1 HB233
2 209531-1
3 By Representative Simpson
4 RFD: Judiciary
5 First Read: 02-FEB-21
6 PFD: 02/01/2021
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1 209531-1:n:02/01/2021:CNB/bm LSA2021-343
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8 SYNOPSIS: Under existing law, in a criminal
9 prosecution for a physical or sexual offense there
10 are certain protections offered to victims and
11 witnesses who are under the age of 16 at the time
12 of trial.
13 This bill would provide these additional
14 protections to a victim or a witness who is a
15 protected person.
16 This bill would also define child and
17 protected person.
18 Under existing law, additional protections
19 are available in cases involving a physical
20 offense, sexual offense, or sexual exploitation of
21 a child.
22 This bill would also provide for additional
23 protections in violent offenses.
24 This bill would define physical offense,
25 sexual offense, and violent offense.
26 Under existing law, anatomically correct
27 dolls or mannequins may be used to assist a witness
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1 during testimony when the witness is under the age
2 of 10 at the time of the trial.
3 This bill would allow the use of
4 anatomically correct dolls or mannequins to be used
5 to assist a witness during testimony when the
6 witness is under the age of 12 or a protected
7 person at the time of the offense.
8 Under existing law, out-of-court statements
9 made by a child under the age of 12 may be admitted
10 into evidence as long as certain criteria are met.
11 This bill would also allow out-of-court
12 statements made by a protected person to be
13 admissible as long as certain criteria are met.
14 This bill would also make nonsubstantive,
15 technical revisions to update the existing code
16 language to current style.
17
18 A BILL
19 TO BE ENTITLED
20 AN ACT
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22 Relating to criminal procedure; to amend Sections
23 15-25-1, 15-25-2, 15-25-3, 15-25-5, and 15-25-6, Code of
24 Alabama 1975, to allow a protected person to be offered
25 protections in criminal prosecutions for physical offenses,
26 sexual offenses, and violent offenses; to define a protected
27 person; to define a physical offense, sexual offense, and
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1 violent offense; to allow use of anatomically correct dolls or
2 mannequins during testimony of a child under the age of 12 or
3 a protected person; to amend Sections 15-25-30, 15-25-31,
4 15-25-32, 15-25-34, 15-25-36, 15-25-37, 15-25-38, and
5 15-25-39, Code of Alabama 1975, to allow out-of-court
6 statements to be admissible if the witness is a protected
7 person; to add Section 15-25-7 to the Code of Alabama 1975, to
8 allow leading questions of certain witnesses in a criminal
9 proceeding; to repeal Section 15-25-33, Code of Alabama 1975,
10 relating to expert testimony as to unavailability of a child
11 to testify; to make nonsubstantive, technical revisions to
12 update the existing code language to current style.
13 BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
14 Section 1. Sections 15-25-1, 15-25-2, 15-25-3,
15 15-25-5, and 15-25-6, Code of Alabama 1975, are amended to
16 read as follows:
17 "15-25-1.
18 "(a) This article shall apply to In any criminal
19 prosecution for a physical offense or, a sexual offense
20 wherein, or a violent offense where the alleged victim or
21 witness is a child under the age of 16 years and in any
22 criminal prosecution involving the sexual exploitation of a
23 child under the age of 16, the court may allow leading
24 questions at trial by the prosecution or defense of any victim
25 or witness in a case who is under the age of 10, if the court
26 determines that the allowance of leading questions will
27 further the interests of justice. The court may on motion of
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1 the prosecution or the defense, or on its own motion, limit
2 the scope and extent of any leading questions or a protected
3 person.
4 "(b) For the purposes of this article, a "physical
5 offense, a sexual offense, or a violent offense," is defined
6 to include all of the following crimes:
7 "(1) A sex offense as provided in Section 15-20A-5.
8 "(2) A violent offense as provided in Section
9 12-25-32.
10 "(3) Aggravated child abuse as provided in Section
11 26-15-3.1.
12 "(4) Assault in any degree.
13 "(5) Any offense involving domestic violence, elder
14 abuse, or a violation of a protection order.
15 "(6) Any attempt to commit any of the offenses
16 listed in subdivisions (1) to (5), inclusive.
17 "(c) For the purposes of this article, "child" means
18 a person who is under the age of 16 years at the time of
19 trial.
20 "(d) For the purposes of this article, "protected
21 person" means a person who has a developmental disability
22 attributable to an intellectual disability, autism, cerebral
23 palsy, epilepsy, or other disabling neurological condition
24 that requires training or support similar to that required by
25 a person with an intellectual disability, if any of the
26 following apply:
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1 "(1) The disability originates before the person
2 attains 22 years of age, the disability can be expected to
3 continue indefinitely, and the disability constitutes a
4 substantial handicap to the ability of the person to function
5 in society.
