Closed-circuit television; procedure for application and grounds for determination

* § 65.20 Closed-circuit television; procedure for application and\n grounds for determination.\n 1. Prior to the commencement of a criminal proceeding; other than a\ngrand jury proceeding, either party may apply to the court for an order\ndeclaring that a child witness is vulnerable.\n 2. A child witness should be declared vulnerable when the court, in\naccordance with the provisions of this section, determines by clear and\nconvincing evidence that the child witness would suffer serious mental\nor emotional harm that would substantially impair the child witness'\nability to communicate with the finder of fact without the use of live,\ntwo-way closed-circuit television.\n 3. A motion pursuant to subdivision one of this section must be made\nin writing at least eight days before the commencement of trial or other\ncriminal proceeding upon reasonable notice to the other party and with\nan opportunity to be heard.\n 4. The motion papers must state the basis for the motion and must\ncontain sworn allegations of fact which, if true, would support a\ndetermination by the court that the child witness is vulnerable. Such\nallegations may be based upon the personal knowledge of the deponent or\nupon information and belief, provided that, in the latter event, the\nsources of such information and the grounds for such belief are stated.\n 5. The answering papers may admit or deny any of the alleged facts and\nmay, in addition, contain sworn allegations of fact relevant to the\nmotion, including the rights of the defendant, the need to protect the\nchild witness and the integrity of the truth-finding function of the\ntrier of fact.\n 6. Unless all material facts alleged in support of the motion made\npursuant to subdivision one of this section are conceded, the court\nshall, in addition to examining the papers and hearing oral argument,\nconduct an appropriate hearing for the purpose of making findings of\nfact essential to the determination of the motion. Except as provided in\nsubdivision six of this section, it may subpoena or call and examine\nwitnesses, who must either testify under oath or be permitted to give\nunsworn testimony pursuant to subdivision two of section 60.20 and must\nauthorize the attorneys for the parties to do the same.\n 7. Notwithstanding any other provision of law, the child witness who\nis alleged to be vulnerable may not be compelled to testify at such\nhearing or to submit to any psychological or psychiatric examination.\nThe failure of the child witness to testify at such hearing shall not be\na ground for denying a motion made pursuant to subdivision one of this\nsection. Prior statements made by the child witness relating to any\nallegations of conduct constituting an offense defined in article one\nhundred thirty of the penal law or incest as defined in section 255.25,\n255.26 or 255.27 of such law or to any allegation of words or conduct\nconstituting an attempt to prevent, impede or deter the child witness\nfrom cooperating in the investigation or prosecution of the offense\nshall be admissible at such hearing, provided, however, that a\ndeclaration that a child witness is vulnerable may not be based solely\nupon such prior statements.\n 8. (a) Notwithstanding any of the provisions of article forty-five of\nthe civil practice law and rules, any physician, psychologist, nurse or\nsocial worker who has treated a child witness may testify at a hearing\nconducted pursuant to subdivision five of this section concerning the\ntreatment of such child witness as such treatment relates to the issue\npresented at the hearing, provided that any otherwise applicable\nstatutory privileges concerning communications between the child witness\nand such physician, psychologist, nurse or social worker in connection\nwith such treatment shall not be deemed waived by such testimony alone,\nexcept to the limited extent of permitting the court alone to examine in\ncamera reports, records or documents, if any, prepared by such\nphysician, psychologist, nurse or social worker. If upon such\nexamination the court determines that such reports, records or\ndocuments, or any one or portion thereof, contain information material\nand relevant to the issue of whether the child witness is a vulnerable\nchild witness, the court shall disclose such information to both the\nattorney for the defendant and the district attorney.\n (b) At any time after a motion has been made pursuant to subdivision\none of this section, upon the demand of the other party the moving party\nmust furnish the demanding party with a copy of any and all of such\nrecords, reports or other documents in the possession of such other\nparty and must, in addition, supply the court with a copy of all such\nreports, records or other documents which are the subject of the demand.\nAt any time after a demand has been made pursuant to this paragraph, the\nmoving party may demand that property of the same kind or character in\npossession of the party that originally made such demand be furnished to\nthe moving party and, if so furnished, be supplied, in addition, to the\ncourt.\n 9. (a) Prior to the commencement of the hearing conducted pursuant to\nsubdivision six of this section, the district attorney shall, subject to\na protective order, comply with the provisions of subdivision one of\nsection 245.20 of this chapter as they concern any witness whom the\ndistrict attorney intends to call at the hearing and the child witness.