify in the room in the physical presence of the defendant due 830
to one or more of the following: 831
(1) The persistent refusal of the child victim to testify 833
despite judicial requests to do so; 834
(2) The inability of the child victim to communicate about 836
the alleged violation OR OFFENSE because of extreme fear, failure 837
of memory, or another similar reason; 839
(3) The substantial likelihood that the child victim will 841
suffer serious emotional trauma from so testifying. 842
(F)(1) If a judge issues an order pursuant to division (C) 844
or (D) of this section that requires the testimony of a child 845
21
victim in a criminal proceeding to be taken outside of the room 846
in which the proceeding is being conducted, the order shall 847
specifically identify the child victim to whose testimony it 848
applies, the order applies only during the testimony of the 849
specified child victim, and the child victim giving the testimony 850
shall not be required to testify at the proceeding other than in 851
accordance with the order. 852
(2) A judge who makes any determination regarding the 854
admissibility of a deposition under divisions (A) and (B) of this 855
section, the videotaping of a deposition under division (A)(2)(3) 857
of this section, or the taking of testimony outside of the room 858
in which a proceeding is being conducted under division (C) or 859
(D) of this section, shall enter the determination and findings 860
on the record in the proceeding. 861
Sec. 2945.49. (A)(1) AS USED IN THIS SECTION, "VICTIM" 870
INCLUDES ANY PERSON WHO WAS A VICTIM OF A FELONY VIOLATION 871
IDENTIFIED IN DIVISION (B)(1) OF THIS SECTION OR A FELONY OFFENSE 873
OF VIOLENCE OR AGAINST WHOM WAS DIRECTED ANY CONDUCT THAT 874
CONSTITUTES, OR THAT IS AN ELEMENT OF, A FELONY VIOLATION 875
IDENTIFIED IN DIVISION (B)(1) OF THIS SECTION OR A FELONY OFFENSE 877
OF VIOLENCE.
(2) Testimony taken at an examination or a preliminary 880
hearing at which the defendant is present, or at a former trial 881
of the cause, or taken by deposition at the instance of the 882
defendant or the state, may be used whenever the witness giving 883
the testimony dies or cannot for any reason be produced at the 884
trial or whenever the witness has, since giving that testimony, 885
become incapacitated to testify. If the former testimony is 886
contained within an authenticated transcript of the testimony, it
shall be proven by the transcript, otherwise by other testimony. 888
(B)(1) At a trial on a charge of a felony violation of 890
section 2905.05, 2907.02, 2907.03, 2907.04, or 2907.05, 2907.21, 892
2907.24, 2907.31, 2907.32, 2907.321, 2907.322, 2907.323, OR 893
2919.22 of the Revised Code OR A FELONY OFFENSE OF VIOLENCE AND 894
22
in which the AN alleged victim of the alleged VIOLATION OR 895
offense was under eleven LESS THAN THIRTEEN years of age when the 896
complaint or information was filed, whichever occurred earlier, 898
the court, upon motion of the prosecutor in the case, may admit 899
videotaped preliminary hearing testimony of the child victim as 900
evidence at the trial, in lieu of the child victim appearing as a 901
witness and testifying at the trial, if all of the following 902
apply:
(a) The videotape of the testimony was made at the 904
preliminary hearing at which probable cause of the violation 905
charged was found; 906
(b) The videotape of the testimony was made in accordance 908
with division (C) of section 2937.11 of the Revised Code; 909
(c) The testimony in the videotape is not excluded by the 911
hearsay rule and otherwise is admissible under the Rules of 912
Evidence. For purposes of this division, testimony is not 913
excluded by the hearsay rule if the testimony is not hearsay 914
under Evidence Rule 801, if the testimony is within an exception 915
to the hearsay rule set forth in Evidence Rule 803, if the child 916
victim who gave the testimony is unavailable as a witness, as 917
defined in Evidence Rule 804, and the testimony is admissible 918
under that rule, or if both of the following apply: 919
(i) The accused had an opportunity and similar motive at 921
the preliminary hearing to develop the testimony of the child 922
victim by direct, cross, or redirect examination; 923
(ii) The court determines that there is reasonable cause 925
to believe that if the child victim who gave the testimony at the 926
preliminary hearing were to testify in person at the trial, the 927
