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|
As Introduced
122nd General Assembly
Regular Session
1997-1998 | S. B. No. 53 |
SENATORS NEIN-CUPP-KEARNS-LATTA-WHITE
A BILL
To amend sections 109.54, 2151.3511, 2907.41, 2937.11, and
2945.49 and to amend, for the purpose of adopting a new section
number as indicated in parentheses, section 2907.41 (2945.481) of
the Revised Code to expand the list of offenses for which a
criminal or juvenile court may admit videotaped testimony of a
child victim of the offense or order the child victim's
testimony taken outside the courtroom and televised into or
videotaped for replay in the courtroom and to permit the
procedures to be used when the victim is under 13 years of age.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 109.54, 2151.3511, 2907.41, 2937.11,
and 2945.49 be amended and section 2907.41 (2945.481) of
the Revised Code be amended for the purpose of adopting a new
section number as indicated in parentheses to read as follows:
Sec. 109.54. (A) The bureau of criminal identification
and investigation may investigate any criminal activity in this
state that is of statewide or intercounty concern when requested
by local authorities and may aid federal authorities, when
requested, in their investigation of any criminal activity in
this state. The bureau may investigate any criminal activity in
this state involving drug abuse or illegal drug distribution
prohibited under Chapter 3719. or 4729. of the Revised Code. The
superintendent and any agent of the bureau may participate, as
the director of an organized crime task force established under
section 177.02 of the Revised Code or as a member of the
investigatory staff of a task force established under that section of that
nature, in an investigation of
organized criminal activity anywhere within this state under
sections 177.01 to 177.03 of the Revised Code.
(B) The bureau may provide any trained investigative
personnel and specialized equipment that are requested by any
sheriff or chief of police, by the authorized designee of any sheriff or chief
of police, or by any other authorized law enforcement officer to aid and
assist the officer in the investigation and solution of any crime or
the control of any criminal activity occurring within
the officer's jurisdiction. This assistance shall be furnished by the bureau
without disturbing or impairing any of the existing law
enforcement authority or the prerogatives of local law
enforcement authorities or officers. Investigators provided
pursuant to this section, or engaged in an investigation pursuant
to section 109.83 of the Revised Code, may go armed in the same
manner as sheriffs and regularly appointed police officers under
section 2923.12 of the Revised Code.
(C)(1) The bureau shall obtain recording equipment that
can be used to record depositions of the type described in
division (A) of section 2151.3511 and division (A) of section
2907.41 2945.481 of the Revised Code, or testimony of the type
described
in division (D) of section 2151.3511 and division (D) of section
2907.41 2945.481 or in division (C) of section 2937.11 of the
Revised
Code, shall obtain closed circuit equipment that can be used to
televise testimony of the type described in division (C) of
section 2151.3511 and division (C) of section 2907.41 2945.481
or in
division (B) of section 2937.11 of the Revised Code, and shall
provide the equipment, upon request, to any court for use in
recording any deposition or testimony of one of those types
or in televising the
testimony in accordance with the applicable division.
(2) The bureau shall obtain the names, addresses, and
telephone numbers of persons who are experienced in questioning
children in relation to an investigation of a violation of
section 2905.03, 2905.05, 2907.02, 2907.03, 2907.04,
2907.05, 2907.06, 2907.07, 2907.09,
2907.21, 2907.23, 2907.24, 2907.31, 2907.32, 2907.321,
2907.322, or 2907.323, or division (B)(5) of section 2919.22 of
the Revised Code OR AN OFFENSE OF VIOLENCE and shall
maintain a list of those names, addresses, and telephone numbers. The
list shall include a classification of the names,
addresses, and telephone numbers by appellate district. Upon
request, the bureau shall provide any county sheriff, chief of
police, prosecuting attorney, village solicitor, city director of
law, or similar chief legal officer with the name, address, and
telephone number of any person contained in the list.
Sec. 2151.3511. (A)(1) AS USED IN THIS SECTION, "VICTIM" INCLUDES ANY OF
THE
FOLLOWING PERSONS:
(a) A PERSON WHO WAS A VICTIM OF A
VIOLATION IDENTIFIED IN DIVISION
(A)(2) OF THIS SECTION OR AN
ACT THAT WOULD BE AN OFFENSE OF VIOLENCE IF COMMITTED BY AN
ADULT;
(b) A PERSON AGAINST WHOM WAS
DIRECTED ANY CONDUCT THAT CONSTITUTES, OR THAT IS AN ELEMENT OF,
A VIOLATION IDENTIFIED IN DIVISION
(A)(2) OF THIS SECTION OR AN
ACT THAT WOULD BE AN OFFENSE OF VIOLENCE IF COMMITTED BY AN
ADULT.
