As Passed by the Senate 1
122nd General Assembly 4
Regular Session S. B. No. 53 5
1997-1998 6
SENATORS NEIN-CUPP-KEARNS-LATTA-WHITE-BLESSING-HOWARD- 8
B. JOHNSON-GAETH-McLIN-ZALESKI-SCHAFRATH-GARDNER-ESPY-DRAKE-LATELL 9
11
A B I L L
To amend sections 109.54, 2151.3511, 2907.41, 13
2937.11, and 2945.49 and to amend, for the 14
purpose of adopting a new section number as 15
indicated in parentheses, section 2907.41
(2945.481) of the Revised Code to expand the list 16
of offenses for which a criminal or juvenile 17
court may admit videotaped testimony of a child 18
victim of the offense or order the child victim's
testimony taken outside the courtroom and 19
televised into or videotaped for replay in the 20
courtroom and to permit the procedures to be used 21
when the victim is under 13 years of age.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 23
Section 1. That sections 109.54, 2151.3511, 2907.41, 25
2937.11, and 2945.49 be amended and section 2907.41 (2945.481) of 26
the Revised Code be amended for the purpose of adopting a new 27
section number as indicated in parentheses to read as follows: 28
Sec. 109.54. (A) The bureau of criminal identification 37
and investigation may investigate any criminal activity in this 38
state that is of statewide or intercounty concern when requested 39
by local authorities and may aid federal authorities, when 40
requested, in their investigation of any criminal activity in 41
this state. The bureau may investigate any criminal activity in 42
this state involving drug abuse or illegal drug distribution 43
prohibited under Chapter 3719. or 4729. of the Revised Code. The 44
2
superintendent and any agent of the bureau may participate, as 45
the director of an organized crime task force established under 46
section 177.02 of the Revised Code or as a member of the 47
investigatory staff of a task force established under that 48
section of that nature, in an investigation of organized criminal 50
activity anywhere within this state under sections 177.01 to 51
177.03 of the Revised Code.
(B) The bureau may provide any trained investigative 53
personnel and specialized equipment that are requested by any 54
sheriff or chief of police, by the authorized designee of any 55
sheriff or chief of police, or by any other authorized law 56
enforcement officer to aid and assist the officer in the 57
investigation and solution of any crime or the control of any 58
criminal activity occurring within the officer's jurisdiction. 59
This assistance shall be furnished by the bureau without 60
disturbing or impairing any of the existing law enforcement 61
authority or the prerogatives of local law enforcement 62
authorities or officers. Investigators provided pursuant to this 63
section, or engaged in an investigation pursuant to section 64
109.83 of the Revised Code, may go armed in the same manner as 65
sheriffs and regularly appointed police officers under section 66
2923.12 of the Revised Code.
(C)(1) The bureau shall obtain recording equipment that 68
can be used to record depositions of the type described in 69
division (A) of section 2151.3511 and division (A) of section 70
2907.41 2945.481 of the Revised Code, or testimony of the type 71
described in division (D) of section 2151.3511 and division (D) 73
of section 2907.41 2945.481 or in division (C) of section 2937.11 74
of the Revised Code, shall obtain closed circuit equipment that 76
can be used to televise testimony of the type described in 77
division (C) of section 2151.3511 and division (C) of section 78
2907.41 2945.481 or in division (B) of section 2937.11 of the 80
Revised Code, and shall provide the equipment, upon request, to 81
any court for use in recording any deposition or testimony of one 82
3
of those types or in televising the testimony in accordance with 84
the applicable division.
(2) The bureau shall obtain the names, addresses, and 86
telephone numbers of persons who are experienced in questioning 87
children in relation to an investigation of a violation of 88
section 2905.03, 2905.05, 2907.02, 2907.03, 2907.04, 2907.05, 90
2907.06, 2907.07, 2907.09, 2907.21, 2907.23, 2907.24, 2907.31, 91
2907.32, 2907.321, 2907.322, or 2907.323, or division (B)(5) of 92
section 2919.22 of the Revised Code OR AN OFFENSE OF VIOLENCE and 93
shall maintain a list of those names, addresses, and telephone 94
numbers. The list shall include a classification of the names, 95
addresses, and telephone numbers by appellate district. Upon 96
request, the bureau shall provide any county sheriff, chief of 97
police, prosecuting attorney, village solicitor, city director of 98
law, or similar chief legal officer with the name, address, and 99
telephone number of any person contained in the list. 100
Sec. 2151.3511. (A)(1) AS USED IN THIS SECTION, "VICTIM" 109
INCLUDES ANY OF THE FOLLOWING PERSONS: 111
(a) A PERSON WHO WAS A VICTIM OF A VIOLATION IDENTIFIED IN 114
DIVISION (A)(2) OF THIS SECTION OR AN ACT THAT WOULD BE AN 116
OFFENSE OF VIOLENCE IF COMMITTED BY AN ADULT; 117
(b) A PERSON AGAINST WHOM WAS DIRECTED ANY CONDUCT THAT 120
CONSTITUTES, OR THAT IS AN ELEMENT OF, A VIOLATION IDENTIFIED IN 121
DIVISION (A)(2) OF THIS SECTION OR AN ACT THAT WOULD BE AN 123
OFFENSE OF VIOLENCE IF COMMITTED BY AN ADULT. 124
(2) In any proceeding in juvenile court involving a 127
complaint in which a child is charged with a violation of section 128
2905.03, 2905.05, 2907.02, 2907.03, 2907.04, 2907.05, 2907.06, 129
2907.07, 2907.09, 2907.21, 2907.23, 2907.24, 2907.31, 2907.32, 130
2907.321, 2907.322, or 2907.323, or division (B)(5) of section 132
2919.22 of the Revised Code OR AN ACT THAT WOULD BE AN OFFENSE OF 133
VIOLENCE IF COMMITTED BY AN ADULT and in which an alleged victim 134
OF THE VIOLATION OR ACT was a child who was under eleven LESS 136
THAN THIRTEEN years of age when the complaint was filed, the 137
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juvenile judge, upon motion of an attorney for the prosecution, 138
shall order that the testimony of the child victim be taken by 139
deposition. The prosecution also may request that the deposition 140
be videotaped in accordance with division (A)(2)(3) of this 141
section. The judge shall notify the child victim whose 143
deposition is to be taken, the prosecution, and the attorney for 144
the child who is charged WITH THE VIOLATION OR ACT of the date, 145
time, and place for taking the deposition, which. THE notice 147
shall identify the child victim who is to be examined, and SHALL 149
INDICATE whether a request that the deposition be videotaped has 151
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 153
represented by counsel. Depositions shall be taken in the manner 154
provided in civil cases, except that the judge in the proceeding 155
