22-3434. Videotape of testimony of child victim admissible in certain cases; limitations; standard of proof; objections, restrictions. (a) On motion of the attorney for any party to a criminal proceeding in which a child less than 13 years of age is alleged to be a victim of the crime, subject to the conditions of subsection (b), the court may order that the testimony of the child be taken:
(1) In a room other than the courtroom and be televised by closed-circuit equipment in the courtroom to be viewed by the court and the finder of fact in the proceeding; or
(2) outside the courtroom and be recorded for showing in the courtroom before the court and the finder of fact in the proceeding if: (A) The recording is both visual and aural and is recorded on film or videotape or by other electronic means; (B) the recording equipment is capable of making an accurate recording, the operator of the equipment is competent and the recording is accurate and has not been altered; (C) every voice on the recording is identified; and (D) each party to the proceeding is afforded an opportunity to view the recording before it is shown in the courtroom, and a copy of a written transcript is provided to the parties.
(b) The state must establish by clear and convincing evidence that to require the child who is the alleged victim to testify in open court will so traumatize the child as to prevent the child from reasonably communicating to the jury or render the child unavailable to testify. The court shall make such an individualized finding before the state is permitted to proceed under this section.
(c) At the taking of testimony under this section:
(1) Only the attorneys for the defendant, the state and the child, any person whose presence would contribute to the welfare and well-being of the child and persons necessary to operate the recording or closed-circuit equipment may be present in the room with the child during the child's testimony;
(2) only the attorneys may question the child;
(3) the persons operating the recording or closed-circuit equipment shall be confined to an adjacent room or behind a screen or mirror that permits them to see and hear the child during the child's testimony but does not permit the child to see or hear them; and
(4) the court shall permit the defendant to observe and hear the testimony of the child in person, but shall ensure that the child cannot hear or see the defendant.
(d) If the testimony of a child is taken as provided by this section, the child shall not be compelled to testify in court during the proceeding.
(e) (1) Any objection by any party to the proceeding to a recording under subsection (a)(2) is inadmissible must be made by written motion filed with the court at least seven days before the commencement of the trial. An objection under this subsection shall specify the portion of the recording which is objectionable and the reasons for the objection. Failure to file an objection within the time provided by this subsection shall constitute waiver of the right to object to the admissibility of the recording unless the court, in its discretion, determines otherwise.
(2) The provisions of this subsection (d) shall not apply to any objection to admissibility for the reason that the recording has been materially altered.
History: L. 1985, ch. 112, § 4; L. 1986, ch. 135, § 2; L. 1986, ch. 119, § 4; L. 1990, ch. 110, § 1; July 1.
Cross References to Related Sections:
Code for care of children, proceedings, see 38-2249.
Law Review and Bar Journal References:
"Exceptions to the Sixth Amendment Confrontation Clause: Kansas Clarifies the Child Victim Exception [State v. Chisholm, 245 Kan. 145, 777 P.2d 753 (1989)]," Anthony J. Powell, 29 W.L.J. 652, 660, 661, 662, 664 (1990).
"Child Victim Hearsay Exception Under K.S.A. 60-460(dd)," Judge Tom Malone, J.K.T.L.A. Vol. XV, No. 5, 9, 12 (1992).
"The Child Victim/Witness: Balancing of Defendant/Victim Rights in the Emotional Caldron of a Criminal Trial," Thomas D. Haney, 62 J.K.B.A. No. 1, 38, 39 (1993).
"Criminal Procedure Survey of Recent Cases," Matt Corbin, Editor, 51 K.L.R. 659, 718 (2003).
"Breaking the Victimization Cycle: Domestic Minor Trafficking in Kansas," Leslie Klaassen, 52 W.L.J. 581 (2013).
CASE ANNOTATIONS
1. Statute constitutional and does not violate defendant's right to confront witnesses against him. State v. Johnson, 240 Kan. 326, 332, 729 P.2d 1169 (1986).
2. Cited; by dissent; use of videotape where alleged child victim "unavailable as a witness" (K.S.A. 60-460(dd)) discussed. State v. Kuone, 243 Kan. 218, 235, 757 P.2d 289 (1988).
3. Use of closed-circuit television does not violate 6 th Amendment right to confront accuser. State v. Chisholm, 243 Kan. 270, 274, 755 P.2d 547 (1988).
4. Right to confrontation not denied where child victim testifies via closed-circuit television provided conditions stated in opinion met. State v. Eaton, 244 Kan. 370, 769 P.2d 1157 (1989).
5. Trial court's individualized finding regarding trauma to child-victim witness if testimony given in open court held sufficient. State v. Albert, 13 Kan. App. 2d 671, 675, 778 P.2d 386 (1989).
6. Trial court's required finding in order to protect defendant's constitutional right of confrontation stated. State v. Chisholm, 245 Kan. 145, 150, 152, 777 P.2d 753 (1989).
7. Sight barrier to prevent child-victim from seeing defendant while victim testified examined. State v. Siard, 245 Kan. 716, 719, 783 P.2d 895 (1989).
8. Distinctions from K.S.A. 22-3434 and 60-460(dd) examined; application of statutes and 6 th Amendment under facts presented determined. State v. Lamb, 14 Kan. App. 2d 664, 667, 798 P.2d 506 (1990).
9. Trial court's findings in order to allow testimony via closed-circuit television. State v. Chisholm, 250 Kan. 153, 154, 155, 156, 157, 159, 166, 167, 168, 825 P.2d 147 (1992).
10. Conditions under which a minor child-victim may be accompanied by a parent or supportive adult while testifying examined; section's procedures are not exclusive where child has difficulty testifying unaccompanied. State v. Rowray, 18 Kan. App. 2d 772, 773, 777, 778, 860 P.2d 40 (1993).
11. No denial of confrontational right where child-victim testifies by closed circuit television. State v. Boyd, 281 Kan. 70, 127 P.3d 998 (2006).
12. State met burden required for use of closed-circuit television and court made sufficient findings for use. State v. Blanchette, 35 Kan. App. 2d 686, 699, 702, 134 P.3d 19 (2006).
13. Indecent liberties victim under 13 permitted to testify by closed-circuit television; no confrontation rights violation. State v. Bejarano, 41 Kan. App. 2d 133, 202 P.3d 39 (2009).
14. K.S.A. 22-3434 imposes no duty on the district court to require a child victim to testify in criminal proceeding. State v. Miller, 42 Kan. App. 2d 12, 208 P.3d 774 (2009).
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