Bill S1276-2013

Authorizes the use of closed-circuit television for the taking of testimony from a witness who is determined to be adverse

Authorizes the use of closed-circuit television for the taking of testimony from a witness who is determined to be adverse; a witness is adverse when he or she is called to testify in a criminal proceeding against a defendant, where such witness has previously had a restraining order issued against such defendant.

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  • Jan 8, 2014: REFERRED TO CODES
  • Jan 9, 2013: REFERRED TO CODES

Memo

BILL NUMBER:S1276

TITLE OF BILL: An act to amend the criminal procedure law, in relation to authorizing the use of closed-circuit televisions for witnesses who are determined to be adverse due to domestic violence disputes

PURPOSE: To permit the use of closed circuit television for testimony of victims of alleged domestic violence, where the court determines that the witness will suffer severe mental anguish or emotional harm if required to testify in person.

SUMMARY OF PROVISIONS: Amends the Criminal Procedure Law by adding a new Article 66 to permit the use of closed circuit television for testimony of victims of alleged domestic violence. Closed-circuit television will be used to permit an "adverse witness" to provide testimony.

A witness shall be declared adverse when the court determines that the witness will suffer severe mental or emotional harm if required to testify at a criminal proceeding without the use of live, two-way closed circuit television, or where the presence of such witness in the court will cause one or more of the parties involved to become unruly and unmanageable.

JUSTIFICATION: Domestic violence is the leading cause of injury to women, resulting in more injuries than auto accidents, muggings and rapes combined. Over 20% of hospital emergency room visits by women are due to domestic violence. Domestic violence accounts for 52% of adult female homicide victims and one third of homicides among teenage girls. Every year 2,000 to 4,000 women are killed as a result of domestic violence and 3 to 6 million are injured.

It often takes great courage for a victim of domestic violence to report the crime and to press charges against their abuser. This legislation will provide protection for victims of domestic violence from further emotional and mental abuse by allowing them to testify in a court hearing via a closed circuit television.

LEGISLATIVE HISTORY: 2011-12: S.2411 - Referred to Codes 2009-10: S.1142 - Referred to Codes 2007-08: S.2929 - Referred to Codes 2005-06: S.1341 - Referred to Codes 2003-04: S.2239 - Referred to Codes 2001-02: S.6376 - Referred to Codes

FISCAL IMPLICATIONS: To be determined.

EFFECTIVE DATE: Immediately.