shall preside at the taking of the deposition and shall rule at 156
that time on any objections of the prosecution or the attorney 157
for the child charged WITH THE VIOLATION OR ACT. The prosecution 158
and the attorney for the child charged WITH THE VIOLATION OR ACT 159
shall have the right, as at an adjudication hearing, to full 160
examination and cross-examination of the child victim whose 161
deposition is to be taken. If a deposition taken under this 162
division is intended to be offered as evidence in the proceeding, 163
it shall be filed in the juvenile court in which the action is 164
pending and is admissible in the manner described in division (B) 166
of this section. If a deposition of a child victim taken under 167
this division is admitted as evidence at the proceeding under 168
division (B) of this section, the child victim shall not be
required to testify in person at the proceeding. However, at any 169
time before the conclusion of the proceeding, the attorney for 170
the child charged WITH THE VIOLATION OR ACT may file a motion 171
with the judge requesting that another deposition of the child 173
victim be taken because new evidence material to the defense of 174
the child charged has been discovered that the attorney for the 175
child charged could not with reasonable diligence have discovered 176
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prior to the taking of the admitted deposition. Any such motion 177
REQUESTING ANOTHER DEPOSITION shall be accompanied by supporting 179
affidavits. Upon the filing of such a THE motion and affidavits, 180
the court may order that additional testimony of the child victim 181
relative to the new evidence be taken by another deposition. If 182
the court orders the taking of another deposition under this 183
provision, the deposition shall be taken in accordance with this 184
division; if the admitted deposition was a videotaped deposition 185
taken in accordance with division (A)(2)(3) of this section, the 186
new deposition also shall be videotaped in accordance with that 187
division, and, in other cases, the new deposition may be 188
videotaped in accordance with that division.
(2)(3) If the prosecution requests that a deposition to be 190
taken under division (A)(1)(2) of this section be videotaped, the 192
juvenile judge shall order that the deposition be videotaped in 193
accordance with this division. If a juvenile judge issues such 194
an order TO VIDEO TAPE THE DEPOSITION, the judge shall exclude 195
from the room in which the deposition is to be taken every person 197
except the child victim giving the testimony, the judge, one or 198
more interpreters if needed, the attorneys for the prosecution 199
and the child who is charged with the violation OR ACT, any 200
person needed to operate the equipment to be used, one person 201
chosen by the child victim giving the deposition, and any person 202
whose presence the judge determines would contribute to the 203
welfare and well-being of the child victim giving the deposition. 204
The person chosen by the child victim shall not himself or 205
herself be a witness in the proceeding, and, both before and 207
during the deposition, shall not discuss the testimony of the 209
child victim with any other witness in the proceeding. To the 210
extent feasible, any person operating the recording equipment 211
shall be restricted to a room adjacent to the room in which the 212
deposition is being taken, or to a location in the room in which 213
the deposition is being taken that is behind a screen or mirror 214
so that any such THE person OPERATING THE RECORDING EQUIPMENT can 215
6
see and hear, but cannot be seen or heard by, the child victim 216
giving the deposition during the deposition. The child who is 217
charged with the violation OR ACT shall be permitted to observe 218
and hear the testimony of the child victim giving the deposition 219
on a monitor and, shall be provided with an electronic means of 220
immediate communication with the attorney of the child who is 221
charged with the violation OR ACT during the testimony, but AND 222
shall be restricted to a location that is such that FROM WHICH 223
the child who is charged with the violation OR ACT cannot be seen 225
or heard by the child victim giving the deposition, except on a 226
monitor provided for that purpose. The child victim giving the 227
deposition shall be provided with a monitor on which the child 228
victim can observe, while giving testimony, the child who is 229
charged with the violation OR ACT. The judge, at the judge's 231
discretion, may preside at the deposition by electronic means 233
from outside the room in which the deposition is to be taken; if 234
the judge presides in such a manner BY ELECTRONIC MEANS, the 235
judge shall be provided with monitors on which the judge can see 237
each person in the room in which the deposition is to be taken 238
and with an electronic means of communication with each such 239
person IN THAT ROOM, and each person in the room shall be
provided with a monitor on which that person can see the judge 241
and WITH an electronic means of communication with the judge. A 243
deposition that is videotaped under this division shall be taken 244
and filed in the manner described in division (A)(1)(2) of this 245
section and is admissible in the manner described in this 247
division and division (B) of this section, and, if such a 248
videotaped deposition THAT IS VIDEOTAPED UNDER THIS DIVISION is 249
admitted as evidence at the proceeding, the child victim shall 250
not be required to testify in person at the proceeding. No 251
deposition videotaped under this division shall be admitted as 252
evidence at any proceeding unless division (B) of this section is 253
satisfied relative to the deposition and all of the following 254
apply relative to the recording: 255
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(a) The recording is both aural and visual and is recorded 257
on film or videotape, or by other electronic means;. 258
(b) The recording is authenticated under the Rules of 260
Evidence and the Rules of Criminal Procedure as a fair and 261
accurate representation of what occurred, and the recording is 262
not altered other than at the direction and under the supervision 263
of the judge in the proceeding;. 264
(c) Each voice on the recording that is material to the 266
testimony on the recording or the making of the recording, as 267
determined by the judge, is identified;. 268
(d) Both the prosecution and the child who is charged with 270
the violation OR ACT are afforded an opportunity to view the 271
recording before it is shown in the proceeding. 272
(B)(1) At any proceeding in relation to which a deposition 274
was taken under division (A) of this section, the deposition or a 275