(2) In any proceeding in juvenile
court involving a complaint in which a child is charged with a
violation of section 2905.03, 2905.05, 2907.02, 2907.03,
2907.04, 2907.05, 2907.06, 2907.07, 2907.09, 2907.21,
2907.23, 2907.24, 2907.31, 2907.32, 2907.321, 2907.322,
or
2907.323, or division (B)(5) of section 2919.22 of the Revised
Code OR AN ACT THAT WOULD BE AN OFFENSE OF VIOLENCE IF COMMITTED BY AN
ADULT and in which an alleged victim OF THE VIOLATION OR ACT was a
child who was under
eleven LESS THAN THIRTEEN years of age when the complaint was
filed, the juvenile
judge, upon motion of an attorney for the prosecution, shall
order that the testimony of the child victim be taken by
deposition. The prosecution also may request that the deposition
be videotaped in accordance with division (A)(2)(3) of this
section. The judge
shall notify the child victim whose deposition is to be
taken, the prosecution, and the attorney for the child who is
charged WITH THE VIOLATION OR ACT of the date, time, and place for
taking the deposition,
which. THE notice shall identify the child victim who is to
be
examined, and SHALL INDICATE whether a request that the
deposition be videotaped
has 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 represented by counsel.
Depositions shall be taken in the manner provided in civil cases,
except that the judge in the proceeding shall preside at the
taking of the deposition and shall rule at that time on any
objections of the prosecution or the attorney for the child
charged WITH THE VIOLATION OR ACT. The prosecution and the attorney
for the child charged WITH THE VIOLATION OR ACT shall have the right,
as at an adjudication hearing, to full
examination and cross-examination of the child victim whose
deposition is to be taken. If a deposition taken under this
division is intended to be offered as evidence in the proceeding,
it shall be filed in the juvenile court in which the action is
pending and is admissible in the manner described in division
(B) of this section. If a deposition of a child victim taken
under this division is admitted as evidence at the proceeding
under division (B) of this section, the child victim shall not be
required to testify in person at the proceeding. However, at any
time before the conclusion of the proceeding, the attorney for
the child charged WITH THE VIOLATION OR ACT may file a motion with the
judge requesting
that another deposition of the child victim be taken because new
evidence material to the defense of the child charged has been
discovered that the attorney for the child charged could not with
reasonable diligence have discovered prior to the taking of the
admitted deposition. Any such motion REQUESTING ANOTHER
DEPOSITION shall be accompanied by
supporting affidavits. Upon the filing of such a THE motion and
affidavits, the court may order that additional testimony of the
child victim relative to the new evidence be taken by another
deposition. If the court orders the taking of another deposition
under this provision, the deposition shall be taken in accordance
with this division; if the admitted deposition was a videotaped
deposition taken in accordance with division (A)(2)(3) of this
section, the new deposition also shall be videotaped in
accordance with that division, and, in other cases, the new
deposition may be videotaped in accordance with that division.
(2)(3) If the prosecution requests that a deposition to be
taken under division (A)(1)(2) of this section be videotaped,
the
juvenile judge shall order that the deposition be videotaped in
accordance with this division. If a juvenile judge issues such
an order TO VIDEO TAPE THE DEPOSITION, the judge shall exclude from the
room in which the
deposition is to be taken every person except the child victim
giving the testimony, the judge, one or more interpreters if
needed, the attorneys for the prosecution and the child who is
charged with the violation OR ACT, any person needed to operate the
equipment to be used, one person chosen by the child victim
giving the deposition, and any person whose presence the judge
determines would contribute to the welfare and well-being of the
child victim giving the deposition. The person chosen by the
child victim shall not himself or herself be a witness in the
proceeding,
and, both before and during the deposition, shall not discuss
the
testimony of the child victim with any other witness in the
proceeding. To the extent feasible, any person operating the
recording equipment shall be restricted to a room adjacent to the
room in which the deposition is being taken, or to a location in
the room in which the deposition is being taken that is behind a
screen or mirror so that any such THE person OPERATING THE
RECORDING EQUIPMENT can see and hear, but
cannot be seen or heard by, the child victim giving the
deposition during the deposition. The child who is charged with
the violation OR ACT shall be permitted to observe and hear the
testimony of the child victim giving the deposition on a monitor
and, shall be provided with an electronic means of immediate
communication with the attorney of the child who is charged with the violation
OR ACT during the testimony, but AND shall
be restricted to a location that is such that FROM WHICH the
child who is
charged with the violation OR ACT cannot be seen
or heard by the child victim giving the deposition, except on a
monitor provided for that purpose. The child victim giving the
deposition shall be provided with a monitor on which the child victim can
observe, while giving testimony, the child who is charged
with the
violation OR ACT. The judge, at the judge's discretion, may preside at
the
deposition by electronic means from outside the room in which the
deposition is to be taken; if the judge presides in such a
manner BY ELECTRONIC MEANS, the judge shall be provided with
monitors on which the judge can
see each person in the room in which the deposition is to be
taken and with an electronic means of communication with each
such person IN THAT ROOM, and each person in the room shall be
provided with a
monitor on which that person can see the judge and WITH an electronic
means of
communication with the judge. A deposition that is videotaped
under this division shall be taken and filed in the manner
described in division (A)(1)(2) of this section and is
admissible in
the manner described in this division and division (B) of this
section, and, if such a videotaped deposition THAT IS
VIDEOTAPED UNDER THIS DIVISION is admitted as
evidence at the proceeding, the child victim shall not be
required to testify in person at the proceeding. No deposition
videotaped under this division shall be admitted as evidence at
any proceeding unless division (B) of this section is satisfied
relative to the deposition and all of the following apply
relative to the recording:
(a) The recording is both aural and visual and is recorded
on film or videotape, or by other electronic means;.