Text

STATE OF NEW YORK ________________________________________________________________________ 1276 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________
Introduced by Sens. PERKINS, DIAZ, HASSELL-THOMPSON, KRUEGER, SAVINO, SERRANO -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the criminal procedure law, in relation to authorizing the use of closed-circuit televisions for witnesses who are determined to be adverse due to domestic violence disputes THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The criminal procedure law is amended by adding a new arti- cle 66 to read as follows: ARTICLE 66 USE OF CLOSED-CIRCUIT TELEVISION FOR CERTAIN DOMESTIC VIOLENCE CASES SECTION 66.00 DEFINITIONS. 66.10 CLOSED-CIRCUIT TELEVISION; GENERAL RULE; DECLARATION OF ADVERSITY. 66.20 CLOSED-CIRCUIT TELEVISION; PROCEDURE FOR APPLICATION AND GROUNDS FOR DETERMINATION. 66.30 CLOSED-CIRCUIT TELEVISION; SPECIAL TESTIMONIAL PROCEDURES. S 66.00 DEFINITIONS. AS USED IN THIS ARTICLE: 1. "ADVERSE WITNESS" MEANS A PERSON WHO WILL BE CALLED TO TESTIFY IN A CRIMINAL PROCEEDING, OTHER THAN A GRAND JURY PROCEEDING, CONCERNING AN OFFENSE DEFINED IN TITLE G, H, I OR J OF THE PENAL LAW WHICH IS THE SUBJECT OF SUCH CRIMINAL PROCEEDING WHERE SUCH WITNESS HAS HAD A RESTRAINING ORDER ISSUED AGAINST THE ALLEGED DEFENDANT. 2. "TESTIMONIAL ROOM" MEANS ANY ROOM, SEPARATE AND APART FROM THE COURTROOM, WHICH IS FURNISHED COMFORTABLY AND LESS FORMALLY THAN A
COURTROOM AND FROM WHICH THE TESTIMONY OF AN ADVERSE WITNESS CAN BE TRANSMITTED TO THE COURTROOM BY MEANS OF LIVE, TWO-WAY CLOSED-CIRCUIT TELEVISION. 3. "LIVE, TWO-WAY CLOSED-CIRCUIT TELEVISION" MEANS A SIMULTANEOUS TRANSMISSION, BY CLOSED-CIRCUIT TELEVISION, OR OTHER ELECTRONIC MEANS, BETWEEN THE COURTROOM AND THE TESTIMONIAL ROOM IN ACCORDANCE WITH THE PROVISIONS OF SECTION 66.30 OF THIS ARTICLE. 4. "OPERATOR" MEANS THE INDIVIDUAL AUTHORIZED BY THE COURT TO OPERATE THE CLOSED-CIRCUIT TELEVISION EQUIPMENT USED IN ACCORDANCE WITH THE PROVISIONS OF THIS ARTICLE. S 66.10 CLOSED-CIRCUIT TELEVISION; GENERAL RULE; DECLARATION OF ADVER- SITY. 1. A WITNESS SHALL BE DECLARED ADVERSE WHEN THE COURT, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 66.20 OF THIS ARTICLE, DETERMINES BY CLEAR AND CONVINCING EVIDENCE THAT IT IS LIKELY, AS A RESULT OF EXTRAOR- DINARY CIRCUMSTANCES, THAT: (A) SUCH WITNESS WILL SUFFER SEVERE MENTAL OR EMOTIONAL HARM IF REQUIRED TO TESTIFY AT A CRIMINAL PROCEEDING WITHOUT THE USE OF LIVE, TWO-WAY CLOSED-CIRCUIT TELEVISION AND THAT THE USE OF SUCH LIVE, TWO-WAY CLOSED-CIRCUIT TELEVISION WILL HELP PREVENT, OR DIMINISH THE LIKELIHOOD OR EXTENT OF, SUCH HARM; OR (B) THE PRESENCE OF SUCH WITNESS IN THE COURT WILL CAUSE ONE OR MORE OF THE PARTIES INVOLVED TO BECOME UNRULY AND UNMANAGEABLE. 