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Rule 15.5. Out of courtstatement and testimony of child victims or child witnesses of sexual orphysical abuse - Conditions of admissibility.

 

(a) Previouslyrecorded statements. In any case concerning a charge of child abuse orof a sexual offense against a child, the oral statement of a victim or otherwitness younger than 14 years of age which was recorded prior to the filing ofan information or indictment is, upon motion and for good cause shown,admissible as evidence in any court proceeding regarding the offense if all ofthe following conditions are met:

 

(a)(1) the child isavailable to testify and to be cross-examined at trial, either in person or asprovided by law, or the child is unavailable to testify at trial, but thedefendant had a previous opportunity to cross-examine the child concerning therecorded statement, such that the defendant?s rights of confrontation are notviolated;

 

(a)(2) no attorney for either party is in the child's presencewhen the statement is recorded;

 

(a)(3) the recording is visual and aural and is recorded onfilm, videotape or other electronic means;

 

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

 

(a)(5) each voice in the recording is identified;

 

(a)(6) the person conducting the interview of the child in therecording is present at the proceeding and is available to testify and becross-examined by either party;

 

(a)(7) the defendant and the defendant?s attorney are providedan opportunity to view the recording before it is shown to the court or jury;and

 

(a)(8) the court views the recording before it is shown to thejury and determines that it is sufficiently reliable and trustworthy and thatthe interest of justice will best be served by admission of the statement intoevidence.

 

(b) Remotetransmission of testimony. In a criminal case concerning a charge ofchild abuse or of a sexual offense against a child, the court, upon motion of aparty and for good cause shown, may order that the testimony of any victim orother witness 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 party and the testifying child (if any), persons necessary to operate equipment, and a counseloror therapist whose presence contributes to the welfare and emotional well-beingof the child may be in the room during the child?s testimony. A defendant whoconsents to be hidden from the child's view may also be presentunless the court determines that the child will suffer serious emotional ormental strain if required to testify in the defendant's presence, or that thechild's testimony will be inherently unreliable if required to testify in thedefendant's presence. If the court makes that determination, or if thedefendant consents:

 

(b)(1)(A) the defendant may not be present during the child'stestimony;

 

(b)(1)(B) the court shall ensure that the child cannot hear orsee the defendant;

 

(b)(1)(C) the court shall advise the child prior to testifyingthat the defendant is present at the trial and may listen to the child'stestimony;

 

(b)(1)(D) the defendant shall be permitted to observe and hearthe child's testimony, and the court shall ensure that the defendant has ameans of two-way telephonic communication with the

defendant?s attorney during the child's testimony; and

 

(b)(1)(E) the conditions of a normal court proceeding shall beapproximated as nearly as possible.

 

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

 

(b)(3) As much aspossible, persons operating the equipment shall be confined to anadjacent room or behind a screen or mirror so the child cannot see or hearthem.

 

(b)(4) If the defendantis present with the child during the child's testimony, the court may orderthat persons operating the closed circuit equipment film both the child and thedefendant during the child's testimony, so that the jury may view both thechild and the defendant, if that may be arranged without violating otherrequirements of Subsection (b)(1).

 

(c) Remoterecording of testimony. In any criminal case concerning a charge ofchild abuse or of a sexual offense against a child, the court may order, uponmotion of a party and for good cause shown, that the testimony of any victim orother witness younger than 14 years of age be taken outside the courtroom andbe recorded. That testimony is admissible as evidence, for viewing in any courtproceeding regarding the charges if the provisions of Subsection (b) areobserved, in addition to the following provisions:

 

(c)(1) the recording is visual and aural and recorded on film,videotape or by other electronic means;

 

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

 

(c)(3) each voice on the recording is identified; and

 

(c)(4) each party is given an opportunity to view therecording before it is shown in the courtroom.

 

(d) Presence ofchild when recording is used. If the court orders that the testimonyof a child be taken under Subsection (b) or (c), the child may not be requiredto testify in court at any proceeding where the recorded testimony is used.

 

Effective November 1,2008