(b) The recording is authenticated under the Rules of
Evidence and the Rules of Criminal Procedure as a fair and
accurate representation of what occurred, and the recording is
not altered other than at the direction and under the supervision
of the judge in the proceeding;.
(c) Each voice on the recording that is material to the
testimony on the recording or the making of the recording, as
determined by the judge, is identified;.
(d) Both the prosecution and the child who is charged with
the violation OR ACT are afforded an opportunity to view the recording
before it is shown in the proceeding.
(B)(1) At any proceeding in relation to which a deposition
was taken under division (A) of this section, the deposition or a
part of it is admissible in evidence upon motion of the
prosecution if the testimony in the deposition or the part to be
admitted is not excluded by the hearsay rule and if the
deposition or the part to be admitted otherwise is admissible
under the Rules of Evidence. For purposes of this division,
testimony is not excluded by the hearsay rule if the testimony is
not hearsay under Evidence Rule 801; if the testimony is within
an exception to the hearsay rule set forth in Evidence Rule 803;
if the child victim who gave the testimony is unavailable as a
witness, as defined in Evidence Rule 804, and the testimony is
admissible under that rule; or if both of the following apply:
(a) The child who is charged with the violation OR ACT had an
opportunity and similar motive at the time of the taking of the
deposition to develop the testimony by direct, cross, or redirect
examination;.
(b) The judge determines that there is reasonable cause to
believe that, if the child victim who gave the testimony in the
deposition were to testify in person at the proceeding, the child
victim would experience serious emotional trauma as a result of
his THE CHILD VICTIM'S participation at the proceeding.
(2) Objections to receiving in evidence a deposition or a
part of it under division (B) of this section shall be made as
provided in civil actions.
(3) The provisions of divisions (A) and (B) of this
section are in addition to any other provisions of the Revised
Code, the Rules of Juvenile Procedure, the Rules of Criminal
Procedure, or the Rules of Evidence that pertain to the taking or
admission of depositions in a juvenile court proceeding, and do
not limit the admissibility under any such OF THOSE other
provisions of
any deposition taken under division (A) of this section or
otherwise taken.
(C) In any proceeding in juvenile court involving a
complaint in which a child is charged with a violation listed in
division (A)(1)(2) of this section OR AN ACT THAT WOULD BE
AN OFFENSE OF VIOLENCE IF COMMITTED BY AN ADULT and in which an alleged
victim OF THE VIOLATION OR OFFENSE
was a child who was under eleven LESS THAN THIRTEEN years of age
when the complaint
was filed, the prosecution may file a motion with the juvenile
judge requesting the judge to order the testimony of the child
victim to be taken in a room other than the room in which the
proceeding is being conducted and be televised, by closed circuit
equipment, into the room in which the proceeding is being
conducted to be viewed by the child who is charged with the
violation OR ACT and any other persons who are not permitted in the
room
in which the testimony is to be taken but who would have been
present during the testimony of the child victim had it been
given in the room in which the proceeding is being conducted.
Except for good cause shown, the prosecution shall file such a
motion UNDER THIS DIVISION at least seven days before the date of the
proceeding.
The juvenile judge may issue such an THE order, upon
THE motion of the
prosecution FILED UNDER THIS DIVISION, if the judge determines that the
child victim is
unavailable to testify in the room in which the proceeding is
being conducted in the physical presence of the child charged
with the violation OR ACT, due to one or more of the reasons set forth
in division (E) of this section. If a juvenile judge issues such
an order OF THAT NATURE, the judge shall exclude from the room in which
the
testimony is to be taken every person except a person described
in division (A)(2)(3) of this section. The judge, at the
judge's
discretion, may preside during the giving of the testimony by
electronic means from outside the room in which it is being
given, subject to the limitations set forth in division
(A)(2)(3) of
this section. To the extent feasible, any person operating the
televising equipment shall be hidden from the sight and hearing
of the child victim giving the testimony, in a manner similar to
that described in division (A)(2)(3) of this section. The
child who
is charged with the violation OR ACT shall be permitted to observe and
hear the testimony of the child victim giving the testimony on a
monitor and, shall be provided with an electronic means of
immediate communication with the attorney of the child who is
charged with the violation OR ACT during the testimony,
but AND shall be restricted to a location that is such
that FROM WHICH the child
who is charged with the violation OR ACT cannot
be seen or heard by the child victim giving the testimony, except
on a monitor provided for that purpose. The child victim giving
the testimony shall be provided with a monitor on which the child victim can
observe, while giving testimony, the child who is charged
with the violation OR ACT.
