As Passed by the House 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- 9
LATELL- REPRESENTATIVES MYERS-GARCIA-MASON-GRENDELL- 10
BRITTON-VERICH-LEWIS-REID-MILLER-CAREY-HOTTINGER-PRINGLE- 11
SCHULER-CLANCY-WINKLER-O'BRIEN-CORE-COLONNA-SYKES-BRADING- 12
MOTTLEY-VESPER-MOTTL-BOYD-OPFER-TAVARES-MALLORY-SALERNO 13
15
A B I L L
To amend sections 109.54, 2151.3511, 2907.41, 17
2937.11, and 2945.49 and to amend, for the 18
purpose of adopting a new section number as 19
indicated in parentheses, section 2907.41
(2945.481) of the Revised Code to expand the list 20
of offenses for which a criminal or juvenile 21
court may admit videotaped testimony of a child 22
victim of the offense or order the child victim's
testimony taken outside the courtroom and 23
televised into or videotaped for replay in the 24
courtroom and to permit the procedures to be used 25
when the victim is under 13 years of age.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 27
Section 1. That sections 109.54, 2151.3511, 2907.41, 29
2937.11, and 2945.49 be amended and section 2907.41 (2945.481) of 30
the Revised Code be amended for the purpose of adopting a new 31
section number as indicated in parentheses to read as follows: 32
Sec. 109.54. (A) The bureau of criminal identification 41
and investigation may investigate any criminal activity in this 42
state that is of statewide or intercounty concern when requested 43
by local authorities and may aid federal authorities, when 44
2
requested, in their investigation of any criminal activity in 45
this state. The bureau may investigate any criminal activity in 46
this state involving drug abuse or illegal drug distribution 47
prohibited under Chapter 3719. or 4729. of the Revised Code. The 48
superintendent and any agent of the bureau may participate, as 49
the director of an organized crime task force established under 50
section 177.02 of the Revised Code or as a member of the 51
investigatory staff of a task force established under that 52
section of that nature, in an investigation of organized criminal 54
activity anywhere within this state under sections 177.01 to 55
177.03 of the Revised Code.
(B) The bureau may provide any trained investigative 57
personnel and specialized equipment that are requested by any 58
sheriff or chief of police, by the authorized designee of any 59
sheriff or chief of police, or by any other authorized law 60
enforcement officer to aid and assist the officer in the 61
investigation and solution of any crime or the control of any 62
criminal activity occurring within the officer's jurisdiction. 63
This assistance shall be furnished by the bureau without 64
disturbing or impairing any of the existing law enforcement 65
authority or the prerogatives of local law enforcement 66
authorities or officers. Investigators provided pursuant to this 67
section, or engaged in an investigation pursuant to section 68
109.83 of the Revised Code, may go armed in the same manner as 69
sheriffs and regularly appointed police officers under section 70
2923.12 of the Revised Code.
(C)(1) The bureau shall obtain recording equipment that 72
can be used to record depositions of the type described in 73
division (A) of section 2151.3511 and division (A) of section 74
2907.41 2945.481 of the Revised Code, or testimony of the type 75
described in division (D) of section 2151.3511 and division (D) 77
of section 2907.41 2945.481 or in division (C) of section 2937.11 78
of the Revised Code, shall obtain closed circuit equipment that 80
can be used to televise testimony of the type described in 81
3
division (C) of section 2151.3511 and division (C) of section 82
2907.41 2945.481 or in division (B) of section 2937.11 of the 84
Revised Code, and shall provide the equipment, upon request, to 85
any court for use in recording any deposition or testimony of one 86
of those types or in televising the testimony in accordance with 88
the applicable division.
(2) The bureau shall obtain the names, addresses, and 90
telephone numbers of persons who are experienced in questioning 91
children in relation to an investigation of a violation of 92
section 2905.03, 2905.05, 2907.02, 2907.03, 2907.04, 2907.05, 94
2907.06, 2907.07, 2907.09, 2907.21, 2907.23, 2907.24, 2907.31, 95
2907.32, 2907.321, 2907.322, or 2907.323, or division (B)(5) of 96
section 2919.22 of the Revised Code OR AN OFFENSE OF VIOLENCE and 97
shall maintain a list of those names, addresses, and telephone 98
numbers. The list shall include a classification of the names, 99
addresses, and telephone numbers by appellate district. Upon 100
request, the bureau shall provide any county sheriff, chief of 101
police, prosecuting attorney, village solicitor, city director of 102
law, or similar chief legal officer with the name, address, and 103
telephone number of any person contained in the list. 104
Sec. 2151.3511. (A)(1) AS USED IN THIS SECTION, "VICTIM" 113
INCLUDES ANY OF THE FOLLOWING PERSONS: 115
(a) A PERSON WHO WAS A VICTIM OF A VIOLATION IDENTIFIED IN 118
DIVISION (A)(2) OF THIS SECTION OR AN ACT THAT WOULD BE AN 120
OFFENSE OF VIOLENCE IF COMMITTED BY AN ADULT; 121
(b) A PERSON AGAINST WHOM WAS DIRECTED ANY CONDUCT THAT 124
CONSTITUTES, OR THAT IS AN ELEMENT OF, A VIOLATION IDENTIFIED IN 125
DIVISION (A)(2) OF THIS SECTION OR AN ACT THAT WOULD BE AN 127
OFFENSE OF VIOLENCE IF COMMITTED BY AN ADULT. 128
(2) In any proceeding in juvenile court involving a 131
complaint in which a child is charged with a violation of section 132
2905.03, 2905.05, 2907.02, 2907.03, 2907.04, 2907.05, 2907.06, 133
2907.07, 2907.09, 2907.21, 2907.23, 2907.24, 2907.31, 2907.32, 134
2907.321, 2907.322, or 2907.323, or division (B)(5) of section 136
4
2919.22 of the Revised Code OR AN ACT THAT WOULD BE AN OFFENSE OF 137
VIOLENCE IF COMMITTED BY AN ADULT and in which an alleged victim 138
OF THE VIOLATION OR ACT was a child who was under eleven LESS 140
THAN THIRTEEN years of age when the complaint was filed, the 141
juvenile judge, upon motion of an attorney for the prosecution, 142
shall order that the testimony of the child victim be taken by 143
deposition. The prosecution also may request that the deposition 144
be videotaped in accordance with division (A)(2)(3) of this 145
section. The judge shall notify the child victim whose 147
deposition is to be taken, the prosecution, and the attorney for 148
the child who is charged WITH THE VIOLATION OR ACT of the date, 149
time, and place for taking the deposition, which. THE notice 151
shall identify the child victim who is to be examined, and SHALL 153
INDICATE whether a request that the deposition be videotaped has 155
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 157
