Pennsylvania Act 2004-87 — JUDICIAL CODE (42 PA.C.S.) - CHILD VICTIMS AND WITNESSES

Act text

JUDICIAL CODE (42 PA.C.S.) - CHILD VICTIMS AND WITNESSES
                  Act of Jul. 15, 2004, P.L. 736, No. 87              Cl. 42
                             Session of 2004
                               No. 2004-87

     SB 979

                                  AN ACT

     Amending Title 42 (Judiciary and Judicial Procedure) of the
        Pennsylvania Consolidated Statutes, further providing for
        declaration of policy; defining "contemporaneous alternative
        method"; repealing provisions relating to videotaped
        depositions by a child victim or child material witness;
        further providing for recorded testimony, for testimony by
        contemporaneous alternative methods, for admissibility of
        certain statements, for hearsay, for use of dolls, for child
        victims of sexual or physical abuse and for comparative
        negligence.

        The General Assembly of the Commonwealth of Pennsylvania
     hereby enacts as follows:

        Section 1.  Section 5981 of Title 42 of the Pennsylvania
     Consolidated Statutes is amended to read:
      § 5981.  Declaration of policy.
        In order to promote the best interests of the children of
     this Commonwealth, especially those children who are material
     witnesses to or victims of crimes, [and in order to implement
     the constitutional amendment adopted on November 7, 1995,] the
     General Assembly declares its intent, in this subchapter, to
     provide these children, where necessity is shown, procedures
     which will protect them during their involvement with the
     criminal justice system. The General Assembly urges the news
     media to use significant restraint and caution in revealing the
     identity or address of children who are victims of or witnesses
     to crimes or other information that would reveal the name or
     address of the child victim or witness.
        Section 2.  Section 5982 of Title 42 is amended by adding a
     definition to read:
      § 5982.  Definitions.
        The following words and phrases when used in this subchapter
     shall have the meanings given to them in this section unless the
     context clearly indicates otherwise:
        * * *
        "Contemporaneous alternative method."  Any method of
     capturing the visual images, oral communications and other
     information presented during a prosecution or adjudication
     involving a child victim or a child material witness and
     transmitting and receiving such images, communications and other
     information at or about the time of their creation, including,
     but not limited to, closed-circuit television, streaming image
     sent via the Internet or an intranet and any other devices or
     systems used to accomplish such ends.
        * * *
        Section 3.  Section 5984 of Title 42 is repealed.
        Section 4.  Sections 5984.1, 5985, 5985.1, 5986, 5987 and
     5988 of Title 42 are amended to read:
      § 5984.1.  [Testimony by videotaped recording.] Recorded
                testimony.
        (a)  [Videotape] Recording.--Subject to subsection (b), in
     any prosecution or adjudication involving a child victim or
     child material witness, the court may order [the taking of] that
     the child victim's or child material witness's testimony [by
     videotaped recording.] be recorded for presentation in court by
     any method that accurately captures and preserves the visual
     images, oral communications and other information presented
     during such testimony. The testimony shall be taken under oath
     or affirmation before the court in chambers or in a special
     facility designed for taking the [videotaped] recorded testimony
     of children. Only the attorneys for the defendant and for the
     Commonwealth, persons necessary to operate the equipment, a
     qualified shorthand reporter and any person whose presence would
     contribute to the welfare and well-being of the child victim or
     child material witness, including persons designated under
     section 5983 (relating to rights and services), may be present
     in the room with the child during testimony. The court shall
     permit the defendant to observe and hear the testimony of the
     child victim or child material witness but shall ensure that the
     child victim or material witness cannot hear or see the
     defendant. Examination and cross-examination of the child victim
     or child material witness shall proceed in the same manner as
     [permitted at trial] normally permitted. The court shall make
     certain that the defendant and defense counsel have adequate
     opportunity to communicate for the purpose of providing an
     effective defense.
        (b)  Determination.--Before the court orders the child victim
     or the child material witness to testify by [videotaped
     recording] recorded testimony, the court must determine, based
     on evidence presented to it, that testifying either in an open
     forum in the presence and full view of the finder of fact or in
     the defendant's presence will result in the child victim or
     child material witness suffering serious emotional distress
     [such that the child victim] that would substantially impair the
     child victim's or child material [witness cannot reasonably]
     witness's ability to reasonably communicate. In making this
     determination, the court may do any of the following:
            (1)  Observe and question the child victim or child
