Videotaped examination; definitions, application, order and procedure

§ 190.32 Videotaped examination; definitions, application, order and\n procedure.\n 1. Definitions. As used in this section:\n (a) "Child witness" means a person twelve years old or less whom the\npeople intend to call as witness in a grand jury proceeding to give\nevidence concerning any crime defined in article one hundred thirty or\ntwo hundred sixty or section 255.25, 255.26 or 255.27 of the penal law\nof which the person was a victim.\n (b) "Special witness" means a person whom the people intend to call as\na witness in a grand jury proceeding and who is either:\n (i) Unable to attend and testify in person in the grand jury\nproceeding because the person is either physically ill or incapacitated;\nor\n (ii) More than twelve years old and who is likely to suffer very\nsevere emotional or mental stress if required to testify in person\nconcerning any crime defined in article one hundred thirty or two\nhundred sixty or section 255.25, 255.26 or 255.27 of the penal law to\nwhich the person was a witness or of which the person was a victim.\n (c) "Operator" means a person employed by the district attorney who\noperates the video camera to record the examination of a child witness\nor a special witness.\n 2. In lieu of requiring a witness who is a child witness to appear in\nperson and give evidence in a grand jury proceeding, the district\nattorney may cause the examination of such witness to be videotaped in\naccordance with the provisions of subdivision five of this section.\n 3. Whenever the district attorney has reason to believe that a witness\nis a special witness, he may make an ex parte application to the court\nfor an order authorizing the videotaping of an examination of such\nspecial witness and the subsequent introduction in evidence in a grand\njury proceeding of that videotape in lieu of the live testimony of such\nspecial witness. The application must be in writing, must state the\ngrounds of the application and must contain sworn allegations of fact,\nwhether of the district attorney or another person or persons,\nsupporting such grounds. Such allegations may be based upon personal\nknowledge of the deponent or upon information and belief, provided, that\nin the latter event, the sources of such information and the grounds for\nsuch belief are stated.\n 4. If the court is satisfied that a witness is a special witness, it\nshall issue an order authorizing the videotaping of such special witness\nin accordance with the provisions of subdivision five of this section.\nThe court order and the application and all supporting papers shall not\nbe disclosed to any person except upon further court order.\n 5. The videotaping of an examination either of a child witness or a\nspecial witness shall proceed as follows:\n (a) An examination of a child witness or a special witness which is to\nbe videotaped pursuant to this section may be conducted anywhere and at\nany time provided that the operator begins the videotape by recording a\nstatement by the district attorney of the date, time and place of the\nexamination. In addition, the district attorney shall identify himself,\nthe operator and all other persons present.\n (b) An accurate clock with a sweep second hand shall be placed next to\nor behind the witness in such position as to enable the operator to\nvideotape the clock and the witness together during the entire\nexamination. In the alternative, a date and time generator shall be used\nto superimpose the day, hour, minute and second over the video portion\nof the recording during the entire examination.\n (c) A social worker, rape crisis counselor, psychologist or other\nprofessional providing emotional support to a child witness or to a\nspecial witness, as defined in subparagraph (ii) of paragraph (b) of\nsubdivision one of this section, or any of those persons enumerated in\nparagraphs (a), (b), (c), (d), (e), (f) and (g) of subdivision three of\nsection 190.25 may be present during the videotaping except that a\ndoctor, nurse or other medical assistant also may be present if required\nby the attendant circumstances. Each person present, except the witness,\nmust, if he has not previously taken a constitutional oath of office or\nan oath that he will keep secret all matters before a grand jury, must\ntake an oath on the record that he will keep secret the videotaped\nexamination.\n (d) The district attorney shall state for the record the name of the\nwitness, and the caption and the grand jury number, if any, of the case.\nIf the witness to be examined is a child witness, the date of the\nwitness' birth must be recorded. If the witness to be examined is a\nspecial witness, the date of the order authorizing the videotaped\nexamination and the name of the justice who issued the order shall be\nrecorded.\n (e) If the witness will give sworn testimony, the administration of\nthe oath must be recorded. If the witness will give unsworn testimony, a\nstatement that the testimony is not under oath must be recorded.\n (f) If the examination requires the use of more than one tape, the\noperator shall record a statement of the district attorney at the end of\neach tape declaring that such tape has ended and referring to the\nsucceeding tape. At the beginning of such succeeding tape, the operator\nshall record a statement of the district attorney identifying himself,\nthe witness being examined and the number of tapes which have been used\nto record the examination of such witness. At the conclusion of the\nexamination the operator shall record a statement of the district\nattorney certifying that the recording has been completed, the number of\ntapes on which the recording has been made and that such tapes\nconstitute a complete and accurate record of the examination of the\nwitness.\n (g) A videotape of an examination conducted pursuant to this section\nshall not be edited unless upon further order of the court.\n 6. When the videotape is introduced in evidence and played in the\ngrand jury, the grand jury stenographer shall record the examination in\nthe same manner as if the witness had testified in person.\n 7. Custody of the videotape shall be maintained in the same manner as\ncustody of the grand jury minutes.\n