BILL REQ. #:  H-1774.1 

Read first time 02/18/2005.   Referred to Committee on Judiciary.

     AN ACT Relating to providing accommodations to dependent persons who are victims and witnesses; amending RCW 5.28.030; and adding a new chapter to Title 7 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The legislature recognizes that it is important that dependent persons who are witnesses and victims of crime cooperate with law enforcement and prosecutorial agencies and that their assistance contributes to state and local enforcement efforts and the general effectiveness of the criminal justice system. The legislature finds that the state has an interest in making it possible for courts to adequately and fairly conduct cases involving dependent persons who are victims of crimes. Therefore, it is the intent of the legislature, by means of this chapter, to insure that all dependent persons who are victims and witnesses of crime are treated with sensitivity, courtesy, and special care and that their rights be protected by law enforcement agencies, prosecutors, and judges in a manner no less vigorous than the protection afforded to other victims, witnesses, and criminal defendants.

NEW SECTION.  Sec. 2   Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.
     (1) "Crime" means an act punishable as a felony, gross misdemeanor, or misdemeanor under the laws of this state or equivalent federal or local law.
     (2) "Dependent person" has the same meaning as that term is defined in RCW 9A.42.010.
     (3) "Victim" means a living person against whom a crime has been committed.
     (4) "Witness" means a person who has been or is expected to be summoned to testify for the prosecution in a criminal action, or who by reason of having relevant information is subject to call or likely to be called as a witness for the prosecution, whether or not an action or proceeding has been commenced.
     (5) "Family member" means a person who is not accused of a crime and who is an adult child, adult sibling, spouse, parent, or legal guardian of the dependent person.
     (6) "Advocate" means any person not accused of a crime, including a family member approved by the witness or victim, who provides support to a dependent person during any legal proceeding.
     (7) "Court proceedings" means any court proceeding conducted during the course of the prosecution of a crime committed against a dependent person, including pretrial hearings, trial, sentencing, or appellate proceedings.
     (8) "Identifying information" means the dependent person's name, address, location, and photograph, and in cases in which the dependent person is a relative of the alleged perpetrator, identification of the relationship between the dependent person and the alleged perpetrator.
     (9) "Crime victim/witness program" means any crime victim and witness program of a county or local law enforcement agency or prosecutor's office, any rape crisis center's sexual assault victim advocacy program as provided in chapter 70.125 RCW, any domestic violence program's legal and community advocate program for domestic violence victims as provided in chapter 70.123 RCW, or any other crime victim advocacy program which provides trained advocates to assist crime victims during the investigation and prosecution of the crime.

NEW SECTION.  Sec. 3   In addition to the rights of victims and witnesses provided for in RCW 7.69.030, there shall be every reasonable effort made by law enforcement agencies, prosecutors, and judges to assure that dependent persons who are victims or witnesses are afforded the rights enumerated in this section. The enumeration of rights under this chapter shall not be construed to create substantive rights and duties, and the application of an enumerated right in an individual case is subject to the discretion of the law enforcement agency, prosecutor, or judge. Dependent persons who are victims or witnesses in the criminal justice system have the following rights, which apply to any criminal court or juvenile court proceeding:
     (1) To have explained in language easily understood by the dependent person, all legal proceedings and police investigations in which the dependent person may be involved.
     (2) With respect to a dependent person who is a victim of a sex or violent crime, to have a crime victim advocate from a crime victim/witness program, or any other advocate of the victim's choosing, present at any prosecutorial or defense interviews with the dependent person. This subsection applies unless it creates undue hardship and if the presence of the crime victim advocate or other advocate does not cause any unnecessary delay in the investigation or prosecution of the case. The role of the crime victim advocate or other advocate is to provide emotional support to the dependent person and to promote the dependent person's feelings of security and safety.
     (3) To be provided, whenever possible, a secure waiting area during court proceedings and to have an advocate or support person remain with the dependent person prior to and during any court proceedings.
     (4) To not have the dependent person's identifying information disclosed by any law enforcement agency, prosecutor's office, or state agency without the permission of the dependent person or his or her legal guardian, if applicable, to anyone except another law enforcement agency, prosecutor, defense counsel, or private or governmental agency that provides services to the dependent person if such disclosure will harm the dependent person's reputation. If identifying information that would be harmful to the dependent person's reputation is disclosed to a party other than another law enforcement agency, prosecutor's office, or state agency, the disclosing party shall request a written agreement by the recipient of the information stating that the recipient will not further disseminate the information without the dependent person's written consent.
     (5) To allow an advocate to make recommendations to the prosecuting attorney about the ability of the dependent person to cooperate with prosecution and the potential effect of the proceedings on the dependent person.
     (6) To allow an advocate to provide information to the court concerning the dependent person's ability to understand the nature of the proceedings.
     (7) To be provided information or appropriate referrals to social service agencies to assist the dependent person with the emotional impact of the crime, the subsequent investigation, and judicial proceedings in which the dependent person is involved.
     (8) To allow an advocate to be present in court while the dependent person testifies in order to provide emotional support to the dependent person.
     (9) To provide information to the court as to the need for the presence of other supportive persons at the court proceedings while the dependent person testifies in order to promote the dependent person's feelings of security and safety.
     (10) To allow law enforcement agencies the opportunity to enlist the assistance of other professional personnel such as victim advocates or prosecutorial staff trained in the interviewing of the dependent person.
     (11) With respect to a dependent person who is a victim of a violent or sex crime, to receive either directly or through the dependent person's legal guardian, if applicable, at the time of reporting the crime to law enforcement officials, a written statement of the rights of dependent persons as provided in this chapter. The statement may be paraphrased to make it more easily understood. The written statement shall include the name, address, and telephone number of a county or local crime victim/witness program, if such a crime victim/witness program exists in the county.

