(a) In any criminal prosecution of an offense involving assault, sexual assault or abuse of a child twelve years of age or younger, the court may, upon motion of the attorney for any party, order that the testimony of the child be taken in a room other than the courtroom in the presence and under the supervision of the trial judge hearing the matter and be televised by closed circuit equipment in the courtroom or recorded for later showing before the court. Only the judge, the defendant, the attorneys for the defendant and for the state, persons necessary to operate the equipment and any person who would contribute to the welfare and well-being of the child may be present in the room with the child during his testimony, except that the court may order the defendant excluded from the room or screened from the sight and hearing of the child only if the state proves, by clear and convincing evidence, that the child would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that a compelling need exists to take the testimony of the child outside the physical presence of the defendant in order to insure the reliability of such testimony. If the defendant is excluded from the room or screened from the sight and hearing of the child, the court shall ensure that the defendant is able to observe and hear the testimony of the child, but that the child cannot see or hear the defendant. The defendant shall be able to consult privately with his attorney at all times during the taking of the testimony. The attorneys and the judge may question the child. If the court orders the testimony of a child to be taken under this subsection, the child shall not be required to testify in court at the proceeding for which the testimony was taken.

(b) In any criminal prosecution of an offense involving assault, sexual assault or abuse of a child twelve years of age or younger, the court may, upon motion of the attorney for any party, order that the following procedures be used when the testimony of the child is taken: (1) Persons shall be prohibited from entering and leaving the courtroom during the child's testimony; (2) an adult who is known to the child and with whom the child feels comfortable shall be permitted to sit in close proximity to the child during the child's testimony, provided such person shall not obscure the child from the view of the defendant or the trier of fact; (3) the use of anatomically correct dolls by the child shall be permitted; and (4) the attorneys for the defendant and for the state shall question the child while seated at a table positioned in front of the child, shall remain seated while posing objections and shall ask questions and pose objections in a manner which is not intimidating to the child.

(P.A. 85-587, S. 1; P.A. 89-177, S. 1; P.A. 90-230, S. 94, 101.)

History: P.A. 89-177 amended Subsec. (a) to permit the defendant to be present in the room during the child's testimony, to provide that the court may exclude the defendant from the room or screen him from the sight and hearing of the child only if the state proves by clear and convincing evidence that a compelling need exists to take the testimony of the child outside the physical presence of the defendant, to provide that the requirement that the defendant be able to observe and hear the child and that the child not be able to see or hear the defendant applies “if the defendant is excluded from the room or screened from the sight and hearing of the child”, and to replace provision that the defendant “may consult with his attorney” with “shall be able to consult privately with his attorney at all times during the taking of the testimony”, incorporated Subsec. (b) into Subsec. (a), and added a new Subsec. (b) authorizing the court to order that certain procedures be used when a child testifies in any criminal prosecution of an offense involving an assault, sexual assault or abuse of a child 12 years of age or younger and requiring the question of the competency of the child as a witness to be resolved prior to the time of the trial; P.A. 90-230 made technical change to Subsec. (b).

Not effective at time action initiated; videotaping procedure essentially followed by trial court discussed in connection with federal and state constitutional confrontation clauses. 204 C. 683. Cited. 210 C. 51; Id., 244; Id., 359; 211 C. 185. Judgment of Appellate Court in 36 CA 803 reversed and case remanded to Appellate Court for consideration of trial court's denial of state's motion to videotape pursuant to section. 235 C. 659. In 36 CA 803, 233 C. 902, 42 CA 186, 239 C. 934, judgment of Appellate Court reversed; trial court properly exercised its discretion to deny motion on videotaped testimony. 241 C. 823. It is insufficient, without further inquiry, to determine that because victim cried on the witness stand, victim is not reliable as a witness. 258 C. 42. Section does not specifically authorize the use of a dog, but trial court may exercise its discretion to permit a dog to provide comfort and support to a testifying witness. 321 C. 656.

Cited. 14 CA 333; 19 CA 445; 24 CA 146; 26 CA 674; 36 CA 803; judgment reversed, see 235 C. 659, see also 241 C. 823. Defendant not entitled to have a defense expert conduct a psychological or psychiatric examination of an alleged child victim as prerequisite to trial court's granting of motion filed pursuant to section. 42 CA 186; judgment reversed, see 241 C. 823. Cited. 39 CA 702. In this case, trial court properly permitted the state to videotape testimony of child victim outside the presence of defendant. 51 CA 753. Hearing re videotaping of remainder of the child's testimony outside the presence of defendant re her sexual assault pursuant to 204 C. 683 need not be conducted prior to trial or before testimony begins. 55 CA 717. Plain language of statute permits testimony via videotape of victim who is 12 years of age or younger at time of offense; victim's age at time of videotaping is not controlling under statute. 70 CA 171. Section does not give court specific authority to allow the presence of a dog while a child witness testifies. 150 CA 514; judgment reversed, see 321 C. 656.

Subsec. (a):

State's compelling interest in securing reliable testimony from a child victim may outweigh defendant's right of face-to-face confrontation. 284 C. 597.

Cited. 42 CA 186; judgment reversed, see 241 C. 823. Trial court's finding of compelling need for videotaped testimony upheld. 47 CA 199.