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.