\n (b) Before a defendant calls a witness at such hearing, he or she\nmust, subject to a protective order, comply with the provisions of\nsubdivision four of section 245.20 of this chapter as they concern all\nthe witnesses the defendant intends to call at such hearing.\n 10. The court may consider, in determining whether there are factors\nwhich would cause the child witness to suffer serious mental or\nemotional harm, a finding that any one or more of the following\ncircumstances have been established by clear and convincing evidence:\n (a) The manner of the commission of the offense of which the defendant\nis accused was particularly heinous or was characterized by aggravating\ncircumstances.\n (b) The child witness is particularly young or otherwise particularly\nsubject to psychological harm on account of a physical or mental\ncondition which existed before the alleged commission of the offense.\n (c) At the time of the alleged offense, the defendant occupied a\nposition of authority with respect to the child witness.\n (d) The offense or offenses charged were part of an ongoing course of\nconduct committed by the defendant against the child witness over an\nextended period of time.\n (e) A deadly weapon or dangerous instrument was allegedly used during\nthe commission of the crime.\n (f) The defendant has inflicted serious physical injury upon the child\nwitness.\n (g) A threat, express or implied, of physical violence to the child\nwitness or a third person if the child witness were to report the\nincident to any person or communicate information to or cooperate with a\ncourt, grand jury, prosecutor, police officer or peace officer\nconcerning the incident has been made by or on behalf of the defendant.\n (h) A threat, express or implied, of the incarceration of a parent or\nguardian of the child witness, the removal of the child witness from the\nfamily or the dissolution of the family of the child witness if the\nchild witness were to report the incident to any person or communicate\ninformation to or cooperate with a court, grand jury, prosecutor, police\nofficer or peace officer concerning the incident has been made by or on\nbehalf of the defendant.\n (i) A witness other than the child witness has received a threat of\nphysical violence directed at such witness or to a third person by or on\nbehalf of the defendant.\n (j) The defendant, at the time of the inquiry, (i) is living in the\nsame household with the child witness, (ii) has ready access to the\nchild witness or (iii) is providing substantial financial support for\nthe child witness.\n (k) The child witness has previously been the victim of an offense\ndefined in article one hundred thirty of the penal law or incest as\ndefined in section 255.25, 255.26 or 255.27 of such law.\n (l) According to expert testimony, the child witness would be\nparticularly suceptible to psychological harm if required to testify in\nopen court or in the physical presence of the defendant.\n 11. Irrespective of whether a motion was made pursuant to subdivision\none of this section, the court, at the request of either party or on its\nown motion, may decide that a child witness may be vulnerable based on\nits own observations that a child witness who has been called to testify\nat a criminal proceeding is suffering severe mental or emotional harm\nand therefore is physically or mentally unable to testify or to continue\nto testify in open court or in the physical presence of the defendant\nand that the use of live, two-way closed-circuit television is necessary\nto enable the child witness to testify. If the court so decides, it must\nconduct the same hearing that subdivision five of this section requires\nwhen a motion is made pursuant to subdivision one of this section, and\nit must make findings of fact pursuant to subdivisions nine and eleven\nof this section, before determining that the child witness is\nvulnerable.\n 12. In deciding whether a child witness is vulnerable, the court shall\nmake findings of fact which reflect the causal relationship between the\nexistence of any one or more of the factors set forth in subdivision\nnine of this section or other relevant factors which the court finds are\nestablished and the determination that the child witness is vulnerable.\nIf the court is satisfied that the child witness is vulnerable and that,\nunder the facts and circumstances of the particular case, the\ndefendant's constitutional rights to an impartial jury or of\nconfrontation will not be impaired, it may enter an order granting the\napplication for the use of live, two-way closed-circuit television.\n 13. When the court has determined that a child witness is a vulnerable\nchild witness, it shall make a specific finding as to whether placing\nthe defendant and the child witness in the same room during the\ntestimony of the child witness will contribute to the likelihood that\nthe child witness will suffer severe mental or emotional harm. If the\ncourt finds that placing the defendant and the child witness in the same\nroom during the testimony of the child witness will contribute to the\nlikelihood that the child witness will suffer severe mental or emotional\nharm, the order entered pursuant to subdivision eleven of this section\nshall direct that the defendant remain in the courtroom during the\ntestimony of the vulnerable child witness.\n * NB Repealed September 1, 2027\n