Senate Bill No. 43–Senator Care

 

Prefiled January 30, 2003

____________

 

Referred to Committee on Judiciary

 

SUMMARY—Adopts Uniform Child Witness Testimony by Alternative Methods Act. (BDR 4‑378)

 

FISCAL NOTE:  Effect on Local Government: No.

                           Effect on the State: No.

 

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to witnesses; adopting the Uniform Child Witness Testimony by Alternative Methods Act; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1  Section 1. Chapter 50 of NRS is hereby amended by adding

1-2  thereto the provisions set forth as sections 2 to 14, inclusive, of this

1-3  act.

1-4  Sec. 2.  The provisions of sections 2 to 14, inclusive, of this

1-5  act may be cited as the Uniform Child Witness Testimony by

1-6  Alternative Methods Act.

1-7  Sec. 3.  As used in sections 2 to 14, inclusive, of this act,

1-8  unless the context otherwise requires, the words and terms defined

1-9  in sections 4 to 7, inclusive, of this act have the meanings ascribed

1-10  to them in those sections.

1-11      Sec. 4.  “Alternative method” means a method by which a

1-12  child witness testifies which does not include all of the following:

1-13      1.  Having the child testify in person in an open forum;

1-14      2.  Having the child testify in the presence and full view of the

1-15  finder of fact and presiding officer; and

1-16      3.  Allowing all of the parties to be present, to participate and

1-17  to view and be viewed by the child.

1-18      Sec. 5.  “Child witness” means a child under the age of 13

1-19  years who has been or will be called to testify in a proceeding.

2-1  Sec. 6.  “Criminal proceeding” means:

2-2  1.  A trial or hearing before a court in a prosecution of a

2-3  person charged with violating a criminal law of this state; or

2-4  2.  A delinquency proceeding which is conducted pursuant to

2-5  title 5 of NRS.

2-6  Sec. 7.  “Noncriminal proceeding” means a trial or hearing

2-7  before a court or an administrative agency of this state having

2-8  judicial or quasi-judicial powers, other than a criminal

2-9  proceeding.

2-10      Sec. 8.  1.  The provisions of sections 2 to 14, inclusive, of

2-11  this act apply to the testimony of a child witness in a criminal or

2-12  noncriminal proceeding.

2-13      2.  The provisions of sections 2 to 14, inclusive, of this act do

2-14  not preclude:

2-15      (a) In a noncriminal proceeding, any other procedure

2-16  permitted by law for a child witness to testify; or

2-17      (b) In a delinquency proceeding which is conducted pursuant

2-18  to title 5 of NRS, testimony by a child witness in a closed forum as

2-19  authorized by NRS 62.193.

2-20      Sec. 9. 1.  The presiding officer in a criminal or

2-21  noncriminal proceeding:

2-22      (a) May order a hearing to determine whether to allow a child

2-23  witness to testify by an alternative method.

2-24      (b) For good cause shown, shall order the hearing upon

2-25  motion of a party, a child witness, or a natural person determined

2-26  by the presiding officer to have sufficient standing to act on behalf

2-27  of the child.

2-28      2.  A hearing to determine whether to allow a child witness to

2-29  testify by an alternative method must be conducted on the record

2-30  after reasonable notice to all parties, any nonparty movant, and

2-31  any other person the presiding officer specifies. The child’s

2-32  presence is not required at the hearing unless ordered by the

2-33  presiding officer. In conducting the hearing, the presiding officer

2-34  is not bound by rules of evidence except the rules of privilege.

2-35      Sec. 10. 1.  In a criminal proceeding, the presiding officer

2-36  may allow a child witness to testify by an alternative method only

2-37  in the following situations:

2-38      (a) The child may testify otherwise than in an open forum in

2-39  the presence and full view of the finder of fact if the presiding

2-40  officer finds by clear and convincing evidence that the child would

2-41  suffer serious emotional trauma that would substantially impair

2-42  the child’s ability to communicate with the finder of fact if

2-43  required to testify in the open forum.

2-44      (b) The child may testify other than face-to-face with the

2-45  defendant if the presiding officer finds by clear and convincing

3-1  evidence that the child would suffer serious emotional trauma that

3-2  would substantially impair the child’s ability to communicate with

3-3  the finder of fact if required to be confronted face-to-face by the

3-4  defendant.

3-5  2.  In a noncriminal proceeding, the presiding officer may

3-6  allow a child witness to testify by an alternative method if the

3-7  presiding officer finds by a preponderance of the evidence that

3-8  allowing the child to testify by an alternative method is necessary

3-9  to serve the best interests of the child or enable the child to

3-10  communicate with the finder of fact. In making this finding, the

3-11  presiding officer shall consider:

3-12      (a) The nature of the proceeding;

3-13      (b) The age and maturity of the child;

3-14      (c) The relationship of the child to the parties in the

3-15  proceeding;

3-16      (d) The nature and degree of emotional trauma that the child

3-17  may suffer in testifying; and

3-18      (e) Any other relevant factor.

3-19      Sec. 11.  If the presiding officer determines that a standard

3-20  pursuant to section 10 of this act has been met, the presiding

3-21  officer shall determine whether to allow a child witness to testify

3-22  by an alternative method. In making this determination, the

3-23  presiding officer shall consider:

3-24      1.  Alternative methods reasonably available;

3-25      2.  Available means for protecting the interests of or reducing

3-26  emotional trauma to the child without resorting to an alternative

3-27  method;

3-28      3.  The nature of the case;

3-29      4.  The relative rights of the parties;

3-30      5.  The importance of the proposed testimony of the child;

3-31      6.  The nature and degree of emotional trauma that the child

3-32  may suffer if an alternative method is not used; and

3-33      7.  Any other relevant factor.

3-34      Sec. 12. 1.  An order allowing or disallowing a child witness

3-35  to testify by an alternative method must state the findings of fact

3-36  and conclusions of law that support the presiding officer’s

3-37  determination.

3-38      2.  An order allowing a child witness to testify by an

3-39  alternative method must:

3-40      (a) State the method by which the child is to testify;

3-41      (b) List any natural person or category of natural person

3-42  allowed to be in, or required to be excluded from, the presence of

3-43  the child during the testimony;

3-44      (c) State any special conditions necessary to facilitate a party’s

3-45  right to examine or cross-examine the child;

4-1  (d) State any condition or limitation upon the participation of

4-2  natural persons present during the testimony of the child; and

4-3  (e) State any other condition necessary for taking or

4-4  presenting the testimony.

4-5  3.  The alternative method ordered by the presiding officer

4-6  may be no more restrictive of the rights of the parties than is

4-7  necessary under the circumstances to serve the purposes of the

4-8  order.

4-9  Sec. 13.  An alternative method ordered by the presiding

4-10  officer must permit a full and fair opportunity for examination or

4-11  cross-examination of the child witness by each party.

4-12      Sec. 14.  In applying and construing the Uniform Child

4-13  Witness Testimony by Alternative Methods Act, consideration

4-14  must be given to the need to promote uniformity of the law with

4-15  respect to its subject matter among states that enact it.

 

4-16  H