represented by counsel. Depositions shall be taken in the manner 158
provided in civil cases, except that the judge in the proceeding 159
shall preside at the taking of the deposition and shall rule at 160
that time on any objections of the prosecution or the attorney 161
for the child charged WITH THE VIOLATION OR ACT. The prosecution 162
and the attorney for the child charged WITH THE VIOLATION OR ACT 163
shall have the right, as at an adjudication hearing, to full 164
examination and cross-examination of the child victim whose 165
deposition is to be taken. If a deposition taken under this 166
division is intended to be offered as evidence in the proceeding, 167
it shall be filed in the juvenile court in which the action is 168
pending and is admissible in the manner described in division (B) 170
of this section. If a deposition of a child victim taken under 171
this division is admitted as evidence at the proceeding under 172
division (B) of this section, the child victim shall not be
required to testify in person at the proceeding. However, at any 173
time before the conclusion of the proceeding, the attorney for 174
the child charged WITH THE VIOLATION OR ACT may file a motion 175
5
with the judge requesting that another deposition of the child 177
victim be taken because new evidence material to the defense of 178
the child charged has been discovered that the attorney for the 179
child charged could not with reasonable diligence have discovered 180
prior to the taking of the admitted deposition. Any such motion 181
REQUESTING ANOTHER DEPOSITION shall be accompanied by supporting 183
affidavits. Upon the filing of such a THE motion and affidavits, 184
the court may order that additional testimony of the child victim 185
relative to the new evidence be taken by another deposition. If 186
the court orders the taking of another deposition under this 187
provision, the deposition shall be taken in accordance with this 188
division; if the admitted deposition was a videotaped deposition 189
taken in accordance with division (A)(2)(3) of this section, the 190
new deposition also shall be videotaped in accordance with that 191
division, and, in other cases, the new deposition may be 192
videotaped in accordance with that division.
(2)(3) If the prosecution requests that a deposition to be 194
taken under division (A)(1)(2) of this section be videotaped, the 196
juvenile judge shall order that the deposition be videotaped in 197
accordance with this division. If a juvenile judge issues such 198
an order TO VIDEO TAPE THE DEPOSITION, the judge shall exclude 199
from the room in which the deposition is to be taken every person 201
except the child victim giving the testimony, the judge, one or 202
more interpreters if needed, the attorneys for the prosecution 203
and the child who is charged with the violation OR ACT, any 204
person needed to operate the equipment to be used, one person 205
chosen by the child victim giving the deposition, and any person 206
whose presence the judge determines would contribute to the 207
welfare and well-being of the child victim giving the deposition. 208
The person chosen by the child victim shall not himself or 209
herself be a witness in the proceeding, and, both before and 211
during the deposition, shall not discuss the testimony of the 213
child victim with any other witness in the proceeding. To the 214
extent feasible, any person operating the recording equipment 215
6
shall be restricted to a room adjacent to the room in which the 216
deposition is being taken, or to a location in the room in which 217
the deposition is being taken that is behind a screen or mirror 218
so that any such THE person OPERATING THE RECORDING EQUIPMENT can 219
see and hear, but cannot be seen or heard by, the child victim 220
giving the deposition during the deposition. The child who is 221
charged with the violation OR ACT shall be permitted to observe 222
and hear the testimony of the child victim giving the deposition 223
on a monitor and, shall be provided with an electronic means of 224
immediate communication with the attorney of the child who is 225
charged with the violation OR ACT during the testimony, but AND 226
shall be restricted to a location that is such that FROM WHICH 227
the child who is charged with the violation OR ACT cannot be seen 229
or heard by the child victim giving the deposition, except on a 230
monitor provided for that purpose. The child victim giving the 231
deposition shall be provided with a monitor on which the child 232
victim can observe, while giving testimony, the child who is 233
charged with the violation OR ACT. The judge, at the judge's 235
discretion, may preside at the deposition by electronic means 237
from outside the room in which the deposition is to be taken; if 238
the judge presides in such a manner BY ELECTRONIC MEANS, the 239
judge shall be provided with monitors on which the judge can see 241
each person in the room in which the deposition is to be taken 242
and with an electronic means of communication with each such 243
person IN THAT ROOM, and each person in the room shall be
provided with a monitor on which that person can see the judge 245
and WITH an electronic means of communication with the judge. A 247
deposition that is videotaped under this division shall be taken 248
and filed in the manner described in division (A)(1)(2) of this 249
section and is admissible in the manner described in this 251
division and division (B) of this section, and, if such a 252
videotaped deposition THAT IS VIDEOTAPED UNDER THIS DIVISION is 253
admitted as evidence at the proceeding, the child victim shall 254
not be required to testify in person at the proceeding. No 255
7
deposition videotaped under this division shall be admitted as 256
evidence at any proceeding unless division (B) of this section is 257
satisfied relative to the deposition and all of the following 258
apply relative to the recording: 259
(a) The recording is both aural and visual and is recorded 261
on film or videotape, or by other electronic means;. 262
(b) The recording is authenticated under the Rules of 264
Evidence and the Rules of Criminal Procedure as a fair and 265
accurate representation of what occurred, and the recording is 266
not altered other than at the direction and under the supervision 267
of the judge in the proceeding;. 268
(c) Each voice on the recording that is material to the 270
testimony on the recording or the making of the recording, as 271
determined by the judge, is identified;. 272
(d) Both the prosecution and the child who is charged with 274
the violation OR ACT are afforded an opportunity to view the 275
recording before it is shown in the proceeding. 276
