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Rule 15.5.Out of court statement and testimonyof child victims or child witnesses of sexual or physical abuse - Conditions ofadmissibility.

(a) Previouslyrecorded statements. In any case concerning a charge of child abuse or of asexual offense against a child, the oral statement of a victim or other witnessyounger than 14 years of age which was recorded prior to the filing of aninformation or indictment is, upon motion and for good cause shown, admissibleas evidence in any court proceeding regarding the offense if all of thefollowing conditions are met:

(a)(1) the child is available to testify and tobe cross-examined at trial, either in person or as provided by law, or thechild is unavailable to testify at trial, but the defendant had a previous opportunityto cross-examine the child concerning the recorded statement, such that thedefendant?s rights of confrontation are not violated;

(a)(2) no attorneyfor either party is in the child's presence when the statement is recorded;

(a)(3) the recordingis visual and aural and is recorded on film, videotape or other electronicmeans;

(a)(4) the recordingis accurate and has not been altered;

(a)(5) each voicein the recording is identified;

(a)(6) the personconducting the interview of the child in the recording is present at theproceeding and is available to testify and be cross-examined by either party;

(a)(7) the defendantand the defendant?s attorney are provided an opportunity to view the recordingbefore it is shown to the court or jury; and

(a)(8) the courtviews the recording before it is shown to the jury and determines that it issufficiently reliable and trustworthy and that the interest of justice willbest be served by admission of the statement into evidence.

(b) Remotetransmission of testimony. In a criminal case concerning a charge of childabuse or of a sexual offense against a child, the court, upon motion of a partyand for good cause shown, may order that the testimony of any victim or otherwitness younger than 14 years of age be taken in a room other than the courtroom, and be televised by closed circuit equipment to be viewed by the jury inthe court room. All of the following conditions shall be observed:

(b)(1) Only the judge, attorneys for each partyand the testifying child (if any), persons necessary to operateequipment, and a counselor or therapist whose presence contributes to thewelfare and emotional well-being of the child may be in the room during thechild?s testimony. A defendant who consents to be hiddenfrom the child's view may also be present unless the court determines that thechild will suffer serious emotional or mental strain if required to testify inthe defendant's presence, or that the child's testimony will be inherentlyunreliable if required to testify in the defendant's presence. If the courtmakes that determination, or if the defendant consents:

(b)(1)(A) the defendantmay not be present during the child's testimony;

(b)(1)(B) the courtshall ensure that the child cannot hear or see the defendant;

(b)(1)(C) the courtshall advise the child prior to testifying that the defendant is present at thetrial and may listen to the child's testimony;

(b)(1)(D) the defendantshall be permitted to observe and hear the child's testimony, and the courtshall ensure that the defendant has a means of two-way telephonic communicationwith the defendant?s attorney during the child's testimony; and

(b)(1)(E) the conditionsof a normal court proceeding shall be approximated as nearly as possible.

(b)(2) Only the judgeand an attorney for each party may question the child.

(b)(3) As much as possible, persons operatingthe equipment shall be confined to an adjacent room orbehind a screen or mirror so the child cannot see or hear them.

(b)(4) If the defendant is present with thechild during the child's testimony, the court may order that persons operatingthe closed circuit equipment film both the child and the defendant during thechild's testimony, so that the jury may view both the child and the defendant,if that may be arranged without violating other requirements of Subsection(b)(1).

(c) Remoterecording of testimony. In any criminal case concerning a charge of childabuse or of a sexual offense against a child, the court may order, upon motionof a party and for good cause shown, that the testimony of any victim or otherwitness younger than 14 years of age be taken outside the courtroom and berecorded. That testimony is admissible as evidence, for viewing in any courtproceeding regarding the charges if the provisions of Subsection (b) are observed, in addition to the following provisions:

(c)(1) the recordingis visual and aural and recorded on film, videotape or by other electronicmeans;

(c)(2) the recordingis accurate and is not altered;

(c)(3) each voiceon the recording is identified; and

(c)(4) each partyis given an opportunity to view the recording before it is shown in thecourtroom.

(d) Presenceof child when recording is used. If the court orders that the testimony ofa child be taken under Subsection (b) or (c), the child may not be required totestify in court at any proceeding where the recorded testimony is used.

 

EffectiveNovember 1, 2008