part of it is admissible in evidence upon motion of the 276
prosecution if the testimony in the deposition or the part to be 277
admitted is not excluded by the hearsay rule and if the 278
deposition or the part to be admitted otherwise is admissible 279
under the Rules of Evidence. For purposes of this division, 280
testimony is not excluded by the hearsay rule if the testimony is 281
not hearsay under Evidence Rule 801; if the testimony is within 282
an exception to the hearsay rule set forth in Evidence Rule 803; 283
if the child victim who gave the testimony is unavailable as a 284
witness, as defined in Evidence Rule 804, and the testimony is 285
admissible under that rule; or if both of the following apply: 286
(a) The child who is charged with the violation OR ACT had 288
an opportunity and similar motive at the time of the taking of 289
the deposition to develop the testimony by direct, cross, or 290
redirect examination;. 291
(b) The judge determines that there is reasonable cause to 293
believe that, if the child victim who gave the testimony in the 294
deposition were to testify in person at the proceeding, the child 295
victim would experience serious emotional trauma as a result of 296
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his THE CHILD VICTIM'S participation at the proceeding. 297
(2) Objections to receiving in evidence a deposition or a 299
part of it under division (B) of this section shall be made as 300
provided in civil actions. 301
(3) The provisions of divisions (A) and (B) of this 303
section are in addition to any other provisions of the Revised 304
Code, the Rules of Juvenile Procedure, the Rules of Criminal 305
Procedure, or the Rules of Evidence that pertain to the taking or 306
admission of depositions in a juvenile court proceeding, and do 307
not limit the admissibility under any such OF THOSE other 308
provisions of any deposition taken under division (A) of this 310
section or otherwise taken. 311
(C) In any proceeding in juvenile court involving a 313
complaint in which a child is charged with a violation listed in 314
division (A)(1)(2) of this section OR AN ACT THAT WOULD BE AN 316
OFFENSE OF VIOLENCE IF COMMITTED BY AN ADULT and in which an
alleged victim OF THE VIOLATION OR OFFENSE was a child who was 318
under eleven LESS THAN THIRTEEN years of age when the complaint 319
was filed, the prosecution may file a motion with the juvenile 320
judge requesting the judge to order the testimony of the child 321
victim to be taken in a room other than the room in which the 322
proceeding is being conducted and be televised, by closed circuit 323
equipment, into the room in which the proceeding is being 324
conducted to be viewed by the child who is charged with the 325
violation OR ACT and any other persons who are not permitted in 326
the room in which the testimony is to be taken but who would have 328
been present during the testimony of the child victim had it been 329
given in the room in which the proceeding is being conducted. 330
Except for good cause shown, the prosecution shall file such a 331
motion UNDER THIS DIVISION at least seven days before the date of 332
the proceeding. The juvenile judge may issue such an THE order, 334
upon THE motion of the prosecution FILED UNDER THIS DIVISION, if 336
the judge determines that the child victim is unavailable to 338
testify in the room in which the proceeding is being conducted in 339
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the physical presence of the child charged with the violation OR 340
ACT, due to one or more of the reasons set forth in division (E) 341
of this section. If a juvenile judge issues such an order OF 342
THAT NATURE, the judge shall exclude from the room in which the 343
testimony is to be taken every person except a person described 344
in division (A)(2)(3) of this section. The judge, at the judge's 346
discretion, may preside during the giving of the testimony by 347
electronic means from outside the room in which it is being 348
given, subject to the limitations set forth in division (A)(2)(3) 350
of this section. To the extent feasible, any person operating 351
the televising equipment shall be hidden from the sight and 352
hearing of the child victim giving the testimony, in a manner 353
similar to that described in division (A)(2)(3) of this section. 354
The child who is charged with the violation OR ACT shall be 356
permitted to observe and hear the testimony of the child victim 357
giving the testimony on a monitor and, shall be provided with an 358
electronic means of immediate communication with the attorney of 359
the child who is charged with the violation OR ACT during the 360
testimony, but AND shall be restricted to a location that is such 361
that FROM WHICH the child who is charged with the violation OR 363
ACT cannot be seen or heard by the child victim giving the 364
testimony, except on a monitor provided for that purpose. The 365
child victim giving the testimony shall be provided with a 366
monitor on which the child victim can observe, while giving 367
testimony, the child who is charged with the violation OR ACT. 368
(D) In any proceeding in juvenile court involving a 370
complaint in which a child is charged with a violation listed in 371
division (A)(1)(2) of this section OR AN ACT THAT WOULD BE AN 373
OFFENSE OF VIOLENCE IF COMMITTED BY AN ADULT and in which an
alleged victim OF THE VIOLATION OR OFFENSE was a child who was 375
under eleven LESS THAN THIRTEEN years of age when the complaint 376
was filed, the prosecution may file a motion with the juvenile 377
judge requesting the judge to order the testimony of the child 378
victim to be taken outside of the room in which the proceeding is 379
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being conducted and be recorded for showing in the room in which 380
the proceeding is being conducted before the judge, the child who 381
is charged with the violation OR ACT, and any other persons who 382
would have been present during the testimony of the child victim 383
had it been given in the room in which the proceeding is being 384
conducted. Except for good cause shown, the prosecution shall 385
file such a motion UNDER THIS DIVISION at least seven days before 387
the date of the proceeding. The juvenile judge may issue such an 388
THE order, upon THE motion of the prosecution FILED UNDER THIS 390
DIVISION, if the judge determines that the child victim is 392
unavailable to testify in the room in which the proceeding is 393
being conducted in the physical presence of the child charged 394
with the violation OR ACT, due to one or more of the reasons set 395
forth in division (E) of this section. If a juvenile judge 396
issues such an order OF THAT NATURE, the judge shall exclude from 397