2. WHEN THE COURT DECLARES A WITNESS TO BE ADVERSE, IT SHALL, EXCEPT AS PROVIDED IN SUBDIVISION FOUR OF SECTION 66.30 OF THIS ARTICLE, AUTHORIZE THE TAKING OF THE TESTIMONY OF THE ADVERSE WITNESS FROM THE TESTIMONIAL ROOM BY MEANS OF LIVE, TWO-WAY CLOSED-CIRCUIT TELEVISION. UNDER NO CIRCUMSTANCES SHALL THE PROVISIONS OF THIS ARTICLE BE CONSTRUED TO AUTHORIZE A CLOSED-CIRCUIT TELEVISION SYSTEM BY WHICH EVENTS IN THE COURTROOM ARE NOT TRANSMITTED TO THE TESTIMONIAL ROOM DURING THE TESTI- MONY OF THE ADVERSE WITNESS. 3. NOTHING HEREIN SHALL BE CONSTRUED TO PRECLUDE THE COURT FROM EXER- CISING ITS POWER TO CLOSE THE COURTROOM OR FROM EXERCISING ANY AUTHORITY IT OTHERWISE MAY HAVE TO PROTECT THE WELL-BEING OF A WITNESS AND THE RIGHTS OF THE DEFENDANT. S 66.20 CLOSED-CIRCUIT TELEVISION; PROCEDURE FOR APPLICATION AND GROUNDS FOR DETERMINATION. 1. PRIOR TO THE COMMENCEMENT OF A CRIMINAL PROCEEDING; OTHER THAN A GRAND JURY PROCEEDING, EITHER PARTY MAY APPLY TO THE COURT FOR AN ORDER DECLARING THAT A WITNESS IS ADVERSE. 2. A MOTION PURSUANT TO SUBDIVISION ONE OF THIS SECTION MUST BE MADE IN WRITING AT LEAST EIGHT DAYS BEFORE THE COMMENCEMENT OF TRIAL OR OTHER CRIMINAL PROCEEDING UPON REASONABLE NOTICE TO THE OTHER PARTY AND WITH AN OPPORTUNITY TO BE HEARD. 3. THE MOTION PAPERS MUST STATE THE BASIS FOR THE MOTION AND MUST CONTAIN SWORN ALLEGATIONS OF FACT WHICH, IF TRUE, WOULD SUPPORT A DETER- MINATION BY THE COURT THAT THE WITNESS IS ADVERSE. SUCH ALLEGATIONS MAY BE BASED UPON THE PERSONAL KNOWLEDGE OF THE DEPONENT OR UPON INFORMATION AND BELIEF, PROVIDED THAT, IN THE LATTER EVENT, THE SOURCES OF SUCH INFORMATION AND THE GROUNDS FOR SUCH BELIEF ARE STATED. 4. THE ANSWERING PAPERS MAY ADMIT OR DENY ANY OF THE ALLEGED FACTS AND MAY, IN ADDITION, CONTAIN SWORN ALLEGATIONS OF FACT RELEVANT TO THE MOTION, INCLUDING THE RIGHTS OF THE DEFENDANT, THE NEED TO PROTECT THE WITNESS AND THE INTEGRITY OF THE TRUTH-FINDING FUNCTION OF THE TRIER OF FACT.
5. UNLESS ALL MATERIAL FACTS ALLEGED IN SUPPORT OF THE MOTION MADE PURSUANT TO SUBDIVISION ONE OF THIS SECTION ARE CONCEDED, THE COURT SHALL, IN ADDITION TO EXAMINING THE PAPERS AND HEARING ORAL ARGUMENT, CONDUCT AN APPROPRIATE HEARING FOR THE PURPOSE OF MAKING FINDINGS OF FACT ESSENTIAL TO THE DETERMINATION OF THE MOTION. EXCEPT AS PROVIDED IN SUBDIVISION SIX OF THIS SECTION, IT MAY SUBPOENA OR CALL AND EXAMINE WITNESSES, WHO MUST TESTIFY UNDER OATH. 6. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE WITNESS WHO IS ALLEGED TO BE ADVERSE MAY NOT BE COMPELLED TO TESTIFY AT SUCH HEARING OR TO SUBMIT TO ANY PSYCHOLOGICAL OR PSYCHIATRIC EXAMINATION. THE FAILURE OF THE WITNESS TO TESTIFY AT SUCH HEARING SHALL NOT BE A GROUND FOR DENYING A MOTION MADE PURSUANT TO SUBDIVISION ONE OF THIS SECTION. PRIOR STATEMENTS MADE BY THE WITNESS RELATING TO ANY ALLEGATIONS OF CONDUCT CONSTITUTING AN OFFENSE DEFINED IN TITLE G, H, I OR J OF THE PENAL LAW OR TO ANY ALLEGATION OF WORDS OR CONDUCT CONSTITUTING AN ATTEMPT TO PREVENT, IMPEDE OR DETER THE WITNESS FROM COOPERATING IN THE INVESTI- GATION OR PROSECUTION OF THE OFFENSE SHALL BE ADMISSIBLE AT SUCH HEAR- ING, PROVIDED, HOWEVER, THAT A DECLARATION THAT A WITNESS IS ADVERSE MAY NOT BE BASED SOLELY UPON SUCH PRIOR STATEMENTS. 7. (A) NOTWITHSTANDING ANY OF THE PROVISIONS OF ARTICLE FORTY-FIVE OF THE CIVIL PRACTICE LAW AND RULES, ANY PHYSICIAN, PSYCHOLOGIST, NURSE, OR POLICE OFFICER WHO HAS HAD AN ENCOUNTER WITH THE WITNESS MAY TESTIFY AT A HEARING CONDUCTED PURSUANT TO SUBDIVISION FIVE OF THIS SECTION CONCERNING THE EVENTS SURROUNDING THE ENCOUNTER WITH SUCH WITNESS AS SUCH ENCOUNTER RELATES TO THE ISSUE PRESENTED AT THE HEARING, PROVIDED THAT ANY OTHERWISE APPLICABLE STATUTORY PRIVILEGES CONCERNING COMMUNI- CATIONS BETWEEN THE WITNESS AND SUCH PHYSICIAN, PSYCHOLOGIST, NURSE OR POLICE OFFICER IN CONNECTION WITH SUCH ENCOUNTER SHALL NOT BE DEEMED WAIVED BY SUCH TESTIMONY ALONE, EXCEPT TO THE LIMITED EXTENT OF PERMIT- TING THE COURT ALONE TO EXAMINE IN CAMERA REPORTS, RECORDS OR DOCUMENTS, IF ANY, PREPARED BY SUCH PHYSICIAN, PSYCHOLOGIST, NURSE OR POLICE OFFI- CER. IF UPON SUCH EXAMINATION THE COURT DETERMINES THAT SUCH REPORTS, RECORDS OR DOCUMENTS, OR ANY ONE OR PORTION THEREOF, CONTAIN INFORMATION MATERIAL AND RELEVANT TO THE ISSUE OF WHETHER THE WITNESS IS AN ADVERSE WITNESS, THE COURT SHALL DISCLOSE SUCH INFORMATION TO BOTH THE ATTORNEY FOR THE DEFENDANT AND THE DISTRICT ATTORNEY. (B) AT ANY TIME AFTER A MOTION HAS BEEN MADE PURSUANT TO SUBDIVISION ONE OF THIS SECTION, UPON THE DEMAND OF THE OTHER PARTY THE MOVING PARTY MUST FURNISH THE DEMANDING PARTY WITH A COPY OF ANY AND ALL OF SUCH RECORDS, REPORTS OR OTHER DOCUMENTS IN THE POSSESSION OF SUCH OTHER PARTY AND MUST, IN ADDITION, SUPPLY THE COURT WITH A COPY OF ALL SUCH REPORTS, RECORDS OR OTHER DOCUMENTS WHICH ARE THE SUBJECT OF THE DEMAND. AT ANY TIME AFTER A DEMAND HAS BEEN MADE PURSUANT TO THIS PARAGRAPH, THE MOVING PARTY MAY DEMAND THAT PROPERTY OF THE SAME KIND OR CHARACTER IN POSSESSION OF THE PARTY THAT ORIGINALLY MADE SUCH DEMAND BE FURNISHED TO THE MOVING PARTY AND, IF SO FURNISHED, BE SUPPLIED, IN ADDITION, TO THE COURT. 8. (A) PRIOR TO THE COMMENCEMENT OF THE HEARING CONDUCTED PURSUANT TO SUBDIVISION FIVE OF THIS SECTION, THE DISTRICT ATTORNEY SHALL, SUBJECT TO A PROTECTIVE ORDER, COMPLY WITH THE PROVISIONS OF SUBDIVISION ONE OF SECTION 240.45 OF THIS CHAPTER AS THEY CONCERN ANY WITNESS WHOM THE DISTRICT ATTORNEY INTENDS TO CALL AT THE HEARING AND THE ADVERSE WITNESS. (B) BEFORE A DEFENDANT CALLS A WITNESS AT SUCH HEARING, HE OR SHE MUST, SUBJECT TO A PROTECTIVE ORDER, COMPLY WITH THE PROVISIONS OF