(D) In any proceeding in juvenile court involving a
complaint in which a child is charged with a violation listed in
division (A)(1)(2) of this section OR AN ACT THAT WOULD BE
AN OFFENSE OF VIOLENCE IF COMMITTED BY AN ADULT and in which an alleged
victim OF THE VIOLATION OR OFFENSE
was a child who was under eleven LESS THAN THIRTEEN years of age
when the complaint
was filed, the prosecution may file a motion with the juvenile
judge requesting the judge to order the testimony of the child
victim to be taken outside of the room in which the proceeding is
being conducted and be recorded for showing in the room in which
the proceeding is being conducted before the judge, the child who
is charged with the violation OR ACT, and any other persons who would
have been present during the testimony of the child victim had it
been given in the room in which the proceeding is being
conducted. Except for good cause shown, the prosecution shall
file such a motion UNDER THIS DIVISION at least seven days
before the date of the
proceeding. The juvenile judge may issue such an THE
order, upon THE
motion of the prosecution FILED UNDER THIS DIVISION, if the judge
determines that the child
victim is unavailable to testify in the room in which the
proceeding is being conducted in the physical presence of the
child charged with the violation OR ACT, due to one or more of the
reasons set forth in division (E) of this section. If a juvenile
judge issues such an order OF THAT NATURE, the judge shall
exclude from the room
in which the testimony is to be taken every person except a
person described in division (A)(2)(3) of this section. To
the
extent feasible, any person operating the recording equipment
shall be hidden from the sight and hearing of the child victim
giving the testimony, in a manner similar to that described in
division (A)(2)(3) of this section. The child who is charged
with
the violation OR ACT shall be permitted to observe and hear the
testimony of the child victim giving the testimony on a monitor
and, shall be provided with an electronic means of immediate
communication with the attorney of the child who is charged with
the violation OR ACT during the testimony, but AND shall
be restricted to a location that is such that FROM WHICH the
child who is
charged with the violation OR ACT cannot be seen
or heard by the child victim giving the testimony, except on a
monitor provided for that purpose. The child victim giving the
testimony shall be provided with a monitor on which the child victim
can observe, while giving testimony, the child who is charged with the
violation OR ACT. No order for the taking of testimony by recording
shall be issued under this division unless the provisions set
forth in divisions (A)(2)(3)(a), (b), (c), and (d) of this
section
apply to the recording of the testimony.
(E) For purposes of divisions (C) and (D) of this section,
a juvenile judge may order the testimony of a child victim to be
taken outside of the room in which a proceeding is being
conducted if the judge determines that the child victim is
unavailable to testify in the room in the physical presence of
the child charged with the violation OR ACT due to one or more of the
following circumstances:
(1) The persistent refusal of the child victim to testify
despite judicial requests to do so;
(2) The inability of the child victim to communicate about
the alleged violation OR OFFENSE because of extreme fear, failure of
memory,
or another similar reason;
(3) The substantial likelihood that the child victim will
suffer serious emotional trauma from so testifying.
(F)(1) If a juvenile judge issues an order pursuant to
division (C) or (D) of this section that requires the testimony
of a child victim in a juvenile court proceeding to be taken
outside of the room in which the proceeding is being conducted,
the order shall specifically identify the child victim to whose
testimony it applies, the order applies only during the testimony
of the specified child victim, and the child victim giving the
testimony shall not be required to testify at the proceeding
other than in accordance with the order. The authority of a
judge to close the taking of a deposition under division
(A)(2)(3)
of this section or a proceeding under division (C) or (D) of this
section is in addition to the authority of a judge to close a
hearing pursuant to section 2151.35 of the Revised Code.
(2) A juvenile judge who makes any determination regarding
the admissibility of a deposition under divisions (A) and (B) of
this section, the videotaping of a deposition under division
(A)(2)(3) of this section, or the taking of testimony outside
of the
room in which a proceeding is being conducted under division (C)
or (D) of this section, shall enter the determination and
findings on the record in the proceeding.
Sec. 2937.11. (A)(1) AS USED IN THIS SECTION, "VICTIM"
INCLUDES ANY PERSON WHO WAS A VICTIM OF A FELONY VIOLATION
IDENTIFIED IN DIVISION (B) OF
THIS SECTION OR A FELONY OFFENSE OF VIOLENCE OR AGAINST WHOM WAS
DIRECTED ANY CONDUCT THAT CONSTITUTES, OR THAT IS AN ELEMENT OF,
A FELONY VIOLATION IDENTIFIED IN DIVISION
(B) OF THIS SECTION OR A FELONY
OFFENSE OF VIOLENCE.
(2) At the preliminary hearing set pursuant
to section 2937.10 of the Revised Code and the Criminal Rules,
the prosecutor may state, but is not required to state, orally
the case for the state and shall then proceed to examine witnesses and
introduce exhibits for the state. The accused and the magistrate
have full right of cross examination, and the accused has the
right of inspection of exhibits prior to their introduction. The
hearing shall be conducted under the rules of evidence prevailing
in criminal trials generally. On motion of either the state or
the accused, witnesses shall be separated and not permitted in
the hearing room except when called to testify.
(B) In a case involving an alleged felony violation of
section 2905.05, 2907.02, 2907.03, 2907.04, 2907.05, 2907.06,
2907.21, 2907.24, 2907.31, 2907.32, 2907.321, 2907.322, or
2907.323, or
division (B)(5) of section 2919.22 of the Revised Code OR AN ALLEGED
FELONY OFFENSE OF VIOLENCE AND in which
an alleged victim of the alleged VIOLATION OR offense was under
eleven LESS THAN THIRTEEN years
of age when the complaint or information was filed, whichever
occurred earlier, upon motion of the prosecution, the testimony
of the child victim at the preliminary hearing may be taken in a
room other than the room in which the preliminary hearing is
being conducted and be televised, by closed circuit equipment,
into the room in which the preliminary hearing is being
conducted, in accordance with division (C) of section 2907.41
2945.481 of
the Revised Code.