        material witness, either inside or outside the courtroom.
            (2)  Hear testimony of a parent or custodian or any other
        person, such as a person who has dealt with the child victim
        or child material witness in a medical or therapeutic
        setting.
        (c)  Counsel and confrontation.--
            (1)  If the court observes or questions the child victim
        or child material witness under subsection (b)(1), the
        attorney for the defendant and the attorney for the
        Commonwealth have the right to be present, but the court
        shall not permit the defendant to be present.
            (2)  If the court hears testimony under subsection
        (b)(2), the defendant, the attorney for the defendant and the
        attorney for the Commonwealth have the right to be present.
        [(d)  Effect of order.--If the court orders the testimony of
     a child to be taken under subsection (a), the child may not be
     required to testify in court at the proceeding for which the
     testimony was taken.]
      § 5985.  Testimony by [closed-circuit television]
                contemporaneous alternative method.
        (a)  [Closed-circuit television] Contemporaneous alternative
     method.--Subject to subsection (a.1), in any prosecution or
     adjudication involving a child victim or a child material
     witness, the court may order that the testimony of the child
     victim or child material witness be taken under oath or
     affirmation in a room other than the courtroom and [televised by
     closed-circuit equipment to be viewed by the court and the
     finder of fact in the proceeding] transmitted by a
     contemporaneous alternative method. Only the attorneys for the
     defendant and for the Commonwealth, the court reporter, the
     judge, persons necessary to operate the equipment and any person
     whose presence would contribute to the welfare and well-being of
     the child victim or child material witness, including persons
     designated under section 5983 (relating to rights and services),
     may be present in the room with the child during his testimony.
     The court shall permit the defendant to observe and hear the
     testimony of the child victim or child material witness but
     shall ensure that the child cannot hear or see the defendant.
     The court shall make certain that the defendant and defense
     counsel have adequate opportunity to communicate for the
     purposes of providing an effective defense. Examination and
     cross-examination of the child victim or child material witness
     shall proceed in the same manner as normally permitted [at
     trial].
        (a.1)  Determination.--Before the court orders the child
     victim or the child material witness to testify by [closed-
     circuit television] a contemporaneous alternative method, the
     court must determine, based on evidence presented to it, that
     testifying either in an open forum in the presence and full view
     of the finder of fact or in the defendant's presence will result
     in the child victim or child material witness suffering serious
     emotional distress [such that the child victim] that would
     substantially impair the child victim's or child material
     [witness cannot] witness's ability to reasonably communicate. In
     making this determination, the court may do all of the
     following:
            (1)  Observe and question the child victim or child
        material witness, either inside or outside the courtroom.
            (2)  Hear testimony of a parent or custodian or any other
        person, such as a person who has dealt with the child victim
        or child material witness in a medical or therapeutic
        setting.
        (a.2)  Counsel and confrontation.--
            (1)  If the court observes or questions the child victim
        or child material witness under subsection (a.1)(1), the
        attorney for the defendant and the attorney for the
        Commonwealth have the right to be present, but the court
        shall not permit the defendant to be present.
            (2)  If the court hears testimony under subsection
        (a.1)(2), the defendant, the attorney for the defendant and
        the attorney for the Commonwealth have the right to be
        present.
        [(b)  Effect of order.--If the court orders the testimony of
     a child to be taken under subsection (a), the child may not be
     required to testify in court at the proceeding for which the
     testimony was taken.]
      § 5985.1.  Admissibility of certain statements.
        (a)  General rule.--An out-of-court statement made by a child
     victim or witness, who at the time the statement was made was 12
     years of age or younger, describing [physical abuse, indecent
     contact or] any of the offenses enumerated in [18 Pa.C.S. Ch. 31
     (relating to sexual offenses) performed with or on the child by
     another,] 18 Pa.C.S. Chs. 25 (relating to criminal homicide), 27
     (relating to assault), 29 (relating to kidnapping), 31 (relating
     to sexual offenses), 35 (relating to burglary and other criminal
     intrusion) and 37 (relating to robbery), not otherwise
     admissible by statute or rule of evidence, is admissible in
     evidence in any criminal or civil proceeding if:
            (1)  the court finds, in an in camera hearing, that the
        evidence is relevant and that the time, content and
        circumstances of the statement provide sufficient indicia of
        reliability; and
            (2)  the child either:
                (i)  testifies at the proceeding; or