SUBDIVISION TWO OF SECTION 240.45 OF THIS CHAPTER AS THEY CONCERN ALL THE WITNESSES THE DEFENDANT INTENDS TO CALL AT SUCH HEARING. 9. THE COURT MAY CONSIDER, IN DETERMINING WHETHER THERE ARE SUCH EXTRAORDINARY CIRCUMSTANCES AS WOULD CAUSE THE WITNESS TO SUFFER SEVERE MENTAL OR EMOTIONAL HARM, A FINDING THAT ANY ONE OR MORE OF THE FOLLOW- ING FACTORS HAVE BEEN ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE: (A) THE MANNER OF THE COMMISSION OF THE OFFENSE OF WHICH THE DEFENDANT IS ACCUSED WAS PARTICULARLY HEINOUS OR WAS CHARACTERIZED BY AGGRAVATING CIRCUMSTANCES. (B) THE WITNESS IS PARTICULARLY SUBJECT TO PSYCHOLOGICAL HARM ON ACCOUNT OF A PHYSICAL OR MENTAL CONDITION WHICH EXISTED BEFORE THE ALLEGED COMMISSION OF THE OFFENSE. (C) AT THE TIME OF THE ALLEGED OFFENSE, THE DEFENDANT OCCUPIED A POSI- TION OF AUTHORITY WITH RESPECT TO THE WITNESS. (D) THE OFFENSE OR OFFENSES CHARGED WERE PART OF AN ONGOING COURSE OF CONDUCT COMMITTED BY THE DEFENDANT AGAINST THE WITNESS OVER AN EXTENDED PERIOD OF TIME. (E) A DEADLY WEAPON OR DANGEROUS INSTRUMENT WAS ALLEGEDLY USED DURING THE COMMISSION OF THE CRIME. (F) THE DEFENDANT HAS INFLICTED SERIOUS PHYSICAL INJURY UPON THE WITNESS. (G) A THREAT, EXPRESS OR IMPLIED, OF PHYSICAL VIOLENCE TO THE CHILD WITNESS OR A THIRD PERSON IF THE WITNESS WERE TO REPORT THE INCIDENT TO ANY PERSON OR COMMUNICATE INFORMATION TO OR COOPERATE WITH A COURT, GRAND JURY, PROSECUTOR, POLICE OFFICER OR PEACE OFFICER CONCERNING THE INCIDENT HAS BEEN MADE BY OR ON BEHALF OF THE DEFENDANT. (H) A WITNESS OTHER THAN THE WITNESS HAS RECEIVED A THREAT OF PHYSICAL VIOLENCE DIRECTED AT SUCH WITNESS OR TO A THIRD PERSON BY OR ON BEHALF OF THE DEFENDANT. (I) THE DEFENDANT, AT THE TIME OF THE INQUIRY, (I) IS LIVING IN THE SAME HOUSEHOLD WITH THE WITNESS, (II) HAS READY ACCESS TO THE WITNESS OR (III) IS PROVIDING SUBSTANTIAL FINANCIAL SUPPORT FOR THE WITNESS. (J) ACCORDING TO EXPERT TESTIMONY, THE WITNESS WOULD BE PARTICULARLY SUSCEPTIBLE TO PSYCHOLOGICAL HARM IF REQUIRED TO TESTIFY IN OPEN COURT OR IN THE PHYSICAL PRESENCE OF THE DEFENDANT. 