the room in which the testimony is to be taken every person 398
except a person described in division (A)(2)(3) of this section. 399
To the extent feasible, any person operating the recording 401
equipment shall be hidden from the sight and hearing of the child 402
victim giving the testimony, in a manner similar to that 403
described in division (A)(2)(3) of this section. The child who 404
is charged with the violation OR ACT shall be permitted to 406
observe and hear the testimony of the child victim giving the 407
testimony on a monitor and, shall be provided with an electronic 408
means of immediate communication with the attorney of the child 409
who is charged with the violation OR ACT during the testimony, 410
but AND shall be restricted to a location that is such that FROM 411
WHICH the child who is charged with the violation OR ACT cannot 413
be seen or heard by the child victim giving the testimony, except 414
on a monitor provided for that purpose. The child victim giving 415
the testimony shall be provided with a monitor on which the child 416
victim can observe, while giving testimony, the child who is 417
charged with the violation OR ACT. No order for the taking of 418
testimony by recording shall be issued under this division unless 419
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the provisions set forth in divisions (A)(2)(3)(a), (b), (c), and 420
(d) of this section apply to the recording of the testimony. 422
(E) For purposes of divisions (C) and (D) of this section, 424
a juvenile judge may order the testimony of a child victim to be 425
taken outside of the room in which a proceeding is being 426
conducted if the judge determines that the child victim is 427
unavailable to testify in the room in the physical presence of 428
the child charged with the violation OR ACT due to one or more of 429
the following circumstances: 430
(1) The persistent refusal of the child victim to testify 432
despite judicial requests to do so; 433
(2) The inability of the child victim to communicate about 435
the alleged violation OR OFFENSE because of extreme fear, failure 436
of memory, or another similar reason; 438
(3) The substantial likelihood that the child victim will 440
suffer serious emotional trauma from so testifying. 441
(F)(1) If a juvenile judge issues an order pursuant to 443
division (C) or (D) of this section that requires the testimony 444
of a child victim in a juvenile court proceeding to be taken 445
outside of the room in which the proceeding is being conducted, 446
the order shall specifically identify the child victim to whose 447
testimony it applies, the order applies only during the testimony 448
of the specified child victim, and the child victim giving the 449
testimony shall not be required to testify at the proceeding 450
other than in accordance with the order. The authority of a 451
judge to close the taking of a deposition under division 453
(A)(2)(3) of this section or a proceeding under division (C) or 454
(D) of this section is in addition to the authority of a judge to 455
close a hearing pursuant to section 2151.35 of the Revised Code. 456
(2) A juvenile judge who makes any determination regarding 458
the admissibility of a deposition under divisions (A) and (B) of 459
this section, the videotaping of a deposition under division 461
(A)(2)(3) of this section, or the taking of testimony outside of 462
the room in which a proceeding is being conducted under division 463
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(C) or (D) of this section, shall enter the determination and 464
findings on the record in the proceeding. 465
Sec. 2937.11. (A)(1) AS USED IN THIS SECTION, "VICTIM" 474
INCLUDES ANY PERSON WHO WAS A VICTIM OF A FELONY VIOLATION 475
IDENTIFIED IN DIVISION (B) OF THIS SECTION OR A FELONY OFFENSE OF 477
VIOLENCE OR AGAINST WHOM WAS DIRECTED ANY CONDUCT THAT 478
CONSTITUTES, OR THAT IS AN ELEMENT OF, A FELONY VIOLATION 479
IDENTIFIED IN DIVISION (B) OF THIS SECTION OR A FELONY OFFENSE OF 481
VIOLENCE.
(2) At the preliminary hearing set pursuant to section 484
2937.10 of the Revised Code and the Criminal Rules, the 485
prosecutor may state, but is not required to state, orally the 486
case for the state and shall then proceed to examine witnesses
and introduce exhibits for the state. The accused and the 487
magistrate have full right of cross examination, and the accused 488
has the right of inspection of exhibits prior to their 489
introduction. The hearing shall be conducted under the rules of 490
evidence prevailing in criminal trials generally. On motion of 491
either the state or the accused, witnesses shall be separated and 492
not permitted in the hearing room except when called to testify. 493
(B) In a case involving an alleged felony violation of 495
section 2905.05, 2907.02, 2907.03, 2907.04, 2907.05, 2907.06, 496
2907.21, 2907.24, 2907.31, 2907.32, 2907.321, 2907.322, or 497
2907.323, or division (B)(5) of section 2919.22 of the Revised 499
Code OR AN ALLEGED FELONY OFFENSE OF VIOLENCE AND in which an 501
alleged victim of the alleged VIOLATION OR offense was under
eleven LESS THAN THIRTEEN years of age when the complaint or 503
information was filed, whichever occurred earlier, upon motion of 504
the prosecution, the testimony of the child victim at the 505
preliminary hearing may be taken in a room other than the room in 506
which the preliminary hearing is being conducted and be 507
televised, by closed circuit equipment, into the room in which 508
the preliminary hearing is being conducted, in accordance with 509
division (C) of section 2907.41 2945.481 of the Revised Code. 511
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(C) In a case involving an alleged felony violation of 513
section 2907.02, 2907.03, 2907.04, or 2907.05 of the Revised Code 515
LISTED IN DIVISION (B) OF THIS SECTION OR AN ALLEGED FELONY 516
OFFENSE OF VIOLENCE AND in which an alleged victim of the alleged 517
VIOLATION OR offense was under eleven LESS THAN THIRTEEN years of 518
age when the complaint or information was filed, whichever 520
occurred earlier, the court, on written motion of the prosecutor 521
in the case filed at least three days prior to the hearing, shall 522
order that all testimony of the child victim be recorded and 523
preserved on videotape, in addition to being recorded for 524
purposes of the transcript of the proceeding. If such an order is 525
issued, it shall specifically identify the child victim 526
concerning whose testimony it pertains, apply only during the 527
testimony of the child victim it specifically identifies, and 528
apply to all testimony of the child victim presented at the 529
hearing, regardless of whether the child victim is called as a 530
witness by the prosecution or by the defense.