(C) In a case involving an alleged felony violation of
section 2907.02, 2907.03, 2907.04, or 2907.05 of the
Revised Code LISTED IN DIVISION (B) OF THIS SECTION OR AN
ALLEGED FELONY OFFENSE OF VIOLENCE AND in which an alleged victim of the
alleged VIOLATION OR offense
was under eleven LESS THAN THIRTEEN years of age when the
complaint or information
was filed, whichever occurred earlier, the court, on written
motion of the prosecutor in the case filed at least three days
prior to the hearing, shall order that all testimony of the child
victim be recorded and preserved on videotape, in addition to
being recorded for purposes of the transcript of the proceeding.
If such an order is issued, it shall specifically identify the
child victim concerning whose testimony it pertains, apply only
during the testimony of the child victim it specifically
identifies, and apply to all testimony of the child victim
presented at the hearing, regardless of whether the child victim
is called as a witness by the prosecution or by the defense.
Sec. 2907.41 2945.481. (A)(1) AS USED IN THIS SECTION,
"VICTIM" INCLUDES ANY PERSON WHO
WAS A VICTIM OF A VIOLATION IDENTIFIED IN DIVISION
(A)(2) OF THIS SECTION OR AN
OFFENSE OF VIOLENCE OR AGAINST WHOM WAS DIRECTED ANY CONDUCT
THAT CONSTITUTES, OR THAT IS AN ELEMENT OF, A VIOLATION
IDENTIFIED IN DIVISION (A)(2)
OF THIS SECTION OR AN OFFENSE OF VIOLENCE.
(2) In any proceeding in the
prosecution
of a charge of a violation of section 2905.03, 2905.05,
2907.02, 2907.03, 2907.04,
2907.05, 2907.06, 2907.07, 2907.09, 2907.21,
2907.23, 2907.24, 2907.31, 2907.32, 2907.321,
2907.322, or 2907.323, or division (B)(5) of section 2919.22 of
the Revised Code OR AN OFFENSE OF VIOLENCE AND in which an alleged
victim OF THE VIOLATION OR OFFENSE was a child who was
under eleven LESS THAN THIRTEEN years of age when the complaint,
indictment, or
information was filed, whichever occurred earlier, the judge of
the court in which the prosecution is being conducted, upon
motion of an attorney for the prosecution, shall order that the
testimony of the child victim be taken by deposition. The
prosecution also may request that the deposition be videotaped in
accordance with division (A)(2)(3) of this section. The judge
shall
notify the child victim whose deposition is to be taken, the
prosecution, and the defense of the date, time, and place for
taking the deposition, which. THE notice shall identify
the child
victim who is to be examined, and SHALL INDICATE whether a
request that the
deposition be videotaped has been made. The defendant shall have
the right to attend the deposition and the right to be
represented by counsel. Depositions shall be taken in the manner
provided in civil cases, except that the judge shall preside at
the taking of the deposition and shall rule at that time on any
objections of the prosecution or the attorney for the defense. The
prosecution and the attorney for the defense shall have the
right, as at trial, to full examination and cross-examination of
the child victim whose deposition is to be taken. If a
deposition taken under this division is intended to be offered as
evidence in the proceeding, it shall be filed in the court in
which the action is pending and is admissible in the manner
described in division (B) of this section. If a deposition of a
child victim taken under this division is admitted as evidence at
the proceeding under division (B) of this section, the child
victim shall not be required to testify in person at the
proceeding. However, at any time before the conclusion of the
proceeding, the attorney for the defense may file a motion with
the judge requesting that another deposition of the child victim
be taken because new evidence material to the defense has been
discovered that the attorney for the defense could not with
reasonable diligence have discovered prior to the taking of the
admitted deposition. Any such A motion FOR ANOTHER
DEPOSITION shall be accompanied by
supporting affidavits. Upon the filing of such a motion FOR ANOTHER
DEPOSITION and
affidavits, the court may order that additional testimony of the
child victim relative to the new evidence be taken by another
deposition. If the court orders the taking of another deposition
under this provision, the deposition shall be taken in accordance
with this division; if the admitted deposition was a videotaped
deposition taken in accordance with division (A)(2)(3) of this
section, the new deposition also shall be videotaped in
accordance with that division and in other cases, the new
deposition may be videotaped in accordance with that division.