(B)(1) At any proceeding in relation to which a deposition 278
was taken under division (A) of this section, the deposition or a 279
part of it is admissible in evidence upon motion of the 280
prosecution if the testimony in the deposition or the part to be 281
admitted is not excluded by the hearsay rule and if the 282
deposition or the part to be admitted otherwise is admissible 283
under the Rules of Evidence. For purposes of this division, 284
testimony is not excluded by the hearsay rule if the testimony is 285
not hearsay under Evidence Rule 801; if the testimony is within 286
an exception to the hearsay rule set forth in Evidence Rule 803; 287
if the child victim who gave the testimony is unavailable as a 288
witness, as defined in Evidence Rule 804, and the testimony is 289
admissible under that rule; or if both of the following apply: 290
(a) The child who is charged with the violation OR ACT had 292
an opportunity and similar motive at the time of the taking of 293
the deposition to develop the testimony by direct, cross, or 294
redirect examination;. 295
8
(b) The judge determines that there is reasonable cause to 297
believe that, if the child victim who gave the testimony in the 298
deposition were to testify in person at the proceeding, the child 299
victim would experience serious emotional trauma as a result of 300
his THE CHILD VICTIM'S participation at the proceeding. 301
(2) Objections to receiving in evidence a deposition or a 303
part of it under division (B) of this section shall be made as 304
provided in civil actions. 305
(3) The provisions of divisions (A) and (B) of this 307
section are in addition to any other provisions of the Revised 308
Code, the Rules of Juvenile Procedure, the Rules of Criminal 309
Procedure, or the Rules of Evidence that pertain to the taking or 310
admission of depositions in a juvenile court proceeding, and do 311
not limit the admissibility under any such OF THOSE other 312
provisions of any deposition taken under division (A) of this 314
section or otherwise taken. 315
(C) In any proceeding in juvenile court involving a 317
complaint in which a child is charged with a violation listed in 318
division (A)(1)(2) of this section OR AN ACT THAT WOULD BE AN 320
OFFENSE OF VIOLENCE IF COMMITTED BY AN ADULT and in which an
alleged victim OF THE VIOLATION OR OFFENSE was a child who was 322
under eleven LESS THAN THIRTEEN years of age when the complaint 323
was filed, the prosecution may file a motion with the juvenile 324
judge requesting the judge to order the testimony of the child 325
victim to be taken in a room other than the room in which the 326
proceeding is being conducted and be televised, by closed circuit 327
equipment, into the room in which the proceeding is being 328
conducted to be viewed by the child who is charged with the 329
violation OR ACT and any other persons who are not permitted in 330
the room in which the testimony is to be taken but who would have 332
been present during the testimony of the child victim had it been 333
given in the room in which the proceeding is being conducted. 334
Except for good cause shown, the prosecution shall file such a 335
motion UNDER THIS DIVISION at least seven days before the date of 336
9
the proceeding. The juvenile judge may issue such an THE order, 338
upon THE motion of the prosecution FILED UNDER THIS DIVISION, if 340
the judge determines that the child victim is unavailable to 342
testify in the room in which the proceeding is being conducted in 343
the physical presence of the child charged with the violation OR 344
ACT, due to one or more of the reasons set forth in division (E) 345
of this section. If a juvenile judge issues such an order OF 346
THAT NATURE, the judge shall exclude from the room in which the 347
testimony is to be taken every person except a person described 348
in division (A)(2)(3) of this section. The judge, at the judge's 350
discretion, may preside during the giving of the testimony by 351
electronic means from outside the room in which it is being 352
given, subject to the limitations set forth in division (A)(2)(3) 354
of this section. To the extent feasible, any person operating 355
the televising equipment shall be hidden from the sight and 356
hearing of the child victim giving the testimony, in a manner 357
similar to that described in division (A)(2)(3) of this section. 358
The child who is charged with the violation OR ACT shall be 360
permitted to observe and hear the testimony of the child victim 361
giving the testimony on a monitor and, shall be provided with an 362
electronic means of immediate communication with the attorney of 363
the child who is charged with the violation OR ACT during the 364
testimony, but AND shall be restricted to a location that is such 365
that FROM WHICH the child who is charged with the violation OR 367
ACT cannot be seen or heard by the child victim giving the 368
testimony, except on a monitor provided for that purpose. The 369
child victim giving the testimony shall be provided with a 370
monitor on which the child victim can observe, while giving 371
testimony, the child who is charged with the violation OR ACT. 372
(D) In any proceeding in juvenile court involving a 374
complaint in which a child is charged with a violation listed in 375
division (A)(1)(2) of this section OR AN ACT THAT WOULD BE AN 377
OFFENSE OF VIOLENCE IF COMMITTED BY AN ADULT and in which an
alleged victim OF THE VIOLATION OR OFFENSE was a child who was 379
10
under eleven LESS THAN THIRTEEN years of age when the complaint 380
was filed, the prosecution may file a motion with the juvenile 381
judge requesting the judge to order the testimony of the child 382
victim to be taken outside of the room in which the proceeding is 383
being conducted and be recorded for showing in the room in which 384
the proceeding is being conducted before the judge, the child who 385
is charged with the violation OR ACT, and any other persons who 386
would have been present during the testimony of the child victim 387
had it been given in the room in which the proceeding is being 388
conducted. Except for good cause shown, the prosecution shall 389
file such a motion UNDER THIS DIVISION at least seven days before 391
the date of the proceeding. The juvenile judge may issue such an 392
THE order, upon THE motion of the prosecution FILED UNDER THIS 394
DIVISION, if the judge determines that the child victim is 396
unavailable to testify in the room in which the proceeding is 397
being conducted in the physical presence of the child charged 398
with the violation OR ACT, due to one or more of the reasons set 399
forth in division (E) of this section. If a juvenile judge 400