Sec. 2907.41 2945.481. (A)(1) AS USED IN THIS SECTION, 539
"VICTIM" INCLUDES ANY PERSON WHO WAS A VICTIM OF A VIOLATION 541
IDENTIFIED IN DIVISION (A)(2) OF THIS SECTION OR AN OFFENSE OF 543
VIOLENCE OR AGAINST WHOM WAS DIRECTED ANY CONDUCT THAT 544
CONSTITUTES, OR THAT IS AN ELEMENT OF, A VIOLATION IDENTIFIED IN 545
DIVISION (A)(2) OF THIS SECTION OR AN OFFENSE OF VIOLENCE. 546
(2) In any proceeding in the prosecution of a charge of a 550
violation of section 2905.03, 2905.05, 2907.02, 2907.03, 2907.04, 551
2907.05, 2907.06, 2907.07, 2907.09, 2907.21, 2907.23, 2907.24, 553
2907.31, 2907.32, 2907.321, 2907.322, or 2907.323, or division 554
(B)(5) of section 2919.22 of the Revised Code OR AN OFFENSE OF 555
VIOLENCE AND in which an alleged victim OF THE VIOLATION OR 556
OFFENSE was a child who was under eleven LESS THAN THIRTEEN years 557
of age when the complaint, indictment, or information was filed, 559
whichever occurred earlier, the judge of the court in which the 560
prosecution is being conducted, upon motion of an attorney for 561
the prosecution, shall order that the testimony of the child 562
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victim be taken by deposition. The prosecution also may request 563
that the deposition be videotaped in accordance with division 564
(A)(2)(3) of this section. The judge shall notify the child 566
victim whose deposition is to be taken, the prosecution, and the 567
defense of the date, time, and place for taking the deposition, 568
which. THE notice shall identify the child victim who is to be 570
examined, and SHALL INDICATE whether a request that the 571
deposition be videotaped has been made. The defendant shall have 572
the right to attend the deposition and the right to be 573
represented by counsel. Depositions shall be taken in the manner 574
provided in civil cases, except that the judge shall preside at 575
the taking of the deposition and shall rule at that time on any 576
objections of the prosecution or the attorney for the defense. 577
The prosecution and the attorney for the defense shall have the 578
right, as at trial, to full examination and cross-examination of 579
the child victim whose deposition is to be taken. If a 580
deposition taken under this division is intended to be offered as 581
evidence in the proceeding, it shall be filed in the court in 582
which the action is pending and is admissible in the manner 583
described in division (B) of this section. If a deposition of a 584
child victim taken under this division is admitted as evidence at 585
the proceeding under division (B) of this section, the child 586
victim shall not be required to testify in person at the 587
proceeding. However, at any time before the conclusion of the 588
proceeding, the attorney for the defense may file a motion with 589
the judge requesting that another deposition of the child victim 590
be taken because new evidence material to the defense has been 591
discovered that the attorney for the defense could not with 592
reasonable diligence have discovered prior to the taking of the 593
admitted deposition. Any such A motion FOR ANOTHER DEPOSITION 595
shall be accompanied by supporting affidavits. Upon the filing 596
of such a motion FOR ANOTHER DEPOSITION and affidavits, the court 598
may order that additional testimony of the child victim relative 599
to the new evidence be taken by another deposition. If the court 600
15
orders the taking of another deposition under this provision, the 601
deposition shall be taken in accordance with this division; if 602
the admitted deposition was a videotaped deposition taken in 603
accordance with division (A)(2)(3) of this section, the new 604
deposition also shall be videotaped in accordance with that 605
division and in other cases, the new deposition may be videotaped 606
in accordance with that division.
