2126-S.EAMSJUDS2867.1ESHB 2126S COMM AMDBy Committee on JudiciaryADOPTED 04/12/2005 Strike everything after the enacting clause and insert thefollowing:NEW SECTION.Sec. The legislature recognizes that it isimportant that dependent persons who are witnesses and victims of crimecooperate with law enforcement and prosecutorial agencies and thattheir assistance contributes to state and local enforcement efforts andthe general effectiveness of the criminal justice system. Thelegislature finds that the state has an interest in making it possiblefor courts to adequately and fairly conduct cases involving dependentpersons who are victims of crimes. Therefore, it is the intent of thelegislature, by means of this chapter, to insure that all dependentpersons who are victims and witnesses of crime are treated withsensitivity, courtesy, and special care and that their rights beprotected by law enforcement agencies, prosecutors, and judges in amanner no less vigorous than the protection afforded to other victims,witnesses, and criminal defendants.NEW SECTION.Sec. Unless the context clearly requiresotherwise, the definitions in this section apply throughout thischapter. (1) "Crime" means an act punishable as a felony, gross misdemeanor,or misdemeanor under the laws of this state or equivalent federal orlocal law. (2) "Dependent person" has the same meaning as that term is definedin RCW 9A.42.010. (3) "Victim" means a living person against whom a crime has beencommitted. (4) "Witness" means a person who has been or is expected to besummoned to testify for the prosecution or defense in a criminal 1 action, or who by reason of having relevant information is subject tocall or likely to be called as a witness, whether or not an action orproceeding has been commenced. (5) "Family member" means a person who is not accused of a crimeand who is an adult child, adult sibling, spouse, parent, or legalguardian of the dependent person. (6) "Advocate" means any person not accused of a crime, includinga family member, approved by the witness or victim, in consultationwith his or her guardian if applicable, who provides support to adependent person during any legal proceeding. (7) "Court proceedings" means any court proceeding conducted duringthe course of the prosecution of a crime committed against a dependentperson, including pretrial hearings, trial, sentencing, or appellateproceedings. (8) "Identifying information" means the dependent person's name,address, location, and photograph, and in cases in which the dependentperson is a relative of the alleged perpetrator, identification of therelationship between the dependent person and the alleged perpetrator. (9) "Crime victim/witness program" means any crime victim andwitness program of a county or local law enforcement agency orprosecutor's office, any rape crisis center's sexual assault victimadvocacy program as provided in chapter 70.125 RCW, any domesticviolence program's legal and community advocate program for domesticviolence victims as provided in chapter 70.123 RCW, or any other crimevictim advocacy program which provides trained advocates to assistcrime victims during the investigation and prosecution of the crime.NEW SECTION.Sec. (1) In addition to the rights of victims andwitnesses provided for in RCW 7.69.030, there shall be every reasonableeffort made by law enforcement agencies, prosecutors, and judges toassure that dependent persons who are victims or witnesses are affordedthe rights enumerated in this section. The enumeration of rights underthis chapter shall not be construed to create substantive rights andduties, and the application of an enumerated right in an individualcase is subject to the discretion of the law enforcement agency,prosecutor, or judge. Dependent persons who are victims or witnessesin the criminal justice system have the following rights, which applyto any criminal court or juvenile court proceeding: 2 (a) To have explained in language easily understood by thedependent person, all legal proceedings and police investigations inwhich the dependent person may be involved. (b) With respect to a dependent person who is a victim of a sex orviolent crime, to have a crime victim advocate from a crimevictim/witness program, or any other advocate of the victim's choosing,present at any prosecutorial or defense interviews with the dependentperson. This subsection applies unless it creates undue hardship andif the presence of the crime victim advocate or other advocate does notcause any unnecessary delay in the investigation or prosecution of thecase. The role of the crime victim advocate or other advocate is toprovide emotional support to the dependent person and to promote thedependent person's feelings of security and safety. (c) To be provided, whenever possible, a secure waiting area duringcourt proceedings and to have an advocate or support person remain withthe dependent person prior to and during any court proceedings. (d) To allow an advocate to make recommendations to the prosecutingattorney about the ability of the dependent person to cooperate withprosecution and the potential effect of the proceedings on thedependent person. (e) To allow an advocate to provide information to the courtconcerning the dependent person's ability to understand the nature ofthe proceedings. (f) To be provided information or appropriate referrals to socialservice agencies to assist the dependent person with the emotionalimpact of the crime, the subsequent investigation, and judicialproceedings in which the dependent person is involved. (g) To allow an advocate to be present in court while the dependentperson testifies in order to provide emotional support to the dependentperson. (h) To provide information to the court as to the need for thepresence of other supportive persons at the court proceedings while thedependent person testifies in order to promote the dependent person'sfeelings of security and safety. (i) To allow law enforcement agencies the opportunity to enlist theassistance of other professional personnel such as victim advocates orprosecutorial staff trained in the interviewing of the dependentperson. 3 (j) With respect to a dependent person who is a victim of a violentor sex crime, to receive either directly or through the dependentperson's legal guardian, if applicable, at the time of reporting thecrime to law enforcement officials, a written statement of the rightsof dependent persons as provided in this chapter. The statement may beparaphrased to make it more easily understood. The written statementshall include the name, address, and telephone number of a county orlocal crime victim/witness program, if such a crime victim/witnessprogram exists in the county. (2) Any party may request a preliminary hearing for the purpose ofestablishing accommodations for the dependent person consistent with,but not limited to, the rights enumerated in this section.NEW SECTION.Sec. (1) The prosecutor or defense may file amotion with the court at any time prior to commencement of the trialfor an order authorizing the taking of a video tape deposition for thepurpose of preserving the direct testimony of the moving party'switness if that witness is a dependent person. (2) The court may grant the motion if the moving party shows thatit is likely that the dependent person will be unavailable to testifyat a subsequent trial. The court's finding shall be based upon, at aminimum, recommendations from the dependent person's physician or anyother person having direct contact with the dependent person and whoserecommendations are based on specific behavioral indicators exhibitedby the dependent person. (3) The moving party shall provide reasonable written notice to theother party of the motion and order, if granted, pursuant to superiorcourt criminal rules for depositions. (4) Both parties shall have an opportunity to be present at thedeposition and the nonmoving party shall have the opportunity to crossexamine the dependent person. (5) Under circumstances permitted by the rules of evidence, thedeposition may be introduced as evidence in a subsequent proceeding ifthe dependent person is unavailable at trial and both the prosecutorand the defendant had notice of and an opportunity to participate inthe taking of the deposition. 4 NEW SECTION.Sec. (1) The failure to provide notice to adependent person of the rights enumerated in this chapter or thefailure to provide the rights enumerated shall not result in civilliability so long as the failure was in good faith. (2) Nothing in this chapter shall be construed to limit a party'sability to bring an action, including an action for damages, based onrights conferred by other state or federal law.NEW SECTION.Sec. Sections 1 through 5 of this act constitutea new chapter in Title 7 RCW.NEW SECTION.Sec. If any provision of this act or itsapplication to any person or circumstance is held invalid, theremainder of the act or the application of the provision to otherpersons or circumstances is not affected.ESHB 2126S COMM AMDBy Committee on JudiciaryADOPTED 04/12/2005 On page 1, line 2 of the title, after witnesses; strike theremainder of the title and insert and adding a new chapter to Title 7RCW.--- END --- 5