HB 434 – Criminal Procedure
SYNOPSIS: CRIMINAL PROEDURE, VICTIMS OF HUMAN TRAFFICKING, VIDEO DEPOSITIONS AND VIDEO TESTIMONY AUTHORIZED.
HB434
ENROLLED, An Act,
Relating to criminal procedure; to authorize the use of video depositions by certain victims and witnesses of human trafficking under certain conditions; and to authorize the giving of testimony by closed circuit video equipment by certain victims and witnesses of human trafficking under 8 certain conditions.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1. (a) In any criminal prosecution under Article 8 of Chapter 6 of Title 13A, Code of Alabama 1975, the court, upon motion of the district attorney or Attorney General, for good cause shown and after notice to the defendant, may order the taking of a video deposition of a victim of or witness to a crime without regard to the age of the victim or witness.
(b) On any motion for a video deposition of the victim or witness, the court shall consider the nature of the offense, the nature of testimony that may be expected, and the possible effect that the testimony in person at trial may have on the victim or witness, along with any other relevant matters that may be required by rule of the Supreme Court.
(c) During the recording of a video deposition 24 authorized pursuant to this section, the following persons 25 shall be in the room with the victim or witness:
(1) The prosecuting attorney.
(2) The attorney for the defendant.
(3) A person whose presence, in the judgment of the court, contributes to the well-being of the victim or witness and who has dealt with the victim or witness in a therapeutic setting regarding the abuse, excluding staff, employees, or subcontractors, or experts employed or contracted by the prosecution.
(4) Additional persons, other than the defendant, in the discretion of the court.
(d) Examination and cross-examination of the victim or witness shall proceed at the taking of the video deposition as though the victim or witness were testifying personally in the trial of the case. The state shall provide the attorney for the defendant with a copy of the video deposition at a suitable and reasonable time prior to the trial of the case. The court shall enter a protective order prohibiting the attorney for the defendant from copying, reproducing, or distributing the video deposition. Objections to the introduction into the record of the deposition shall be heard by the judge in whose presence the deposition was taken, and unless the court determines that its introduction in lieu of the victim's or witness's actual appearance as a witness at the trial will unfairly prejudice the defendant, the video deposition shall be entered into the record by the state in lieu of the direct testimony of the victim or witness and shall be viewed and heard at the trial of the case.
(e) For the purposes of this section, "video deposition" means the recording of video, with sound, of witness testimony made under oath to be entered in the record in a judicial proceeding.
(f) The Supreme Court may adopt rules of procedure regarding the taking and use of video depositions in criminal proceedings and juvenile cases, as well as transcription of video depositions in appeals of those cases.
(g) All costs associated with the recording of a deposition ordered pursuant to this section shall be paid by the state. The district attorney or Attorney General shall submit all related cost bills to the state Comptroller for approval and payment from the fund entitled Court Costs Not Otherwise Provided For.
(h) All recordings of video depositions ordered pursuant to this section shall be subject to any protective order of the court for the purpose of protecting the privacy of the victim or witness of the offense.
(i) When necessary, the operator of the equipment used to record video depositions may also be in the room during the taking of the deposition and the operator shall make every effort to be unobtrusive.
(j) Only the court, the prosecuting attorney, and the attorney for the defendant may question the victim or witness. During the testimony of the victim or witness, the defendant shall be provided access to view the testimony out of the presence of the victim or witness and shall be allowed to communicate with his or her attorney by any appropriate election method.
(k) In circumstances where a defendant in a proceeding has elected to proceed without counsel, the court may appoint counsel for the defendant and may order counsel to question the victim or witness on behalf of the pro se defendant if the court finds that there is a substantial likelihood that the victim or witness would experience emotional harm if the defendant were allowed to question the victim or witness.
Section 2. (a) In any criminal prosecution under Article 8 of Chapter 6 of Title 13A, Code of Alabama 1975, the court, on motion of the state or the defendant prior to the trial of the case, may order that the testimony of any victim of the crime or witness to the crime shall be viewed and heard at trial by the court and the finder of fact by closed circuit equipment. In ruling on the motion, the court shall take into consideration the nature of the offense, the nature of testimony that may be expected, and the possible effect that the testimony in person at trial may have on the victim or witness, along with any other relevant matters that may be required by Supreme Court rule.
(b) If the court orders that the victim's or witness's testimony in court shall be by closed circuit equipment, the testimony shall be taken outside the courtroom in the judge's chambers or in another suitable location designated by the judge.
(c) Examination and cross-examination of the victim or witness shall proceed as though the victim or witness was testifying in the courtroom. The following individuals may be present in the room with the victim or witness during his or her testimony:
(1) The prosecuting attorney.
(2) The attorney of the defendant.
(3) A person whose presence, in the judgment of the court, contributes to the well-being of the victim or witness and who has dealt with the victim or witness in a therapeutic setting regarding the abuse, excluding staff, employees, or subcontractors, or experts employed or contracted by the prosecution.
(4) In the discretion of the court, any additional person, including the parent or legal guardian, except the defendant.
(d) All costs incurred by the district attorney or Attorney General to make it possible for the court and the trier of the fact to view the testimony of the victim or witness by closed circuit equipment as provided in this section shall be paid by the state. The district attorney or Attorney General shall submit all bills for costs to the state Comptroller for approval and payment from the fund entitled Court Costs Not Otherwise Provided For.
(e) The operators of the closed circuit equipment may also be in the room and shall make every effort to be unobtrusive.
(f) Only the court, the prosecuting attorney, and the attorney for the defendant may question the victim or witness. During the victim's or witness's testimony by closed circuit equipment, the defendant, the judge, and the jury shall remain in the courtroom. The video feed showing the victim or witness shall remain visible to the defendant, the judge, and the jury at all times during the testimony and cross-examination of the victim or witness.
(g) The judge and the defendant shall be allowed to communicate with the attorneys in the room where the victim or witness is testifying by any appropriate electronic method. The party making the motion that the testimony shall be by closed circuit equipment shall make all necessary arrangements regarding the equipment and the operation thereof during the course of the proceeding.
(i) This section may not be interpreted to preclude, for purposes of identification of a defendant, the presence of both the victim or witness and the defendant in the courtroom at the same time. The testimony shall be limited to purposes of identification only.
(j) In circumstances where a defendant in a proceeding has elected to proceed without counsel, the court may appoint counsel for the defendant and may order counsel to question the victim or witness on behalf of the pro se defendant if the court finds that there is a substantial likelihood that the victim or witness would experience emotional harm if the defendant were allowed to question the victim or witness.
Section 3. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.