(2)(3) If the prosecution requests that a deposition to be
taken under division (A)(1)(2) of this section be videotaped,
the
judge shall order that the deposition be videotaped in accordance
with this division. If a judge issues such an order THAT THE
DEPOSITION BE VIDEOTAPED, the judge
shall exclude from the room in which the deposition is to be
taken every person except the child victim giving the testimony,
the judge, one or more interpreters if needed, the attorneys for
the prosecution and the defense, any person needed to operate the
equipment to be used, one person chosen by the child victim
giving the deposition, and any person whose presence the judge
determines would contribute to the welfare and well-being of the
child victim giving the deposition. The person chosen by the
child victim shall not himself or herself be a witness in the
proceeding
and, both before and during the deposition, shall not discuss
the
testimony of the child victim with any other witness in the
proceeding. To the extent feasible, any person operating the
recording equipment shall be restricted to a room adjacent to the
room in which the deposition is being taken, or to a location in
the room in which the deposition is being taken that is behind a
screen or mirror, so that any such THE person
OPERATING THE RECORDING EQUIPMENT can see and hear, but
cannot be seen or heard by, the child victim giving the
deposition during the deposition. The defendant shall be
permitted to observe and hear the testimony of the child victim
giving the deposition on a monitor and, shall be provided with
an
electronic means of immediate communication with the
defendant's attorney
during the testimony but, AND shall be restricted to a
location that
is such that FROM WHICH the defendant cannot be seen or heard by
the child
victim giving the deposition, except on a monitor provided for that
purpose. The child victim giving the deposition shall be
provided with a monitor on which the child victim can observe,
during the testimony, the defendant. The judge, at the judge's discretion,
may preside at the deposition by electronic means from outside the
room in which the deposition is to be taken; if the judge
presides in such a manner BY ELECTRONIC MEANS, the judge shall
be provided with
monitors on which the judge can see each person in the room in which
the deposition is to be taken and with an electronic means of
communication with each person, and each person in the room
shall be provided with a monitor on which that person can see the
judge and WITH an electronic means of communication with the judge. A
deposition that is videotaped under this division shall be taken
and filed in the manner described in division (A)(1)(2) of
this
section and is admissible in the manner described in this
division and division (B) of this section, and, if such a
videotaped deposition THAT IS VIDEOTAPED UNDER THIS DIVISION is
admitted as evidence at the proceeding,
the child victim shall not be required to testify in person at
the proceeding. No deposition videotaped under this division
shall be admitted as evidence at any proceeding unless division
(B) of this section is satisfied relative to the deposition and
all of the following apply relative to the recording:
(a) The recording is both aural and visual and is recorded
on film or videotape, or by other electronic means;.
(b) The recording is authenticated under the Rules of
Evidence and the Rules of Criminal Procedure as a fair and
accurate representation of what occurred, and the recording is
not altered other than at the direction and under the supervision
of the judge in the proceeding;.
(c) Each voice on the recording that is material to the
testimony on the recording or the making of the recording, as
determined by the judge, is identified;.
(d) Both the prosecution and the defendant are afforded an
opportunity to view the recording before it is shown in the
proceeding.
(B)(1) At any proceeding in a prosecution in relation to
which a deposition was taken under division (A) of this section,
the deposition or a part of it is admissible in evidence upon
motion of the prosecution if the testimony in the deposition or
the part to be admitted is not excluded by the hearsay rule and
if the deposition or the part to be admitted otherwise is
admissible under the Rules of Evidence. For purposes of this
division, testimony is not excluded by the hearsay rule if the
testimony is not hearsay under Evidence Rule 801; if the
testimony is within an exception to the hearsay rule set forth in
Evidence Rule 803; if the child victim who gave the testimony is
unavailable as a witness, as defined in Evidence Rule 804, and
the testimony is admissible under that rule; or if both of the
following apply:
(a) The defendant had an opportunity and similar motive at
the time of the taking of the deposition to develop the testimony
by direct, cross, or redirect examination;.
(b) The judge determines that there is reasonable cause to
believe that, if the child victim who gave the testimony in the
deposition were to testify in person at the proceeding, the child
victim would experience serious emotional trauma as a result of
his THE CHILD VICTIM'S participation at the proceeding.
(2) Objections to receiving in evidence a deposition or a
part of it under division (B) of this section shall be made as
provided in civil actions.
(3) The provisions of divisions (A) and (B) of this
section are in addition to any other provisions of the Revised
Code, the Rules of Criminal Procedure, or the Rules of Evidence
that pertain to the taking or admission of depositions in a
criminal proceeding and do not limit the admissibility under any
such OF THOSE other provisions of any deposition taken under
division (A)
of this section or otherwise taken.
(C) In any proceeding in the prosecution of any charge of
a violation listed in division (A)(1)(2) of this section OR
AN OFFENSE OF VIOLENCE AND in
which an
alleged victim OF THE VIOLATION OR OFFENSE was a child who was under
eleven LESS THAN THIRTEEN years of age when
the complaint, indictment, or information was filed, whichever
occurred earlier, the prosecution may file a motion with the
judge requesting the judge to order the testimony of the child
victim to be taken in a room other than the room in which the
proceeding is being conducted and be televised, by closed circuit
equipment, into the room in which the proceeding is being
conducted to be viewed by the jury, if applicable, the defendant,
and any other persons who are not permitted in the room in which
the testimony is to be taken but who would have been present
during the testimony of the child victim had it been given in the
room in which the proceeding is being conducted. Except for good
cause shown, the prosecution shall file such a motion UNDER THIS
DIVISION at least
seven days before the date of the proceeding. The judge may
issue such an THE order, upon THE motion of the
prosecution FILED UNDER THIS SECTION, if the judge
determines that the child victim is unavailable to testify in the
room in which the proceeding is being conducted in the physical
presence of the defendant, for one or more of the reasons set
forth in division (E) of this section. If a judge issues such an
order OF THAT NATURE, the judge shall exclude from the room in which
the
testimony is to be taken every person except a person described
in division (A)(2)(3) of this section. The judge, at the
judge's
discretion, may preside during the giving of the testimony by
electronic means from outside the room in which it is being
given, subject to the limitations set forth in division
(A)(2)(3) of
this section. To the extent feasible, any person operating the
televising equipment shall be hidden from the sight and hearing
of the child victim giving the testimony, in a manner similar to
that described in division (A)(2)(3) of this section. The
defendant
shall be permitted to observe and hear the testimony of the child
victim giving the testimony on a monitor and, shall be provided
with an electronic means of immediate communication with the defendant's
attorney during the testimony but, AND shall be
restricted to a
location that is such that FROM WHICH the defendant cannot be
seen or heard by the
child victim giving the testimony, except on a monitor provided
for that purpose. The child victim giving the testimony shall be
provided with a monitor on which the child victim can observe,
during the testimony, the defendant.