10. IRRESPECTIVE OF WHETHER A MOTION WAS MADE PURSUANT TO SUBDIVISION ONE OF THIS SECTION, THE COURT, AT THE REQUEST OF EITHER PARTY OR ON ITS OWN MOTION, MAY DECIDE THAT A WITNESS MAY BE ADVERSE BASED ON ITS OWN OBSERVATIONS THAT A WITNESS WHO HAS BEEN CALLED TO TESTIFY AT A CRIMINAL PROCEEDING IS SUFFERING SEVERE MENTAL OR EMOTIONAL HARM AND THEREFORE IS PHYSICALLY OR MENTALLY UNABLE TO TESTIFY OR TO CONTINUE TO TESTIFY IN OPEN COURT OR IN THE PHYSICAL PRESENCE OF THE DEFENDANT AND THAT THE USE OF LIVE, TWO-WAY CLOSED-CIRCUIT TELEVISION IS NECESSARY TO ENABLE THE WITNESS TO TESTIFY. IF THE COURT SO DECIDES, IT MUST CONDUCT THE SAME HEARING THAT SUBDIVISION FIVE OF THIS SECTION REQUIRES WHEN A MOTION IS MADE PURSUANT TO SUBDIVISION ONE OF THIS SECTION, AND IT MUST MAKE FIND- INGS OF FACT PURSUANT TO SUBDIVISIONS NINE AND ELEVEN OF THIS SECTION, BEFORE DETERMINING THAT THE WITNESS IS ADVERSE. 11. IN DECIDING WHETHER A WITNESS IS ADVERSE, THE COURT SHALL MAKE FINDINGS OF FACT WHICH REFLECT THE CAUSAL RELATIONSHIP BETWEEN THE EXISTENCE OF ANY ONE OR MORE OF THE FACTORS SET FORTH IN SUBDIVISION NINE OF THIS SECTION OR OTHER RELEVANT FACTORS WHICH THE COURT FINDS ARE ESTABLISHED AND THE DETERMINATION THAT THE WITNESS IS ADVERSE. IF THE COURT IS SATISFIED THAT THE WITNESS IS ADVERSE AND THAT, UNDER THE FACTS AND CIRCUMSTANCES OF THE PARTICULAR CASE, THE DEFENDANT'S CONSTITUTIONAL RIGHTS TO AN IMPARTIAL JURY OR OF CONFRONTATION WILL NOT BE IMPAIRED, IT
MAY ENTER AN ORDER GRANTING THE APPLICATION FOR THE USE OF LIVE, TWO-WAY CLOSED-CIRCUIT TELEVISION. 12. WHEN THE COURT HAS DETERMINED THAT A WITNESS IS AN ADVERSE WITNESS, IT SHALL MAKE A SPECIFIC FINDING AS TO WHETHER PLACING THE DEFENDANT AND THE WITNESS IN THE SAME ROOM DURING THE TESTIMONY OF THE WITNESS WILL CONTRIBUTE TO THE LIKELIHOOD THAT THE WITNESS WILL SUFFER SEVERE MENTAL OR EMOTIONAL HARM. IF THE COURT FINDS THAT PLACING THE DEFENDANT AND THE WITNESS IN THE SAME ROOM DURING THE TESTIMONY OF THE WITNESS WILL CONTRIBUTE TO THE LIKELIHOOD THAT THE WITNESS WILL SUFFER SEVERE MENTAL OR EMOTIONAL HARM, THE ORDER ENTERED PURSUANT TO SUBDIVI- SION ELEVEN OF THIS SECTION SHALL DIRECT THAT THE DEFENDANT REMAIN IN THE COURTROOM DURING THE TESTIMONY OF THE ADVERSE WITNESS. S 66.30 CLOSED-CIRCUIT TELEVISION; SPECIAL TESTIMONIAL PROCEDURES. 1. WHEN THE COURT HAS ENTERED AN ORDER PURSUANT TO SECTION 66.20 OF THIS ARTICLE, THE TESTIMONY OF THE ADVERSE WITNESS SHALL BE TAKEN IN THE TESTIMONIAL ROOM AND THE IMAGE AND VOICE OF THE ADVERSE WITNESS, AS WELL AS THE IMAGE OF ALL OTHER PERSONS OTHER THAN THE OPERATOR PRESENT IN THE TESTIMONIAL ROOM, SHALL BE TRANSMITTED LIVE BY MEANS OF CLOSED-CIRCUIT TELEVISION TO THE COURTROOM. THE COURTROOM SHALL BE EQUIPPED WITH MONI- TORS SUFFICIENT TO PERMIT THE JUDGE, JURY, DEFENDANT AND ATTORNEYS TO OBSERVE THE DEMEANOR OF THE ADVERSE WITNESS DURING HIS OR HER TESTIMONY. UNLESS THE COURTROOM HAS BEEN CLOSED PURSUANT TO COURT ORDER, THE PUBLIC SHALL ALSO BE PERMITTED TO HEAR THE TESTIMONY AND VIEW THE IMAGE OF THE ADVERSE WITNESS. 