(2)(3) If the prosecution requests that a deposition to be 608
taken under division (A)(1)(2) of this section be videotaped, the 610
judge shall order that the deposition be videotaped in accordance 611
with this division. If a judge issues such an order THAT THE 612
DEPOSITION BE VIDEOTAPED, the judge shall exclude from the room 614
in which the deposition is to be taken every person except the 615
child victim giving the testimony, the judge, one or more 616
interpreters if needed, the attorneys for the prosecution and the 617
defense, any person needed to operate the equipment to be used, 618
one person chosen by the child victim giving the deposition, and 619
any person whose presence the judge determines would contribute 620
to the welfare and well-being of the child victim giving the 621
deposition. The person chosen by the child victim shall not 622
himself or herself be a witness in the proceeding and, both 624
before and during the deposition, shall not discuss the testimony 626
of the child victim with any other witness in the proceeding. To 627
the extent feasible, any person operating the recording equipment 628
shall be restricted to a room adjacent to the room in which the 629
deposition is being taken, or to a location in the room in which 630
the deposition is being taken that is behind a screen or mirror, 631
so that any such THE person OPERATING THE RECORDING EQUIPMENT can 632
see and hear, but cannot be seen or heard by, the child victim 633
giving the deposition during the deposition. The defendant shall 634
be permitted to observe and hear the testimony of the child 635
victim giving the deposition on a monitor and, shall be provided 636
with an electronic means of immediate communication with the 638
defendant's attorney during the testimony but, AND shall be 640
16
restricted to a location that is such that FROM WHICH the 642
defendant cannot be seen or heard by the child victim giving the 644
deposition, except on a monitor provided for that purpose. The 645
child victim giving the deposition shall be provided with a 646
monitor on which the child victim can observe, during the 647
testimony, the defendant. The judge, at the judge's discretion,
may preside at the deposition by electronic means from outside 648
the room in which the deposition is to be taken; if the judge 649
presides in such a manner BY ELECTRONIC MEANS, the judge shall be 651
provided with monitors on which the judge can see each person in 652
the room in which the deposition is to be taken and with an 653
electronic means of communication with each person, and each 654
person in the room shall be provided with a monitor on which that 655
person can see the judge and WITH an electronic means of 656
communication with the judge. A deposition that is videotaped 657
under this division shall be taken and filed in the manner 658
described in division (A)(1)(2) of this section and is admissible 660
in the manner described in this division and division (B) of this 661
section, and, if such a videotaped deposition THAT IS VIDEOTAPED 662
UNDER THIS DIVISION is admitted as evidence at the proceeding, 663
the child victim shall not be required to testify in person at 664
the proceeding. No deposition videotaped under this division 665
shall be admitted as evidence at any proceeding unless division 666
(B) of this section is satisfied relative to the deposition and 667
all of the following apply relative to the recording: 668
(a) The recording is both aural and visual and is recorded 670
on film or videotape, or by other electronic means;. 671
(b) The recording is authenticated under the Rules of 673
Evidence and the Rules of Criminal Procedure as a fair and 674
accurate representation of what occurred, and the recording is 675
not altered other than at the direction and under the supervision 676
of the judge in the proceeding;. 677
(c) Each voice on the recording that is material to the 679
testimony on the recording or the making of the recording, as 680
17
determined by the judge, is identified;. 681
(d) Both the prosecution and the defendant are afforded an 683
opportunity to view the recording before it is shown in the 684
proceeding. 685
(B)(1) At any proceeding in a prosecution in relation to 687
which a deposition was taken under division (A) of this section, 688
the deposition or a part of it is admissible in evidence upon 689
motion of the prosecution if the testimony in the deposition or 690
the part to be admitted is not excluded by the hearsay rule and 691
if the deposition or the part to be admitted otherwise is 692
admissible under the Rules of Evidence. For purposes of this 693
division, testimony is not excluded by the hearsay rule if the 694
testimony is not hearsay under Evidence Rule 801; if the 695
testimony is within an exception to the hearsay rule set forth in 696
Evidence Rule 803; if the child victim who gave the testimony is 697
unavailable as a witness, as defined in Evidence Rule 804, and 698
the testimony is admissible under that rule; or if both of the 699
following apply: 700
(a) The defendant had an opportunity and similar motive at 702
the time of the taking of the deposition to develop the testimony 703
by direct, cross, or redirect examination;. 704
(b) The judge determines that there is reasonable cause to 706
believe that, if the child victim who gave the testimony in the 707
deposition were to testify in person at the proceeding, the child 708
victim would experience serious emotional trauma as a result of 709
his THE CHILD VICTIM'S participation at the proceeding. 710
(2) Objections to receiving in evidence a deposition or a 712
part of it under division (B) of this section shall be made as 713
provided in civil actions. 714
(3) The provisions of divisions (A) and (B) of this 716
section are in addition to any other provisions of the Revised 717
Code, the Rules of Criminal Procedure, or the Rules of Evidence 718
that pertain to the taking or admission of depositions in a 719
criminal proceeding and do not limit the admissibility under any 720
18
such OF THOSE other provisions of any deposition taken under 721
division (A) of this section or otherwise taken. 723
(C) In any proceeding in the prosecution of any charge of 725
a violation listed in division (A)(1)(2) of this section OR AN 727
OFFENSE OF VIOLENCE AND in which an alleged victim OF THE 729
VIOLATION OR OFFENSE was a child who was under eleven LESS THAN 730
THIRTEEN years of age when the complaint, indictment, or 731
information was filed, whichever occurred earlier, the 732
prosecution may file a motion with the judge requesting the judge 733
to order the testimony of the child victim to be taken in a room 734
other than the room in which the proceeding is being conducted 735
and be televised, by closed circuit equipment, into the room in 736
which the proceeding is being conducted to be viewed by the jury, 737
if applicable, the defendant, and any other persons who are not 738
permitted in the room in which the testimony is to be taken but 739
who would have been present during the testimony of the child 740
victim had it been given in the room in which the proceeding is 741
being conducted. Except for good cause shown, the prosecution 742
shall file such a motion UNDER THIS DIVISION at least seven days 744
before the date of the proceeding. The judge may issue such an 745
THE order, upon THE motion of the prosecution FILED UNDER THIS 746
SECTION, if the judge determines that the child victim is 747
unavailable to testify in the room in which the proceeding is 748
being conducted in the physical presence of the defendant, for 749
one or more of the reasons set forth in division (E) of this 750
section. If a judge issues such an order OF THAT NATURE, the 751
judge shall exclude from the room in which the testimony is to be 753
taken every person except a person described in division 754
(A)(2)(3) of this section. The judge, at the judge's discretion, 756
may preside during the giving of the testimony by electronic 757
means from outside the room in which it is being given, subject 758
to the limitations set forth in division (A)(2)(3) of this 760
section. To the extent feasible, any person operating the
televising equipment shall be hidden from the sight and hearing 761
19
of the child victim giving the testimony, in a manner similar to 762
that described in division (A)(2)(3) of this section. The 763
defendant shall be permitted to observe and hear the testimony of 765
the child victim giving the testimony on a monitor and, shall be 766
provided with an electronic means of immediate communication with 767
the defendant's attorney during the testimony but, AND shall be 768
restricted to a location that is such that FROM WHICH the 770
defendant cannot be seen or heard by the child victim giving the 772
testimony, except on a monitor provided for that purpose. The 773
child victim giving the testimony shall be provided with a 774
monitor on which the child victim can observe, during the 775
testimony, the defendant.