6 "(2) If the disability is attributable to an
7 intellectual disability, the condition is manifested before
8 the person attains 18 years of age, the disability can be
9 expected to continue indefinitely, and the disability
10 constitutes a substantial handicap to the ability of the
11 person to function in society.
12 "(3) The disability results in significant
13 subaverage intellectual functioning with concurrent deficits
14 in adaptive behavior that are manifested during the
15 developmental period.
16 "15-25-2.
17 "(a) In any criminal prosecution referred to in
18 Section 15-25-1, the court, upon motion of the district
19 attorney or Attorney General, for good cause shown and after
20 notice to the defendant, may order the taking of a videotaped
21 video deposition of an alleged victim of or witness to the
22 crime who is under the age of 16 a child or a protected person
23 at the time of the order.
24 "(b) On any motion for a videotaped video deposition
25 of the victim or a witness, the court shall consider the age
26 and maturity of the child, the nature of the offense, the
27 nature of testimony that may be expected, and the possible
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1 effect that the testimony in person at trial may have on the
2 victim or witness, along with any other relevant matters that
3 may be required by Supreme Court rule.
4 "(c) During the taping recording of a videotaped
5 video deposition authorized pursuant to this section, the
6 following persons shall be in the room with the child or the
7 protected person:
8 "(1) The judge.
9 "(2) The prosecuting attorney, the.
10 "(3) The attorney for the defendant, and a.
11 "(4) A person whose presence, in the judgment of the
12 court, contributes to the well-being of the child or protected
13 person and who has dealt with the child or the protected
14 person in a therapeutic setting regarding the abuse.
15 "(5) Additional persons, such as the parent or
16 parents or legal guardian, other than the defendant, may be
17 admitted into the room in the discretion of the court.
18 "(6) A certified facility dog, in the discretion of
19 the court, pursuant to Section 12-21-148.
20 "(d) Examination and cross-examination of the
21 alleged victim or witness shall proceed at the taking of the
22 videotaped video deposition as though the alleged victim or
23 witness were testifying personally in the trial of the case.
24 The state shall provide the attorney for the defendant with
25 reasonable access and means to view and hear a copy of the
26 videotaped video deposition at a suitable and reasonable time
27 prior to the trial of the case. The court shall enter a
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1 protective order prohibiting the attorney for the defendant
2 from copying, reproducing, or distributing the video
3 deposition. Objections to the introduction into the record of
4 such the deposition shall be heard by the judge in whose
5 presence the deposition was taken, and unless the court
6 determines that its introduction in lieu of the victim's or
7 witness's actual appearance as a witness at the trial will
8 unfairly prejudice the defendant, such videotaped the video
9 deposition shall be entered into the record by the state in
10 lieu of the direct testimony of the alleged victim or witness
11 and shall be viewed and heard at the trial of the case.
12 "(e) For the purposes of this section, "videotaped
13 video deposition" means the visual recording on a magnetic
14 tape, together with the associated sound of a video, with
15 sound, of witness testifying testimony made under oath to be
16 entered in the record in a judicial proceeding.
17 "(f) The Supreme Court may adopt rules of procedure
18 regarding the taking and use of videotaped video depositions
19 in criminal proceedings and juvenile cases, as well as for the
20 transcribing of such transcription of video depositions in the
21 event the case is thereafter appealed appeals of those cases.
22 "(g) All costs associated with the videotaping
23 recording of a deposition ordered pursuant to this article
24 shall be paid by the state. The district attorney shall submit
25 all such related cost bills to the state Comptroller for
26 approval and payment from the fund entitled Court Costs Not
27 Otherwise Provided For.
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1 "(h) All videotapes recordings of video depositions
2 ordered pursuant to this article shall be subject to any
3 protective order of the court for the purpose of protecting
4 the privacy of the victim of the offense.
5 "(i) When necessary, the operator of the videotaping
6 equipment used to record video depositions may also be in the
7 room during the taking of the deposition and the operator
8 shall make every effort to be unobtrusive.
9 "(j) Only the court, the prosecuting attorney, and
10 the attorney for the defendant may question the child victim
11 or witness. During the testimony of the child or protected
12 person, the defendant shall be provided access to view the
13 testimony out of the presence of the child or protected person
14 and shall be allowed to communicate with his or her attorney
15 by any appropriate election method.