issues such an order OF THAT NATURE, the judge shall exclude from 401
the room in which the testimony is to be taken every person 402
except a person described in division (A)(2)(3) of this section. 403
To the extent feasible, any person operating the recording 405
equipment shall be hidden from the sight and hearing of the child 406
victim giving the testimony, in a manner similar to that 407
described in division (A)(2)(3) of this section. The child who 408
is charged with the violation OR ACT shall be permitted to 410
observe and hear the testimony of the child victim giving the 411
testimony on a monitor and, shall be provided with an electronic 412
means of immediate communication with the attorney of the child 413
who is charged with the violation OR ACT during the testimony, 414
but AND shall be restricted to a location that is such that FROM 415
WHICH the child who is charged with the violation OR ACT cannot 417
be seen or heard by the child victim giving the testimony, except 418
on a monitor provided for that purpose. The child victim giving 419
11
the testimony shall be provided with a monitor on which the child 420
victim can observe, while giving testimony, the child who is 421
charged with the violation OR ACT. No order for the taking of 422
testimony by recording shall be issued under this division unless 423
the provisions set forth in divisions (A)(2)(3)(a), (b), (c), and 424
(d) of this section apply to the recording of the testimony. 426
(E) For purposes of divisions (C) and (D) of this section, 428
a juvenile judge may order the testimony of a child victim to be 429
taken outside of the room in which a proceeding is being 430
conducted if the judge determines that the child victim is 431
unavailable to testify in the room in the physical presence of 432
the child charged with the violation OR ACT due to one or more of 433
the following circumstances: 434
(1) The persistent refusal of the child victim to testify 436
despite judicial requests to do so; 437
(2) The inability of the child victim to communicate about 439
the alleged violation OR OFFENSE because of extreme fear, failure 440
of memory, or another similar reason; 442
(3) The substantial likelihood that the child victim will 444
suffer serious emotional trauma from so testifying. 445
(F)(1) If a juvenile judge issues an order pursuant to 447
division (C) or (D) of this section that requires the testimony 448
of a child victim in a juvenile court proceeding to be taken 449
outside of the room in which the proceeding is being conducted, 450
the order shall specifically identify the child victim to whose 451
testimony it applies, the order applies only during the testimony 452
of the specified child victim, and the child victim giving the 453
testimony shall not be required to testify at the proceeding 454
other than in accordance with the order. The authority of a 455
judge to close the taking of a deposition under division 457
(A)(2)(3) of this section or a proceeding under division (C) or 458
(D) of this section is in addition to the authority of a judge to 459
close a hearing pursuant to section 2151.35 of the Revised Code. 460
(2) A juvenile judge who makes any determination regarding 462
12
the admissibility of a deposition under divisions (A) and (B) of 463
this section, the videotaping of a deposition under division 465
(A)(2)(3) of this section, or the taking of testimony outside of 466
the room in which a proceeding is being conducted under division 467
(C) or (D) of this section, shall enter the determination and 468
findings on the record in the proceeding. 469
Sec. 2937.11. (A)(1) AS USED IN THIS SECTION, "VICTIM" 478
INCLUDES ANY PERSON WHO WAS A VICTIM OF A FELONY VIOLATION 479
IDENTIFIED IN DIVISION (B) OF THIS SECTION OR A FELONY OFFENSE OF 481
VIOLENCE OR AGAINST WHOM WAS DIRECTED ANY CONDUCT THAT 482
CONSTITUTES, OR THAT IS AN ELEMENT OF, A FELONY VIOLATION 483
IDENTIFIED IN DIVISION (B) OF THIS SECTION OR A FELONY OFFENSE OF 485
VIOLENCE.
(2) At the preliminary hearing set pursuant to section 488
2937.10 of the Revised Code and the Criminal Rules, the 489
prosecutor may state, but is not required to state, orally the 490
case for the state and shall then proceed to examine witnesses
and introduce exhibits for the state. The accused and the 491
magistrate have full right of cross examination, and the accused 492
has the right of inspection of exhibits prior to their 493
introduction. The hearing shall be conducted under the rules of 494
evidence prevailing in criminal trials generally. On motion of 495
either the state or the accused, witnesses shall be separated and 496
not permitted in the hearing room except when called to testify. 497
(B) In a case involving an alleged felony violation of 499
section 2905.05, 2907.02, 2907.03, 2907.04, 2907.05, 2907.06, 500
2907.21, 2907.24, 2907.31, 2907.32, 2907.321, 2907.322, or 501
2907.323, or division (B)(5) of section 2919.22 of the Revised 503
Code OR AN ALLEGED FELONY OFFENSE OF VIOLENCE AND in which an 505
alleged victim of the alleged VIOLATION OR offense was under
eleven LESS THAN THIRTEEN years of age when the complaint or 507
information was filed, whichever occurred earlier, upon motion of 508
the prosecution, the testimony of the child victim at the 509
preliminary hearing may be taken in a room other than the room in 510
13
which the preliminary hearing is being conducted and be 511
televised, by closed circuit equipment, into the room in which 512
the preliminary hearing is being conducted, in accordance with 513
division (C) of section 2907.41 2945.481 of the Revised Code. 515
(C) In a case involving an alleged felony violation of 517
section 2907.02, 2907.03, 2907.04, or 2907.05 of the Revised Code 519
LISTED IN DIVISION (B) OF THIS SECTION OR AN ALLEGED FELONY 520
OFFENSE OF VIOLENCE AND in which an alleged victim of the alleged 521
VIOLATION OR offense was under eleven LESS THAN THIRTEEN years of 522
age when the complaint or information was filed, whichever 524
occurred earlier, the court, on written motion of the prosecutor 525
in the case filed at least three days prior to the hearing, shall 526
order that all testimony of the child victim be recorded and 527
preserved on videotape, in addition to being recorded for 528
purposes of the transcript of the proceeding. If such an order is 529
issued, it shall specifically identify the child victim 530
concerning whose testimony it pertains, apply only during the 531
testimony of the child victim it specifically identifies, and 532
apply to all testimony of the child victim presented at the 533
hearing, regardless of whether the child victim is called as a 534
witness by the prosecution or by the defense.