NEW SECTION.  Sec. 4   To assist in ascertaining the truth and securing fairness and efficiency during criminal proceedings in which a dependent person is a victim or witness, the court may:
     (1) Allow the prosecutor to ask leading questions of a dependent person when necessary to develop the person's testimony;
     (2) Exercise reasonable control over a defendant's cross-examination of a dependent person to protect the dependent person from confusion;
     (3) Instruct the jury that a dependent person is neither more nor less believable than any other witness;
     (4) Provide appropriate accommodations, including but not limited to frequent recesses or reducing the formality in the courtroom, to a dependent person to assist the dependent person in effectively testifying;
     (5) As provided in RCW 5.28.030, vary the manner in which the oath is given to a dependent person before testifying if administering the formal oath may cause confusion;
     (6) Admit evidence of a defendant's character if the dependent person is the victim of the crime and the defendant has previously committed crimes against other dependent persons; and
     (7) Postpone the court proceedings for one court day to accommodate the special physical, mental, or emotional needs of the dependent person.

NEW SECTION.  Sec. 5   (1) The prosecutor may file a motion with the court at any time prior to commencement of the trial for an order authorizing the taking of a video tape deposition of the dependent person's testimony.
     (2) The court may grant the motion if the prosecutor shows that it is likely that the dependent person will be unavailable to testify at a subsequent trial. The court's finding shall be based upon, at a minimum, recommendations from the dependent person's physician or any other person having direct contact with the dependent person and whose recommendations are based on specific behavioral indicators exhibited by the dependent person.
     (3) The prosecutor shall provide reasonable written notice to the defendant of the motion and order, if granted, pursuant to superior court criminal rules for depositions.
     (4) The defendant shall have an opportunity to be present at the deposition and to cross-examine the dependent person.
     (5) Under circumstances permitted by the rules of evidence, the deposition may be introduced as evidence in a subsequent proceeding if the dependent person is unavailable at trial and the defendant had notice of and an opportunity to participate in the taking of the deposition.