child victim would experience serious emotional trauma as a 928
result of the child victim's participation at the trial. 929
(2) If a child victim of an alleged felony violation of 931
section 2905.05, 2907.02, 2907.03, 2907.04, 2907.05, 2907.06, 932
2907.21, 2907.24, 2907.31, 2907.32, 2907.321, 2907.322, or 933
2907.323, or division (B)(5) of section 2919.22 of the Revised 935
23
Code OR AN ALLEGED FELONY OFFENSE OF VIOLENCE testifies at the 937
preliminary hearing in the case, IF the testimony of the child 938
victim at the preliminary hearing was videotaped pursuant to 939
division (C) of section 2937.11 of the Revised Code, and IF the
defendant in the case files a written objection to the use, 940
pursuant to division (B)(1) of this section, of the videotaped 941
testimony at the trial, the court, immediately after the filing 942
of the objection, shall hold a hearing to determine whether the 943
videotaped testimony of the child victim should be admissible at 944
trial under division (B)(1) of this section and, if it is 945
admissible, whether the child victim should be required to 946
provide limited additional testimony of the type described in 947
this division. At the hearing held pursuant to this division, 948
the defendant and the prosecutor in the case may present any 949
evidence that is relevant to the issues to be determined at the 950
hearing, but the child victim shall not be required to testify at 951
the hearing. 952
After the hearing, the court shall not require the child 954
victim to testify at the trial, unless it determines that both of 955
the following apply: 956
(a) That the testimony of the child victim at trial is 958
necessary for one or more of the following reasons: 959
(i) Evidence that was not available at the time of the 961
testimony of the child victim at the preliminary hearing has been 962
discovered; 963
(ii) The circumstances surrounding the case have changed 965
sufficiently to necessitate that the child victim testify at the 966
trial. 967
(b) That the testimony of the child victim at the trial is 969
necessary to protect the right of the defendant to a fair trial. 970
The court shall enter its finding and the reasons for it in 972
the journal. If the court requires the child victim to testify 973
at the trial, the testimony of the victim shall be limited to the 974
new evidence and changed circumstances, and the child victim 975
24
shall not otherwise be required to testify at the trial. The 976
required testimony of the child victim may be given in person or, 977
upon motion of the prosecution, may be taken by deposition in 978
accordance with division (A) of section 2907.41 2945.481 of the 980
Revised Code provided the deposition is admitted as evidence 981
under division (B) of that section, may be taken outside of the 982
courtroom and televised into the courtroom in accordance with 983
division (C) of that section, or may be taken outside of the 984
courtroom and recorded for showing in the courtroom in accordance 985
with division (D) of that section. 986
(3) If videotaped testimony of a child victim is admitted 988
at trial in accordance with division (B)(1) of this section, the 989
child victim shall not be compelled in any way to appear as a 990
witness at the trial, except as provided in division (B)(2) of 991
this section. 992
(C) An order issued pursuant to division (B) of this 994
section shall specifically identify the child victim concerning 995
whose testimony it pertains. The order shall apply only during 996
the testimony of the child victim it specifically identifies. 997
(D) As used in this section, "prosecutor" has the same 999
meaning as in section 2935.01 of the Revised Code. 1,000
Section 2. That existing sections 109.54, 2151.3511, 1,002
2907.41, 2937.11, and 2945.49 of the Revised Code are hereby 1,003
repealed.
Section 3. Section 109.54 of the Revised Code is presented 1,005
in this act as a composite of the section as amended by both Am. 1,006
Sub. H.B. 445 and Sub. H.B. 480 of the 121st General Assembly, 1,007
with the new language of neither of the acts shown in capital 1,008
letters. This is in recognition of the principle stated in 1,009
division (B) of section 1.52 of the Revised Code that such 1,010
amendments are to be harmonized where not substantively 1,011
irreconcilable and constitutes a legislative finding that such is 1,013
the resulting version in effect prior to the effective date of 1,014
this act.