Senate Bill No. 43–Senator Care

 

CHAPTER..........

 

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:

 

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

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

act.

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

act may be cited as the Uniform Child Witness Testimony by

Alternative Methods Act.

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

unless the context otherwise requires, the words and terms defined

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

to them in those sections.

    Sec. 4.  “Alternative method” means a method by which a

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

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

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

finder of fact and presiding officer; and

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

to view and be viewed by the child.

    Sec. 5.  “Child witness” means a child under the age of 14

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

    Sec. 6.  “Criminal proceeding” means:

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

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

    2.  A delinquency proceeding which is conducted pursuant to

title 5 of NRS.

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

before a court or an administrative agency of this state having

judicial or quasi-judicial powers, other than a criminal

proceeding.

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

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

noncriminal proceeding.

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

not preclude:

    (a) In a noncriminal proceeding, any other procedure

permitted by law for a child witness to testify; or

    (b) In a delinquency proceeding which is conducted pursuant

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

authorized by NRS 62.193.

    Sec. 9. 1.  The presiding officer in a criminal or

noncriminal proceeding:

    (a) May order a hearing to determine whether to allow a child

witness to testify by an alternative method.

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

motion of a party, a child witness, or a natural person determined

by the presiding officer to have sufficient standing to act on behalf

of the child.

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

testify by an alternative method must be conducted on the record

after reasonable notice to all parties, any nonparty movant, and

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

presence is not required at the hearing unless ordered by the

presiding officer. In conducting the hearing, the presiding officer

is not bound by rules of evidence except the rules of privilege.

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

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

in the following situations:

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

the presence and full view of the finder of fact if the presiding

officer finds by clear and convincing evidence that the child would

suffer serious emotional trauma that would substantially impair

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

required to testify in the open forum.

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

defendant if the presiding officer finds by clear and convincing

evidence that the child would suffer serious emotional trauma that

would substantially impair the child’s ability to communicate with

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

defendant.

    2.  In a noncriminal proceeding, the presiding officer may

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

presiding officer finds by a preponderance of the evidence that

allowing the child to testify by an alternative method is necessary

to serve the best interests of the child or enable the child to

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

presiding officer shall consider:

    (a) The nature of the proceeding;

    (b) The age and maturity of the child;

    (c) The relationship of the child to the parties in the

proceeding;

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

may suffer in testifying; and

    (e) Any other relevant factor.

    Sec. 11.  If the presiding officer determines that a standard

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

officer shall determine whether to allow a child witness to testify

by an alternative method. In making this determination, the

presiding officer shall consider:

    1.  Alternative methods reasonably available;

    2.  Available means for protecting the interests of or reducing

emotional trauma to the child without resorting to an alternative

method;

    3.  The nature of the case;

    4.  The relative rights of the parties;

    5.  The importance of the proposed testimony of the child;

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

may suffer if an alternative method is not used; and

    7.  Any other relevant factor.

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

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

and conclusions of law that support the presiding officer’s

determination.

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

alternative method must:

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

    (b) List any natural person or category of natural person

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

the child during the testimony;

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

right to examine or cross-examine the child;

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

natural persons present during the testimony of the child; and

    (e) State any other condition necessary for taking or

presenting the testimony.

    3.  The alternative method ordered by the presiding officer

may be no more restrictive of the rights of the parties than is

necessary under the circumstances to serve the purposes of the

order.

    Sec. 13.  An alternative method ordered by the presiding

officer must permit a full and fair opportunity for examination or

cross-examination of the child witness by each party.

    Sec. 14.  In applying and construing the Uniform Child

Witness Testimony by Alternative Methods Act, consideration

must be given to the need to promote uniformity of the law with

respect to its subject matter among states that enact it.

 

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