Sec. 2907.41 2945.481. (A)(1) AS USED IN THIS SECTION, 543
"VICTIM" INCLUDES ANY PERSON WHO WAS A VICTIM OF A VIOLATION 545
IDENTIFIED IN DIVISION (A)(2) OF THIS SECTION OR AN OFFENSE OF 547
VIOLENCE OR AGAINST WHOM WAS DIRECTED ANY CONDUCT THAT 548
CONSTITUTES, OR THAT IS AN ELEMENT OF, A VIOLATION IDENTIFIED IN 549
DIVISION (A)(2) OF THIS SECTION OR AN OFFENSE OF VIOLENCE. 550
(2) In any proceeding in the prosecution of a charge of a 554
violation of section 2905.03, 2905.05, 2907.02, 2907.03, 2907.04, 555
2907.05, 2907.06, 2907.07, 2907.09, 2907.21, 2907.23, 2907.24, 557
2907.31, 2907.32, 2907.321, 2907.322, or 2907.323, or division 558
(B)(5) of section 2919.22 of the Revised Code OR AN OFFENSE OF 559
VIOLENCE AND in which an alleged victim OF THE VIOLATION OR 560
OFFENSE was a child who was under eleven LESS THAN THIRTEEN years 561
14
of age when the complaint, indictment, or information was filed, 563
whichever occurred earlier, the judge of the court in which the 564
prosecution is being conducted, upon motion of an attorney for 565
the prosecution, shall order that the testimony of the child 566
victim be taken by deposition. The prosecution also may request 567
that the deposition be videotaped in accordance with division 568
(A)(2)(3) of this section. The judge shall notify the child 570
victim whose deposition is to be taken, the prosecution, and the 571
defense of the date, time, and place for taking the deposition, 572
which. THE notice shall identify the child victim who is to be 574
examined, and SHALL INDICATE whether a request that the 575
deposition be videotaped has been made. The defendant shall have 576
the right to attend the deposition and the right to be 577
represented by counsel. Depositions shall be taken in the manner 578
provided in civil cases, except that the judge shall preside at 579
the taking of the deposition and shall rule at that time on any 580
objections of the prosecution or the attorney for the defense. 581
The prosecution and the attorney for the defense shall have the 582
right, as at trial, to full examination and cross-examination of 583
the child victim whose deposition is to be taken. If a 584
deposition taken under this division is intended to be offered as 585
evidence in the proceeding, it shall be filed in the court in 586
which the action is pending and is admissible in the manner 587
described in division (B) of this section. If a deposition of a 588
child victim taken under this division is admitted as evidence at 589
the proceeding under division (B) of this section, the child 590
victim shall not be required to testify in person at the 591
proceeding. However, at any time before the conclusion of the 592
proceeding, the attorney for the defense may file a motion with 593
the judge requesting that another deposition of the child victim 594
be taken because new evidence material to the defense has been 595
discovered that the attorney for the defense could not with 596
reasonable diligence have discovered prior to the taking of the 597
admitted deposition. Any such A motion FOR ANOTHER DEPOSITION 599
15
shall be accompanied by supporting affidavits. Upon the filing 600
of such a motion FOR ANOTHER DEPOSITION and affidavits, the court 602
may order that additional testimony of the child victim relative 603
to the new evidence be taken by another deposition. If the court 604
orders the taking of another deposition under this provision, the 605
deposition shall be taken in accordance with this division; if 606
the admitted deposition was a videotaped deposition taken in 607
accordance with division (A)(2)(3) of this section, the new 608
deposition also shall be videotaped in accordance with that 609
division and in other cases, the new deposition may be videotaped 610
in accordance with that division.