16 "(k) This section shall not apply when the defendant
17 is an attorney pro se In circumstances where a defendant in a
18 proceeding has elected to proceed without counsel, the court
19 may appoint counsel for the defendant and may order counsel to
20 question a child or a protected person on behalf of the pro se
21 defendant if the court finds that there is substantial
22 likelihood that the child or protected person would experience
23 emotional harm if the defendant were allowed to question the
24 child or protected person.
25 "15-25-3.
26 "(a) In those criminal prosecutions set out in
27 Section 15-25-1, the court, on motion of the state or the
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1 defendant prior to the trial of the case, may order that the
2 testimony of any alleged victim of the crime or a witness
3 thereto to the crime who is under the age of 16 a child or
4 protected person at the time of the order shall be viewed and
5 heard at trial by the court and the finder of fact by closed
6 circuit equipment. In ruling on the motion the court shall
7 take into consideration those matters set out in Section
8 15-25-2 the nature of the offense, the nature of the testimony
9 that may be expected, and the possible effect that the
10 testimony in person at trial may have on the victim or
11 witness, along with any other relevant matters that may be
12 required by Supreme Court rule.
13 "(b) If the court orders that the victim's or
14 witness's testimony in court shall be by closed circuit
15 equipment, the testimony shall be taken outside the courtroom
16 in the judge's chambers or in another suitable location
17 designated by the judge.
18 "(c) Examination and cross-examination of the
19 alleged child victim or witness shall proceed as though he or
20 she were testifying in the courtroom. Present in the room with
21 the child or the protected person during his or her testimony
22 shall be the any of the following:
23 "(1) The prosecuting attorney, the.
24 "(2) The attorney of the defendant, and a.
25 "(3) A person whose presence, in the judgment of the
26 court, contributes to the well-being of the child or protected
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1 person and who has dealt with the child or protected person in
2 a therapeutic setting regarding the abuse.
3 "(4) Additional persons, such as the parent or
4 parents or legal guardian, except the defendant, may be
5 admitted into the room in the discretion of the court.
6 "(5) A certified facility dog, in the discretion of
7 the court, pursuant to Section 12-21-148.
8 "(d) All costs incurred by the district attorney to
9 make it possible for the court and the trier of the fact to
10 view the testimony of the victim or witness by closed circuit
11 equipment as provided in this article shall be paid by the
12 state. The district attorney shall submit all bills for costs
13 to the state Comptroller for approval and payment from the
14 fund entitled Court Costs Not Otherwise Provided For.
15 "(e) Notwithstanding any other provision of law or
16 rule of evidence, a child or protected person victim of a
17 physical offense, sexual offense, or sexual exploitation
18 violent offense, shall be considered a competent witness and
19 shall be allowed to testify without prior qualification in any
20 judicial proceeding. The trier of fact shall be permitted to
21 determine the weight and credibility to be given to the
22 testimony. The court may also allow leading questions of the
23 child witnesses or protected person victim or witness in the
24 interest of justice.
25 "(f) The operators of the closed circuit equipment
26 may also be in the room and shall make every effort to be
27 unobtrusive.
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1 "(g) Only the court, the prosecuting attorney, and
2 the attorney for the defendant may question the child or
3 protected person. During the child's testimony by closed
4 circuit equipment, the defendant, the judge, and the jury
5 shall remain in the courtroom. The video feed showing the
6 child or protected person shall remain visible to the
7 defendant, the judge, and the jury at all times during the
8 testimony and cross-examination of the child victim or witness
9 or protected person.
10 "(h) The judge and the defendant shall be allowed to
11 communicate with the attorneys in the room where the child or
12 protected person is testifying by any appropriate electronic
13 method. The party making the motion that the testimony shall
14 be by closed circuit equipment shall make all necessary
15 arrangements regarding the equipment and the operation thereof
16 during the course of the proceeding.
17 "(i) This section may not be interpreted to
18 preclude, for purposes of identification of a defendant, the
19 presence of both the victim and the defendant in the courtroom
20 at the same time. The testimony shall be limited to purposes
21 of identification only.
22 "(j) The provisions of this section shall not apply
23 if the defendant is not represented by an attorney In
24 circumstances where a defendant in a proceeding has elected to
25 proceed without counsel, the court may appoint counsel for the
26 defendant and may order counsel to question a child or a
27 protected person on behalf of the pro se defendant if the
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1 court finds that there is substantial likelihood that the
2 child or protected person would experience emotional harm if
3 the defendant were allowed to question the child or protected
4 person.
5 "15-25-5.
6 "In any criminal proceeding and juvenile cases
7 wherein where the defendant is alleged to have had unlawful
8 sexual contact or penetration with or on with a child or a
9 protected person