(D) In any proceeding in the prosecution of any charge of 777
a violation listed in division (A)(1)(2) of this section OR AN 779
OFFENSE OF VIOLENCE AND in which an alleged victim OF THE 780
VIOLATION OR OFFENSE was a child who was under eleven LESS THAN 781
THIRTEEN years of age when the complaint, indictment, or 782
information was filed, whichever occurred earlier, the 783
prosecution may file a motion with the judge requesting the judge 784
to order the testimony of the child victim to be taken outside of 785
the room in which the proceeding is being conducted and be 786
recorded for showing in the room in which the proceeding is being 787
conducted before the judge, the jury, if applicable, the 788
defendant, and any other persons who would have been present 789
during the testimony of the child victim had it been given in the 790
room in which the proceeding is being conducted. Except for good
cause shown, the prosecution shall file such a motion UNDER THIS 792
DIVISION at least seven days before the date of the proceeding. 793
The judge may issue such an THE order, upon THE motion of the 794
prosecution FILED UNDER THIS DIVISION, if the judge determines 795
that the child victim is unavailable to testify in the room in 797
which the proceeding is being conducted in the physical presence 798
of the defendant, for one or more of the reasons set forth in 799
division (E) of this section. If a judge issues such an order OF 800
20
THAT NATURE, the judge shall exclude from the room in which the 802
testimony is to be taken every person except a person described 803
in division (A)(2)(3) of this section. To the extent feasible, 804
any person operating the recording equipment shall be hidden from 805
the sight and hearing of the child victim giving the testimony, 806
in a manner similar to that described in division (A)(2)(3) of 807
this section. The defendant shall be permitted to observe and 809
hear the testimony of the child victim who is giving the 810
testimony on a monitor and, shall be provided with an electronic 811
means of immediate communication with the defendant's attorney 812
during the testimony but, AND shall be restricted to a location 814
that is such that FROM WHICH the defendant cannot be seen or 815
heard by the child victim giving the testimony, except on a 817
monitor provided for that purpose. The child victim giving the 818
testimony shall be provided with a monitor on which the child 819
victim can observe, during the testimony, the defendant. No 821
order for the taking of testimony by recording shall be issued 822
under this division unless the provisions set forth in divisions 823
(A)(2)(3)(a), (b), (c), and (d) of this section apply to the 825
recording of the testimony.
(E) For purposes of divisions (C) and (D) of this section, 827
a judge may order the testimony of a child victim to be taken 828
outside the room in which the proceeding is being conducted if 829
the judge determines that the child victim is unavailable to 830
testify in the room in the physical presence of the defendant due 831
to one or more of the following: 832
(1) The persistent refusal of the child victim to testify 834
despite judicial requests to do so; 835
(2) The inability of the child victim to communicate about 837
the alleged violation OR OFFENSE because of extreme fear, failure 838
of memory, or another similar reason; 840
(3) The substantial likelihood that the child victim will 842
suffer serious emotional trauma from so testifying. 843
(F)(1) If a judge issues an order pursuant to division (C) 845
21
or (D) of this section that requires the testimony of a child 846
victim in a criminal proceeding to be taken outside of the room 847
in which the proceeding is being conducted, the order shall 848
specifically identify the child victim to whose testimony it 849
applies, the order applies only during the testimony of the 850
specified child victim, and the child victim giving the testimony 851
shall not be required to testify at the proceeding other than in 852
accordance with the order. 853
(2) A judge who makes any determination regarding the 855
admissibility of a deposition under divisions (A) and (B) of this 856
section, the videotaping of a deposition under division (A)(2)(3) 858
of this section, or the taking of testimony outside of the room 859
in which a proceeding is being conducted under division (C) or 860
(D) of this section, shall enter the determination and findings 861
on the record in the proceeding. 862
Sec. 2945.49. (A)(1) AS USED IN THIS SECTION, "VICTIM" 871
INCLUDES ANY PERSON WHO WAS A VICTIM OF A FELONY VIOLATION 872
IDENTIFIED IN DIVISION (B)(1) OF THIS SECTION OR A FELONY OFFENSE 874
OF VIOLENCE OR AGAINST WHOM WAS DIRECTED ANY CONDUCT THAT 875
CONSTITUTES, OR THAT IS AN ELEMENT OF, A FELONY VIOLATION 876
IDENTIFIED IN DIVISION (B)(1) OF THIS SECTION OR A FELONY OFFENSE 878
OF VIOLENCE.