(2)(3) If the prosecution requests that a deposition to be 612
taken under division (A)(1)(2) of this section be videotaped, the 614
judge shall order that the deposition be videotaped in accordance 615
with this division. If a judge issues such an order THAT THE 616
DEPOSITION BE VIDEOTAPED, the judge shall exclude from the room 618
in which the deposition is to be taken every person except the 619
child victim giving the testimony, the judge, one or more 620
interpreters if needed, the attorneys for the prosecution and the 621
defense, any person needed to operate the equipment to be used, 622
one person chosen by the child victim giving the deposition, and 623
any person whose presence the judge determines would contribute 624
to the welfare and well-being of the child victim giving the 625
deposition. The person chosen by the child victim shall not 626
himself or herself be a witness in the proceeding and, both 628
before and during the deposition, shall not discuss the testimony 630
of the child victim with any other witness in the proceeding. To 631
the extent feasible, any person operating the recording equipment 632
shall be restricted to a room adjacent to the room in which the 633
deposition is being taken, or to a location in the room in which 634
the deposition is being taken that is behind a screen or mirror, 635
so that any such THE person OPERATING THE RECORDING EQUIPMENT can 636
see and hear, but cannot be seen or heard by, the child victim 637
giving the deposition during the deposition. The defendant shall 638
16
be permitted to observe and hear the testimony of the child 639
victim giving the deposition on a monitor and, shall be provided 640
with an electronic means of immediate communication with the 642
defendant's attorney during the testimony but, AND shall be 644
restricted to a location that is such that FROM WHICH the 646
defendant cannot be seen or heard by the child victim giving the 648
deposition, except on a monitor provided for that purpose. The 649
child victim giving the deposition shall be provided with a 650
monitor on which the child victim can observe, during the 651
testimony, the defendant. The judge, at the judge's discretion,
may preside at the deposition by electronic means from outside 652
the room in which the deposition is to be taken; if the judge 653
presides in such a manner BY ELECTRONIC MEANS, the judge shall be 655
provided with monitors on which the judge can see each person in 656
the room in which the deposition is to be taken and with an 657
electronic means of communication with each person, and each 658
person in the room shall be provided with a monitor on which that 659
person can see the judge and WITH an electronic means of 660
communication with the judge. A deposition that is videotaped 661
under this division shall be taken and filed in the manner 662
described in division (A)(1)(2) of this section and is admissible 664
in the manner described in this division and division (B) of this 665
section, and, if such a videotaped deposition THAT IS VIDEOTAPED 666
UNDER THIS DIVISION is admitted as evidence at the proceeding, 667
the child victim shall not be required to testify in person at 668
the proceeding. No deposition videotaped under this division 669
shall be admitted as evidence at any proceeding unless division 670
(B) of this section is satisfied relative to the deposition and 671
all of the following apply relative to the recording: 672
(a) The recording is both aural and visual and is recorded 674
on film or videotape, or by other electronic means;. 675
(b) The recording is authenticated under the Rules of 677
Evidence and the Rules of Criminal Procedure as a fair and 678
accurate representation of what occurred, and the recording is 679
17
not altered other than at the direction and under the supervision 680
of the judge in the proceeding;. 681
(c) Each voice on the recording that is material to the 683
testimony on the recording or the making of the recording, as 684
determined by the judge, is identified;. 685
(d) Both the prosecution and the defendant are afforded an 687
opportunity to view the recording before it is shown in the 688
proceeding. 689
(B)(1) At any proceeding in a prosecution in relation to 691
which a deposition was taken under division (A) of this section, 692
the deposition or a part of it is admissible in evidence upon 693
motion of the prosecution if the testimony in the deposition or 694
the part to be admitted is not excluded by the hearsay rule and 695
if the deposition or the part to be admitted otherwise is 696
admissible under the Rules of Evidence. For purposes of this 697
division, testimony is not excluded by the hearsay rule if the 698
testimony is not hearsay under Evidence Rule 801; if the 699
testimony is within an exception to the hearsay rule set forth in 700
Evidence Rule 803; if the child victim who gave the testimony is 701
unavailable as a witness, as defined in Evidence Rule 804, and 702
the testimony is admissible under that rule; or if both of the 703
following apply: 704
(a) The defendant had an opportunity and similar motive at 706
the time of the taking of the deposition to develop the testimony 707
by direct, cross, or redirect examination;. 708
(b) The judge determines that there is reasonable cause to 710
believe that, if the child victim who gave the testimony in the 711
deposition were to testify in person at the proceeding, the child 712
victim would experience serious emotional trauma as a result of 713
his THE CHILD VICTIM'S participation at the proceeding. 714
(2) Objections to receiving in evidence a deposition or a 716
part of it under division (B) of this section shall be made as 717
provided in civil actions. 718
(3) The provisions of divisions (A) and (B) of this 720
18
section are in addition to any other provisions of the Revised 721
Code, the Rules of Criminal Procedure, or the Rules of Evidence 722
that pertain to the taking or admission of depositions in a 723
criminal proceeding and do not limit the admissibility under any 724
such OF THOSE other provisions of any deposition taken under 725
division (A) of this section or otherwise taken. 727
(C) In any proceeding in the prosecution of any charge of 729
a violation listed in division (A)(1)(2) of this section OR AN 731
OFFENSE OF VIOLENCE AND in which an alleged victim OF THE 733
VIOLATION OR OFFENSE was a child who was under eleven LESS THAN 734
THIRTEEN years of age when the complaint, indictment, or 735
information was filed, whichever occurred earlier, the 736
prosecution may file a motion with the judge requesting the judge 737
to order the testimony of the child victim to be taken in a room 738
other than the room in which the proceeding is being conducted 739
and be televised, by closed circuit equipment, into the room in 740
which the proceeding is being conducted to be viewed by the jury, 741
if applicable, the defendant, and any other persons who are not 742
permitted in the room in which the testimony is to be taken but 743
who would have been present during the testimony of the child 744
victim had it been given in the room in which the proceeding is 745
being conducted. Except for good cause shown, the prosecution 746
shall file such a motion UNDER THIS DIVISION at least seven days 748
before the date of the proceeding. The judge may issue such an 749
THE order, upon THE motion of the prosecution FILED UNDER THIS 750
SECTION, if the judge determines that the child victim is 751
unavailable to testify in the room in which the proceeding is 752
being conducted in the physical presence of the defendant, for 753
one or more of the reasons set forth in division (E) of this 754
section. If a judge issues such an order OF THAT NATURE, the 755
judge shall exclude from the room in which the testimony is to be 757
taken every person except a person described in division 758
(A)(2)(3) of this section. The judge, at the judge's discretion, 760
may preside during the giving of the testimony by electronic 761
19
means from outside the room in which it is being given, subject 762
to the limitations set forth in division (A)(2)(3) of this 764
section. To the extent feasible, any person operating the
televising equipment shall be hidden from the sight and hearing 765
of the child victim giving the testimony, in a manner similar to 766
that described in division (A)(2)(3) of this section. The 767
defendant shall be permitted to observe and hear the testimony of 769
the child victim giving the testimony on a monitor and, shall be 770
provided with an electronic means of immediate communication with 771
the defendant's attorney during the testimony but, AND shall be 772
restricted to a location that is such that FROM WHICH the 774
defendant cannot be seen or heard by the child victim giving the 776
testimony, except on a monitor provided for that purpose. The 777
child victim giving the testimony shall be provided with a 778
monitor on which the child victim can observe, during the 779
testimony, the defendant.
