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          

                                                          4      

                                                                 
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          

                                                          5      

                                                                 
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          

                                                          7      

                                                                 
      (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          

                                                          8      

                                                                 
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          

                                                          9      

                                                                 
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          

                                                          10     

                                                                 
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          

                                                          11     

                                                                 
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          

                                                          12     

                                                                 
(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          

                                                          13     

                                                                 
      (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          

                                                          14     

                                                                 
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.