2. IN ALL INSTANCES, THE IMAGE OF THE JURY SHALL BE SIMULTANEOUSLY TRANSMITTED TO THE ADVERSE WITNESS IN THE TESTIMONIAL ROOM. IF THE COURT ORDER ISSUED PURSUANT TO SECTION 66.20 OF THIS ARTICLE SPECIFIES THAT THE ADVERSE WITNESS SHALL TESTIFY OUTSIDE THE PHYSICAL PRESENCE OF THE DEFENDANT, THE IMAGE OF THE DEFENDANT AND THE IMAGE AND VOICE OF THE PERSON EXAMINING THE ADVERSE WITNESS SHALL ALSO BE SIMULTANEOUSLY TRANS- MITTED TO THE ADVERSE WITNESS IN THE TESTIMONIAL ROOM. 3. THE OPERATOR SHALL PLACE HERSELF OR HIMSELF AND THE CLOSED-CIRCUIT TELEVISION EQUIPMENT IN A POSITION THAT PERMITS THE ENTIRE TESTIMONY OF THE ADVERSE WITNESS TO BE TRANSMITTED TO THE COURTROOM BUT LIMITS THE ABILITY OF THE ADVERSE WITNESS TO SEE OR HEAR THE OPERATOR OR THE EQUIP- MENT. 4. NOTWITHSTANDING ANY PROVISION OF THIS ARTICLE, IF THE COURT IN A PARTICULAR CASE INVOLVING AN ADVERSE WITNESS DETERMINES THAT THERE IS NO LIVE, TWO-WAY CLOSED-CIRCUIT TELEVISION EQUIPMENT AVAILABLE IN THE COURT OR ANOTHER COURT IN THE COUNTY OR WHICH CAN BE TRANSPORTED TO THE COURT FROM ANOTHER COUNTY OR THAT SUCH EQUIPMENT, IF AVAILABLE, IS TECHNOLOG- ICALLY INADEQUATE TO PROTECT THE CONSTITUTIONAL RIGHTS OF THE DEFENDANT, IT SHALL NOT PERMIT THE USE OF THE CLOSED-CIRCUIT TELEVISION PROCEDURES AUTHORIZED BY THIS ARTICLE. 5. IF THE ORDER OF THE COURT ENTERED PURSUANT TO SECTION 66.20 OF THIS ARTICLE REQUIRES THAT THE DEFENDANT REMAIN IN THE COURTROOM, THE ATTOR- NEY FOR THE DEFENDANT AND THE DISTRICT ATTORNEY SHALL ALSO REMAIN IN THE COURTROOM UNLESS THE COURT IS SATISFIED THAT THEIR PRESENCE IN THE TESTIMONIAL ROOM WILL NOT IMPEDE FULL AND PRIVATE COMMUNICATION BETWEEN THE DEFENDANT AND HIS OR HER ATTORNEY AND WILL NOT ENCOURAGE THE JURY TO DRAW AN INFERENCE ADVERSE TO THE INTEREST OF THE DEFENDANT. 6. UPON REQUEST OF THE DEFENDANT, THE COURT SHALL INSTRUCT THE JURY THAT THEY ARE TO DRAW NO INFERENCE FROM THE USE OF LIVE, TWO-WAY CLOSED-CIRCUIT TELEVISION IN THE EXAMINATION OF THE ADVERSE WITNESS. 7. THE ADVERSE WITNESS SHALL TESTIFY UNDER OATH. THE EXAMINATION AND CROSS-EXAMINATION OF THE ADVERSE WITNESS SHALL, IN ALL OTHER RESPECTS,
BE CONDUCTED IN THE SAME MANNER AS IF THE ADVERSE WITNESS HAD TESTIFIED IN THE COURTROOM. 8. WHEN THE TESTIMONY OF THE ADVERSE WITNESS IS TRANSMITTED FROM THE TESTIMONIAL ROOM INTO THE COURTROOM, THE COURT STENOGRAPHER SHALL RECORD THE TESTIMONY IN THE SAME MANNER AS IF THE ADVERSE WITNESS HAD TESTIFIED IN THE COURTROOM. S 2. This act shall take effect immediately.

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