(D) In any proceeding in the prosecution of any charge of 781
a violation listed in division (A)(1)(2) of this section OR AN 783
OFFENSE OF VIOLENCE AND in which an alleged victim OF THE 784
VIOLATION OR OFFENSE was a child who was under eleven LESS THAN 785
THIRTEEN years of age when the complaint, indictment, or 786
information was filed, whichever occurred earlier, the 787
prosecution may file a motion with the judge requesting the judge 788
to order the testimony of the child victim to be taken outside of 789
the room in which the proceeding is being conducted and be 790
recorded for showing in the room in which the proceeding is being 791
conducted before the judge, the jury, if applicable, the 792
defendant, and any other persons who would have been present 793
during the testimony of the child victim had it been given in the 794
room in which the proceeding is being conducted. Except for good
cause shown, the prosecution shall file such a motion UNDER THIS 796
DIVISION at least seven days before the date of the proceeding. 797
The judge may issue such an THE order, upon THE motion of the 798
prosecution FILED UNDER THIS DIVISION, if the judge determines 799
20
that the child victim is unavailable to testify in the room in 801
which the proceeding is being conducted in the physical presence 802
of the defendant, for one or more of the reasons set forth in 803
division (E) of this section. If a judge issues such an order OF 804
THAT NATURE, the judge shall exclude from the room in which the 806
testimony is to be taken every person except a person described 807
in division (A)(2)(3) of this section. To the extent feasible, 808
any person operating the recording equipment shall be hidden from 809
the sight and hearing of the child victim giving the testimony, 810
in a manner similar to that described in division (A)(2)(3) of 811
this section. The defendant shall be permitted to observe and 813
hear the testimony of the child victim who is giving the 814
testimony on a monitor and, shall be provided with an electronic 815
means of immediate communication with the defendant's attorney 816
during the testimony but, AND shall be restricted to a location 818
that is such that FROM WHICH the defendant cannot be seen or 819
heard by the child victim giving the testimony, except on a 821
monitor provided for that purpose. The child victim giving the 822
testimony shall be provided with a monitor on which the child 823
victim can observe, during the testimony, the defendant. No 825
order for the taking of testimony by recording shall be issued 826
under this division unless the provisions set forth in divisions 827
(A)(2)(3)(a), (b), (c), and (d) of this section apply to the 829
recording of the testimony.
(E) For purposes of divisions (C) and (D) of this section, 831
a judge may order the testimony of a child victim to be taken 832
outside the room in which the proceeding is being conducted if 833
the judge determines that the child victim is unavailable to 834
testify in the room in the physical presence of the defendant due 835
to one or more of the following: 836
(1) The persistent refusal of the child victim to testify 838
despite judicial requests to do so; 839
(2) The inability of the child victim to communicate about 841
the alleged violation OR OFFENSE because of extreme fear, failure 842
21
of memory, or another similar reason; 844
(3) The substantial likelihood that the child victim will 846
suffer serious emotional trauma from so testifying. 847
(F)(1) If a judge issues an order pursuant to division (C) 849
or (D) of this section that requires the testimony of a child 850
victim in a criminal proceeding to be taken outside of the room 851
in which the proceeding is being conducted, the order shall 852
specifically identify the child victim to whose testimony it 853
applies, the order applies only during the testimony of the 854
specified child victim, and the child victim giving the testimony 855
shall not be required to testify at the proceeding other than in 856
accordance with the order. 857
(2) A judge who makes any determination regarding the 859
admissibility of a deposition under divisions (A) and (B) of this 860
section, the videotaping of a deposition under division (A)(2)(3) 862
of this section, or the taking of testimony outside of the room 863
in which a proceeding is being conducted under division (C) or 864
(D) of this section, shall enter the determination and findings 865
on the record in the proceeding. 866
Sec. 2945.49. (A)(1) AS USED IN THIS SECTION, "VICTIM" 875
INCLUDES ANY PERSON WHO WAS A VICTIM OF A FELONY VIOLATION 876
IDENTIFIED IN DIVISION (B)(1) OF THIS SECTION OR A FELONY OFFENSE 878
OF VIOLENCE OR AGAINST WHOM WAS DIRECTED ANY CONDUCT THAT 879
CONSTITUTES, OR THAT IS AN ELEMENT OF, A FELONY VIOLATION 880
IDENTIFIED IN DIVISION (B)(1) OF THIS SECTION OR A FELONY OFFENSE 882
OF VIOLENCE.
