ENTITLED An Act to revise provisions related to courtroom modifications for child witnesses.
Be it enacted by the Legislature of the State of South Dakota:
Section 1. That 26-8A-31 be AMENDED:
26-8A-31. At the taking of testimony pursuant to 26-8A-30, the public must be excluded from the room in which the child is testifying. The court shall determine those persons permitted to be physically present. The court, in its discretion, may permit in the room a person whose presence would contribute to the well‑being of the child or the reduction of apprehension of the child during the testimony. Attorneys for the parties may not be excluded.
If the court makes a specific finding, outside the presence of the jury, that the presence of the defendant, or in a civil case, the presence of the respondent, in the same room as the child, will cause substantial emotional distress to the child and that such distress would impair the ability of the child to communicate, upon such finding the court may exclude the defendant from the room in which the child is testifying. However, if the defendant is excluded, the testimony of the child shall be by two‑way, closed-circuit television such that the testimony of the child is televised in the courtroom and simultaneously thereto, a monitor in the room in which the child is testifying displays a view of the courtroom which view shall include the defendant. The right to have the defendant's image televised in the room in which the child is testifying is a right of the defendant which the defendant may waive. If the defendant is excluded from the room in which the child is testifying, the court must provide for instantaneous communication between the defendant and defense counsel and grant reasonable court recesses during the testimony for consultation between the defendant and defense counsel. The court may communicate by audio system with attorneys outside of the courtroom.
If, on the motion of the prosecuting attorney and outside the presence of the jury, the court makes a specific finding that the child will suffer substantial emotional distress that will impair the ability of the child to communicate due to the presence of the jury, the court may exclude the jury from the room in which the child is testifying. The testimony of the child must be televised at the same time to the courtroom by closed circuit television equipment.
Section 2. That chapter 26-8A be amended with a NEW SECTION:
In any proceeding in which a child under the age of sixteen is describing any act of sexual contact or rape performed with or on the child by another, any act of physical abuse or neglect of the child by another, any act of physical abuse or neglect of another child, any act of human trafficking of the child by another, or any act constituting a crime of violence as defined in 22-1-2 committed against the child or another child, the court may, on its own motion or by motion of an attorney in the proceeding, provide any of the following accommodations to the child:
(1) To be addressed, asked questions, and read the oath or affirmation to testify truthfully in an age-appropriate manner;
(2) To be free of nuisance or harassing tactics in the proceeding;
(3) To have a person who would contribute to the well-being of the child present, clearly visible, and in close proximity, if the person is not a witness in the proceeding;
(4) To have sufficient breaks in the proceedings to allow for the comfort of the child; or
(5) To have a certified therapeutic dog as defined in 23A-24-10, an item used to provide psychological comfort, or both, present in the room with the child
An Act to revise provisions related to courtroom modifications for child witnesses.
I certify that the attached Act originated in the:
Secretary of the Senate
President of the Senate
Attest:
Secretary of the Senate
Speaker of the House
Attest:
Chief Clerk
File No. ____ Chapter No. ______
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Received at this Executive Office this _____ day of _____________,
2023 at ____________M.
By for the Governor
The attached Act is hereby approved this ________ day of ______________, A.D., 2023
ss. Office of the Secretary of State
Filed ____________, 2023 at _________ o'clock __M.
Secretary of State
By Asst. Secretary of State
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