(2) Testimony taken at an examination or a preliminary 881
hearing at which the defendant is present, or at a former trial 882
of the cause, or taken by deposition at the instance of the 883
defendant or the state, may be used whenever the witness giving 884
the testimony dies or cannot for any reason be produced at the 885
trial or whenever the witness has, since giving that testimony, 886
become incapacitated to testify. If the former testimony is 887
contained within an authenticated transcript of the testimony, it
shall be proven by the transcript, otherwise by other testimony. 889
(B)(1) At a trial on a charge of a felony violation of 891
section 2905.05, 2907.02, 2907.03, 2907.04, or 2907.05, 2907.21, 893
2907.24, 2907.31, 2907.32, 2907.321, 2907.322, 2907.323, OR 894
22
2919.22 of the Revised Code OR A FELONY OFFENSE OF VIOLENCE AND 895
in which the AN alleged victim of the alleged VIOLATION OR 896
offense was under eleven LESS THAN THIRTEEN years of age when the 897
complaint or information was filed, whichever occurred earlier, 899
the court, upon motion of the prosecutor in the case, may admit 900
videotaped preliminary hearing testimony of the child victim as 901
evidence at the trial, in lieu of the child victim appearing as a 902
witness and testifying at the trial, if all of the following 903
apply:
(a) The videotape of the testimony was made at the 905
preliminary hearing at which probable cause of the violation 906
charged was found; 907
(b) The videotape of the testimony was made in accordance 909
with division (C) of section 2937.11 of the Revised Code; 910
(c) The testimony in the videotape is not excluded by the 912
hearsay rule and otherwise is admissible under the Rules of 913
Evidence. For purposes of this division, testimony is not 914
excluded by the hearsay rule if the testimony is not hearsay 915
under Evidence Rule 801, if the testimony is within an exception 916
to the hearsay rule set forth in Evidence Rule 803, if the child 917
victim who gave the testimony is unavailable as a witness, as 918
defined in Evidence Rule 804, and the testimony is admissible 919
under that rule, or if both of the following apply: 920
(i) The accused had an opportunity and similar motive at 922
the preliminary hearing to develop the testimony of the child 923
victim by direct, cross, or redirect examination; 924
(ii) The court determines that there is reasonable cause 926
to believe that if the child victim who gave the testimony at the 927
preliminary hearing were to testify in person at the trial, the 928
child victim would experience serious emotional trauma as a 929
result of the child victim's participation at the trial. 930
(2) If a child victim of an alleged felony violation of 932
section 2905.05, 2907.02, 2907.03, 2907.04, 2907.05, 2907.06, 933
2907.21, 2907.24, 2907.31, 2907.32, 2907.321, 2907.322, or 934
23
2907.323, or division (B)(5) of section 2919.22 of the Revised 936
Code OR AN ALLEGED FELONY OFFENSE OF VIOLENCE testifies at the 938
preliminary hearing in the case, IF the testimony of the child 939
victim at the preliminary hearing was videotaped pursuant to 940
division (C) of section 2937.11 of the Revised Code, and IF the
defendant in the case files a written objection to the use, 941
pursuant to division (B)(1) of this section, of the videotaped 942
testimony at the trial, the court, immediately after the filing 943
of the objection, shall hold a hearing to determine whether the 944
videotaped testimony of the child victim should be admissible at 945
trial under division (B)(1) of this section and, if it is 946
admissible, whether the child victim should be required to 947
provide limited additional testimony of the type described in 948
this division. At the hearing held pursuant to this division, 949
the defendant and the prosecutor in the case may present any 950
evidence that is relevant to the issues to be determined at the 951
hearing, but the child victim shall not be required to testify at 952
the hearing. 953
After the hearing, the court shall not require the child 955
victim to testify at the trial, unless it determines that both of 956
the following apply: 957
(a) That the testimony of the child victim at trial is 959
necessary for one or more of the following reasons: 960
(i) Evidence that was not available at the time of the 962
testimony of the child victim at the preliminary hearing has been 963
discovered; 964
(ii) The circumstances surrounding the case have changed 966
sufficiently to necessitate that the child victim testify at the 967
trial. 968
(b) That the testimony of the child victim at the trial is 970
necessary to protect the right of the defendant to a fair trial. 971
The court shall enter its finding and the reasons for it in 973
the journal. If the court requires the child victim to testify 974
at the trial, the testimony of the victim shall be limited to the 975
24
new evidence and changed circumstances, and the child victim 976
shall not otherwise be required to testify at the trial. The 977
required testimony of the child victim may be given in person or, 978
upon motion of the prosecution, may be taken by deposition in 979
accordance with division (A) of section 2907.41 2945.481 of the 981
Revised Code provided the deposition is admitted as evidence 982
under division (B) of that section, may be taken outside of the 983
courtroom and televised into the courtroom in accordance with 984
division (C) of that section, or may be taken outside of the 985
courtroom and recorded for showing in the courtroom in accordance 986
with division (D) of that section. 987
(3) If videotaped testimony of a child victim is admitted 989
at trial in accordance with division (B)(1) of this section, the 990
child victim shall not be compelled in any way to appear as a 991
witness at the trial, except as provided in division (B)(2) of 992
this section. 993
(C) An order issued pursuant to division (B) of this 995
section shall specifically identify the child victim concerning 996
whose testimony it pertains. The order shall apply only during 997
the testimony of the child victim it specifically identifies. 998
(D) As used in this section, "prosecutor" has the same 1,000
meaning as in section 2935.01 of the Revised Code. 1,001
Section 2. That existing sections 109.54, 2151.3511, 1,003
2907.41, 2937.11, and 2945.49 of the Revised Code are hereby 1,004
repealed.
Section 3. Section 109.54 of the Revised Code is presented 1,006
in this act as a composite of the section as amended by both Am. 1,007
Sub. H.B. 445 and Sub. H.B. 480 of the 121st General Assembly, 1,008
with the new language of neither of the acts shown in capital 1,009
letters. This is in recognition of the principle stated in 1,010
division (B) of section 1.52 of the Revised Code that such 1,011
amendments are to be harmonized where not substantively 1,012
irreconcilable and constitutes a legislative finding that such is 1,014
the resulting version in effect prior to the effective date of 1,015
25
this act.