(2) Testimony taken at an examination or a preliminary 885
hearing at which the defendant is present, or at a former trial 886
of the cause, or taken by deposition at the instance of the 887
defendant or the state, may be used whenever the witness giving 888
the testimony dies or cannot for any reason be produced at the 889
trial or whenever the witness has, since giving that testimony, 890
become incapacitated to testify. If the former testimony is 891
contained within an authenticated transcript of the testimony, it
22
shall be proven by the transcript, otherwise by other testimony. 893
(B)(1) At a trial on a charge of a felony violation of 895
section 2905.05, 2907.02, 2907.03, 2907.04, or 2907.05, 2907.21, 897
2907.24, 2907.31, 2907.32, 2907.321, 2907.322, 2907.323, OR 898
2919.22 of the Revised Code OR A FELONY OFFENSE OF VIOLENCE AND 899
in which the AN alleged victim of the alleged VIOLATION OR 900
offense was under eleven LESS THAN THIRTEEN years of age when the 901
complaint or information was filed, whichever occurred earlier, 903
the court, upon motion of the prosecutor in the case, may admit 904
videotaped preliminary hearing testimony of the child victim as 905
evidence at the trial, in lieu of the child victim appearing as a 906
witness and testifying at the trial, if all of the following 907
apply:
(a) The videotape of the testimony was made at the 909
preliminary hearing at which probable cause of the violation 910
charged was found; 911
(b) The videotape of the testimony was made in accordance 913
with division (C) of section 2937.11 of the Revised Code; 914
(c) The testimony in the videotape is not excluded by the 916
hearsay rule and otherwise is admissible under the Rules of 917
Evidence. For purposes of this division, testimony is not 918
excluded by the hearsay rule if the testimony is not hearsay 919
under Evidence Rule 801, if the testimony is within an exception 920
to the hearsay rule set forth in Evidence Rule 803, if the child 921
victim who gave the testimony is unavailable as a witness, as 922
defined in Evidence Rule 804, and the testimony is admissible 923
under that rule, or if both of the following apply: 924
(i) The accused had an opportunity and similar motive at 926
the preliminary hearing to develop the testimony of the child 927
victim by direct, cross, or redirect examination; 928
(ii) The court determines that there is reasonable cause 930
to believe that if the child victim who gave the testimony at the 931
preliminary hearing were to testify in person at the trial, the 932
child victim would experience serious emotional trauma as a 933
23
result of the child victim's participation at the trial. 934
(2) If a child victim of an alleged felony violation of 936
section 2905.05, 2907.02, 2907.03, 2907.04, 2907.05, 2907.06, 937
2907.21, 2907.24, 2907.31, 2907.32, 2907.321, 2907.322, or 938
2907.323, or division (B)(5) of section 2919.22 of the Revised 940
Code OR AN ALLEGED FELONY OFFENSE OF VIOLENCE testifies at the 942
preliminary hearing in the case, IF the testimony of the child 943
victim at the preliminary hearing was videotaped pursuant to 944
division (C) of section 2937.11 of the Revised Code, and IF the
defendant in the case files a written objection to the use, 945
pursuant to division (B)(1) of this section, of the videotaped 946
testimony at the trial, the court, immediately after the filing 947
of the objection, shall hold a hearing to determine whether the 948
videotaped testimony of the child victim should be admissible at 949
trial under division (B)(1) of this section and, if it is 950
admissible, whether the child victim should be required to 951
provide limited additional testimony of the type described in 952
this division. At the hearing held pursuant to this division, 953
the defendant and the prosecutor in the case may present any 954
evidence that is relevant to the issues to be determined at the 955
hearing, but the child victim shall not be required to testify at 956
the hearing. 957
After the hearing, the court shall not require the child 959
victim to testify at the trial, unless it determines that both of 960
the following apply: 961
(a) That the testimony of the child victim at trial is 963
necessary for one or more of the following reasons: 964
(i) Evidence that was not available at the time of the 966
testimony of the child victim at the preliminary hearing has been 967
discovered; 968
(ii) The circumstances surrounding the case have changed 970
sufficiently to necessitate that the child victim testify at the 971
trial. 972
(b) That the testimony of the child victim at the trial is 974
24
necessary to protect the right of the defendant to a fair trial. 975
The court shall enter its finding and the reasons for it in 977
the journal. If the court requires the child victim to testify 978
at the trial, the testimony of the victim shall be limited to the 979
new evidence and changed circumstances, and the child victim 980
shall not otherwise be required to testify at the trial. The 981
required testimony of the child victim may be given in person or, 982
upon motion of the prosecution, may be taken by deposition in 983
accordance with division (A) of section 2907.41 2945.481 of the 985
Revised Code provided the deposition is admitted as evidence 986
under division (B) of that section, may be taken outside of the 987
courtroom and televised into the courtroom in accordance with 988
division (C) of that section, or may be taken outside of the 989
courtroom and recorded for showing in the courtroom in accordance 990
with division (D) of that section. 991
(3) If videotaped testimony of a child victim is admitted 993
at trial in accordance with division (B)(1) of this section, the 994
child victim shall not be compelled in any way to appear as a 995
witness at the trial, except as provided in division (B)(2) of 996
this section. 997
(C) An order issued pursuant to division (B) of this 999
section shall specifically identify the child victim concerning 1,000
whose testimony it pertains. The order shall apply only during 1,001
the testimony of the child victim it specifically identifies. 1,002
(D) As used in this section, "prosecutor" has the same 1,004
meaning as in section 2935.01 of the Revised Code. 1,005
Section 2. That existing sections 109.54, 2151.3511, 1,007
2907.41, 2937.11, and 2945.49 of the Revised Code are hereby 1,008
repealed.
Section 3. Section 109.54 of the Revised Code is presented 1,010
in this act as a composite of the section as amended by both Am. 1,011
Sub. H.B. 445 and Sub. H.B. 480 of the 121st General Assembly, 1,012
with the new language of neither of the acts shown in capital 1,013
letters. This is in recognition of the principle stated in 1,014
25
division (B) of section 1.52 of the Revised Code that such 1,015
amendments are to be harmonized where not substantively 1,016
irreconcilable and constitutes a legislative finding that such is 1,018
the resulting version in effect prior to the effective date of 1,019
this act.