NEW SECTION.  Sec. 6   (1) On motion of the prosecuting attorney in a criminal proceeding, the court may order that a dependent person may testify in a room outside the presence of the defendant or the jury, or both, while one-way closed circuit television equipment simultaneously projects the dependent person's testimony into another room so the defendant or the jury, or both, can watch and hear the dependent person testify if:
     (a) The testimony is taken during the court proceeding;
     (b) The court finds by substantial evidence, in a hearing conducted outside the presence of the jury, that requiring the dependent person to testify in the presence of the defendant or the jury, or both, will cause the dependent person to suffer serious emotional or mental distress that will prevent the dependent person from reasonably communicating at the trial or that the dependent person will suffer emotional or mental distress from testifying in the presence of the defendant or the jury, or both. If the defendant is excluded from the presence of the dependent person, the jury must also be excluded. If the dependent person is able to testify in the presence of the defendant but not the jury, the jury shall be excluded from the room and the defendant shall remain in the room with the dependent person;
     (c) The court finds that the prosecutor has made all reasonable efforts to prepare the dependent person for testifying, including informing the dependent person about community counseling services, giving court tours, and explaining the trial process. If the prosecutor fails to demonstrate that preparations were implemented or the prosecutor in good faith attempted to implement them, the court shall deny the motion;
     (d) The court balances the strength of the state's case without the testimony of the dependent person against the defendant's constitutional rights and the degree of infringement of the closed-circuit television procedure on those rights;
     (e) The court finds that no less restrictive method of obtaining the testimony exists that can adequately protect the dependent person from the serious emotional or mental distress;
     (f) When the court allows the dependent person to testify outside the presence of the defendant, the defendant can communicate constantly with the defense attorney by electronic transmission and be granted reasonable court recesses during the dependent person's testimony for person-to-person consultation with the defense attorney;
     (g) The court can communicate with the attorneys by an audio system so that the court can rule on objections and otherwise control the proceedings;
     (h) All parties in the room with the dependent person are on camera and can be viewed by all other parties. If viewing all participants is not possible, the court shall describe for the viewers the location of the prosecutor, defense attorney, and other participants in relation to the dependent person;
     (i) The court finds that the television equipment is capable of making an accurate reproduction and the operator of the equipment is competent to operate the equipment; and
     (j) The court imposes reasonable guidelines upon the parties for conducting the filming to avoid trauma to the dependent person or abuse of the procedure for tactical advantage.
     (2) The prosecutor, defense attorney, and a neutral and trained victim's advocate, if any, shall always be in the room where the dependent person is testifying.
     (3) During the hearing conducted under subsection (1) of this section to determine whether the dependent person may testify outside the presence of the defendant or the jury, or both, the court may conduct the observation and examination of the dependent person outside the presence of the defendant if:
     (a) The prosecutor alleges and the court concurs that the dependent person will be unable to testify in front of the defendant or will suffer severe emotional or mental distress if forced to testify in front of the defendant;
     (b) The defendant can observe and hear the dependent person by closed-circuit television;
     (c) The defendant can communicate constantly with the defense attorney during the examination of the dependent person by electronic transmission and be granted reasonable court recesses during the dependent person's examination for person-to-person consultation with the defense attorney; and
     (d) The court finds the closed-circuit television is capable of making an accurate reproduction and the operator of the equipment is competent to operate the equipment. Whenever possible, all the parties in the room with the dependent person shall be on camera so that the viewers can see all the parties. If viewing all participants is not possible, then the court shall describe for the viewers the location of the prosecutor, defense attorney, and other participants in relation to the dependent person.
     (4) The court shall make particularized findings on the record articulating the factors upon which the court based its decision to allow the dependent person to testify via closed-circuit television pursuant to this section. The factors the court may consider include, but are not limited to, a consideration of the dependent person's age, physical health, emotional stability, expressions of fear made by the dependent person regarding testifying in open court or in front of the defendant, the relationship of the defendant to the dependent person, and the court's observations of the dependent person's inability to reasonably communicate in front of the defendant or in open court. The court's findings shall identify the impact the factors have upon the dependent person's ability to testify in front of the jury or the defendant, or both, and the specific nature of the emotional or mental trauma the dependent person would suffer. The court shall determine whether the source of the trauma is the presence of the defendant, the jury, or both, and shall limit the use of the closed-circuit television accordingly.
     (5) This section does not apply if the defendant is an attorney pro se unless the defendant has a court-appointed attorney assisting the defendant in the defense.
     (6) This section may not preclude the presence of both the victim and the defendant in the courtroom together for purposes of establishing or challenging the identification of the defendant when identification is a legitimate issue in the proceeding.
     (7) All recorded tapes of testimony produced by closed-circuit television equipment shall be subject to any protective order of the court for the purpose of protecting the privacy of the dependent person.
     (8) Nothing in this section creates a right of the dependent person to a closed-circuit television procedure in lieu of testifying in open court.
     (9) The state shall bear the costs of the closed-circuit television procedure.

NEW SECTION.  Sec. 7   (1) The failure to provide notice to a dependent person of the rights enumerated in this chapter or the failure to provide the rights enumerated shall not result in civil liability so long as the failure was in good faith.
     (2) Nothing in this chapter shall be construed to limit a party's ability to bring an action, including an action for damages, based on rights conferred by other state or federal law.

Sec. 8   RCW 5.28.030 and 2 H. C. s 1695 are each amended to read as follows:
     (1) Whenever the court or officer before which a person is offered as a witness is satisfied that he has a peculiar mode of swearing connected with or in addition to the usual form of administration, which, in witness' opinion, is more solemn or obligatory, the court or officer may, in its discretion, adopt that mode.
     (2) Whenever a dependent person, as defined in RCW 9A.42.010, is offered as a witness and the court finds that varying the form and administration of the oath would avoid confusion for the dependent person, the court may vary the oath to be more easily understood by the dependent person while still conveying the solemn and obligatory nature of the oath.

NEW SECTION.  Sec. 9   Sections 1 through 7 of this act constitute a new chapter in Title 7 RCW.

NEW SECTION.  Sec. 10   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.