(D) In any proceeding in the prosecution of any charge of
a violation listed in division (A)(1)(2) of this section OR
AN OFFENSE OF VIOLENCE AND in which an
alleged victim OF THE VIOLATION OR OFFENSE was a child who was under
eleven LESS THAN THIRTEEN years of age when
the complaint, indictment, or information was filed, whichever
occurred earlier, the prosecution may file a motion with the
judge requesting the judge to order the testimony of the child
victim to be taken outside of the room in which the proceeding is
being conducted and be recorded for showing in the room in which
the proceeding is being conducted before the judge, the jury, if
applicable, the defendant, and any other persons who would have
been present during the testimony of the child victim had it been
given in the room in which the proceeding is being conducted. Except for good
cause shown, the prosecution shall file such a
motion UNDER THIS DIVISION at least seven days before the date of the
proceeding. The judge may issue such an THE order, upon
THE motion of the
prosecution FILED UNDER THIS DIVISION, if the judge determines that the
child victim is
unavailable to testify in the room in which the proceeding is
being conducted in the physical presence of the defendant, for
one or more of the reasons set forth in division (E) of this
section. If a judge issues such an order OF THAT NATURE, the
judge shall
exclude from the room in which the testimony is to be taken every
person except a person described in division (A)(2)(3) of this
section. To the extent feasible, any person operating the
recording equipment shall be hidden from the sight and hearing of
the child victim giving the testimony, in a manner similar to
that described in division (A)(2)(3) of this section. The
defendant
shall be permitted to observe and hear the testimony of the child
victim who is giving the testimony on a monitor and, shall be
provided with an electronic means of immediate communication with
the defendant's attorney during the testimony but, AND
shall be
restricted to a location that is such that FROM WHICH the
defendant cannot be seen or
heard by the
child victim giving the testimony, except on a monitor provided
for that purpose. The child victim giving the testimony shall be
provided with a monitor on which the child victim can observe,
during the
testimony, the defendant. No order for the taking of testimony
by recording shall be issued under this division unless the
provisions set forth in divisions (A)(2)(3)(a), (b), (c), and
(d) of
this section apply to the recording of the testimony.
(E) For purposes of divisions (C) and (D) of this section,
a judge may order the testimony of a child victim to be taken
outside the room in which the proceeding is being conducted if
the judge determines that the child victim is unavailable to
testify in the room in the physical presence of the defendant due
to one or more of the following:
(1) The persistent refusal of the child victim to testify
despite judicial requests to do so;
(2) The inability of the child victim to communicate about
the alleged violation OR OFFENSE because of extreme fear, failure of
memory,
or another similar reason;
(3) The substantial likelihood that the child victim will
suffer serious emotional trauma from so testifying.
(F)(1) If a judge issues an order pursuant to division (C)
or (D) of this section that requires the testimony of a child
victim in a criminal proceeding to be taken outside of the room
in which the proceeding is being conducted, the order shall
specifically identify the child victim to whose testimony it
applies, the order applies only during the testimony of the
specified child victim, and the child victim giving the testimony
shall not be required to testify at the proceeding other than in
accordance with the order.
(2) A judge who makes any determination regarding the
admissibility of a deposition under divisions (A) and (B) of this
section, the videotaping of a deposition under division
(A)(2)(3) of
this section, or the taking of testimony outside of the room in
which a proceeding is being conducted under division (C) or (D)
of this section, shall enter the determination and findings on
the record in the proceeding.
Sec. 2945.49. (A)(1) AS USED IN THIS SECTION, "VICTIM"
INCLUDES ANY PERSON WHO WAS A VICTIM OF A FELONY VIOLATION
IDENTIFIED IN DIVISION (B)(1)
OF THIS SECTION OR A FELONY OFFENSE OF VIOLENCE OR AGAINST WHOM
WAS DIRECTED ANY CONDUCT THAT CONSTITUTES, OR THAT IS AN ELEMENT
OF, A FELONY VIOLATION IDENTIFIED IN DIVISION
(B)(1) OF THIS SECTION OR A
FELONY OFFENSE OF VIOLENCE.
(2) Testimony taken at an examination or a
preliminary hearing at which the defendant is present, or at a
former trial of the cause, or taken by deposition at the instance
of the defendant or the state, may be used whenever the witness
giving the testimony dies or cannot for any reason be
produced at the trial or whenever the witness has, since giving that
testimony, become incapacitated to testify. If the former
testimony is contained within an authenticated transcript of the testimony, it
shall be proven by the transcript, otherwise by
other testimony.
(B)(1) At a trial on a charge of a felony violation of
section 2905.05, 2907.02, 2907.03, 2907.04, or 2907.05,
2907.21, 2907.24, 2907.31, 2907.32, 2907.321, 2907.322, 2907.323,
OR 2919.22 of the
Revised Code OR A FELONY OFFENSE OF VIOLENCE AND in which the
AN alleged victim of the alleged VIOLATION OR offense
was under eleven LESS THAN THIRTEEN years of age when the
complaint or information
was filed, whichever occurred earlier, the court, upon motion of
the prosecutor in the case, may admit videotaped preliminary
hearing testimony of the child victim as evidence at the trial,
in lieu of the child victim appearing as a witness and testifying
at the trial, if all of the following apply:
(a) The videotape of the testimony was made at the
preliminary hearing at which probable cause of the violation
charged was found;
(b) The videotape of the testimony was made in accordance
with division (C) of section 2937.11 of the Revised Code;
(c) The testimony in the videotape is not excluded by the
hearsay rule and otherwise is admissible under the Rules of
Evidence. For purposes of this division, testimony is not
excluded by the hearsay rule if the testimony is not hearsay
under Evidence Rule 801, if the testimony is within an exception
to the hearsay rule set forth in Evidence Rule 803, if the child
victim who gave the testimony is unavailable as a witness, as
defined in Evidence Rule 804, and the testimony is admissible
under that rule, or if both of the following apply:
(i) The accused had an opportunity and similar motive at
the preliminary hearing to develop the testimony of the child
victim by direct, cross, or redirect examination;
(ii) The court determines that there is reasonable cause
to believe that if the child victim who gave the testimony at the
preliminary hearing were to testify in person at the trial, the
child victim would experience serious emotional trauma as a
result of the child victim's participation at the trial.
(2) If a child victim of an alleged felony violation of
section 2905.05, 2907.02, 2907.03, 2907.04, 2907.05, 2907.06,
2907.21, 2907.24, 2907.31, 2907.32, 2907.321, 2907.322, or
2907.323, or
division (B)(5) of section 2919.22 of the Revised Code OR AN ALLEGED
FELONY OFFENSE OF VIOLENCE testifies
at the preliminary hearing in the case, IF the testimony of the
child victim at the preliminary hearing was videotaped pursuant
to division (C) of section 2937.11 of the Revised Code, and IF the
defendant in the case files a written objection to the use,
pursuant to division (B)(1) of this section, of the videotaped
testimony at the trial, the court, immediately after the filing
of the objection, shall hold a hearing to determine whether the
videotaped testimony of the child victim should be admissible at
trial under division (B)(1) of this section and, if it is
admissible, whether the child victim should be required to
provide limited additional testimony of the type described in
this division. At the hearing held pursuant to this division,
the defendant and the prosecutor in the case may present any
evidence that is relevant to the issues to be determined at the
hearing, but the child victim shall not be required to testify at
the hearing.
After the hearing, the court shall not require the child
victim to testify at the trial, unless it determines that both of
the following apply:
(a) That the testimony of the child victim at trial is
necessary for one or more of the following reasons:
(i) Evidence that was not available at the time of the
testimony of the child victim at the preliminary hearing has been
discovered;
(ii) The circumstances surrounding the case have changed
sufficiently to necessitate that the child victim testify at the
trial.
(b) That the testimony of the child victim at the trial is
necessary to protect the right of the defendant to a fair trial.
The court shall enter its finding and the reasons for it in
the journal. If the court requires the child victim to testify
at the trial, the testimony of the victim shall be limited to the
new evidence and changed circumstances, and the child victim shall
not otherwise be required to testify at the trial. The required
testimony of the child victim may be given in person or, upon
motion of the prosecution, may be taken by deposition in
accordance with division (A) of section 2907.41 2945.481 of
the Revised
Code provided the deposition is admitted as evidence under
division (B) of that section, may be taken outside of the
courtroom and televised into the courtroom in accordance with
division (C) of that section, or may be taken outside of the
courtroom and recorded for showing in the courtroom in accordance
with division (D) of that section.
(3) If videotaped testimony of a child victim is admitted
at trial in accordance with division (B)(1) of this section, the
child victim shall not be compelled in any way to appear as a
witness at the trial, except as provided in division (B)(2) of
this section.
(C) An order issued pursuant to division (B) of this
section shall specifically identify the child victim concerning
whose testimony it pertains. The order shall apply only during
the testimony of the child victim it specifically identifies.
(D) As used in this section, "prosecutor" has the same
meaning as in section 2935.01 of the Revised Code.
Section 2. That existing sections 109.54, 2151.3511, 2907.41,
2937.11, and 2945.49 of the Revised Code are hereby repealed.
Section 3. Section 109.54 of the Revised Code is presented in
this act as a composite of the section as amended by both Am.
Sub. H.B. 445 and Sub. H.B. 480 of the 121st General Assembly,
with the new language of neither of the acts shown in capital
letters. This is in recognition of the principle stated in
division (B) of section 1.52 of the Revised Code that such
amendments are to be harmonized where not substantively
irreconcilable and constitutes a legislative finding that such
is the resulting version in effect prior to the effective date
of this act.
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