                (ii)  is unavailable as a witness.
        (a.1)  Emotional distress.--[Before the court makes a finding
     under subsection (a)(2)(ii),] In order to make a finding under
     subsection (a)(2)(ii) that the child is unavailable as a
     witness, the court must determine, based on evidence presented
     to it, that testimony by the child as a witness will result in
     the child suffering serious emotional distress [such that the
     child cannot reasonably] that would substantially impair the
     child's ability to reasonably communicate. In making this
     determination, the court may do all of the following:
            (1)  Observe and question the child [victim or child
        material witness], either inside or outside the courtroom.
            (2)  Hear testimony of a parent or custodian or any other
        person, such as a person who has dealt with the child [victim
        or child material witness] in a medical or therapeutic
        setting.
        (a.2)  Counsel and confrontation.--If the court hears
     testimony in connection with making a finding under subsection
     (a)(2)(ii), all of the following apply:
            (1)  Except as provided in paragraph (2), the defendant,
        the attorney for the defendant and the attorney for the
        Commonwealth or, in the case of a civil proceeding, the
        attorney for the plaintiff has the right to be present.
            (2)  If the court observes or questions the child, the
        court shall not permit the defendant to be present.
        (b)  Notice required.--A statement otherwise admissible under
     subsection (a) shall not be received into evidence unless the
     proponent of the statement notifies the adverse party of the
     proponent's intention to offer the statement and the particulars
     of the statement sufficiently in advance of the proceeding at
     which the proponent intends to offer the statement into evidence
     to provide the adverse party with a fair opportunity to prepare
     to meet the statement.
      § 5986.  Hearsay.
        (a)  General rule.--A statement made by a child describing
     acts and attempted acts of indecent contact, sexual intercourse
     or deviate sexual intercourse performed with or on the child by
     another, not otherwise admissible by statute or court ruling, is
     admissible in evidence in a dependency proceeding initiated
     under Chapter 63 (relating to juvenile matters), involving that
     child or other members of that child's family, if:
            (1)  the court finds, in an in camera hearing, that the
        evidence is relevant and that the time, content and
        circumstances of the statement provide sufficient indicia of
        reliability; and
            (2)  the child either:
                (i)  testifies at the proceeding; or
                (ii)  is found by the court to be unavailable as a
            witness.
        (b)  Emotional distress.--In order to make a finding under
     subsection (a)(2)(ii) that the child is unavailable as a
     witness, the court must determine, based on evidence presented
     to it, that testimony by the child as a witness will result in
     the child suffering serious emotional distress [such that the
     child cannot reasonably] that would substantially impair the
     child's ability to reasonably communicate. In making this
     determination, the court may do all of the following:
            (1)  Observe and question the child [victim or child
        material witness], either inside or outside the courtroom.
            (2)  Hear testimony of a parent or custodian or any other
        person, such as a person who has dealt with the child [victim
        or child material witness] in a medical or therapeutic
        setting.
        (c)  Counsel and confrontation.--If the court hears testimony
     in connection with making a finding under subsection (a)(2)(ii),
     all of the following apply:
            (1)  Except as provided in paragraph (2), the defendant,
        the attorney for the defendant and the attorney for the
        Commonwealth have the right to be present.
            (2)  If the court observes or questions the child, the
        court shall not permit the defendant to be present.
      § 5987.  Use of dolls.
        In any criminal proceeding charging physical abuse, indecent
     contact or any of the offenses enumerated in 18 Pa.C.S. Ch. 31
     (relating to sexual offenses), the court shall permit the use of
     anatomically correct dolls or mannequins to assist [an alleged
     victim] a child in testifying on direct examination and cross-
     examination.
      § 5988.  Victims of sexual or physical abuse.
        (a)  Release of name prohibited.--[In] Notwithstanding any
     other provision of law to the contrary, in a prosecution
     involving a child victim of sexual or physical abuse, unless the
     court otherwise orders, the name of the child victim shall not
     be disclosed by officers or employees of the court to the
     public, and any records revealing the name of the child victim
     will not be open to public inspection.
        (b)  Penalty.--Any person who violates this section commits a
     misdemeanor of the third degree.
        Section 5.  Section 7102(d) of Title 42 is amended and the
     section is amended by adding a subsection to read:
      § 7102.  Comparative negligence.
        * * *
        (b.3)  Off-road vehicle riding.--
            (1)  Off-road vehicle riding area operators shall have no
        duty to protect riders from common, frequent, expected and
        nonnegligent risks inherent to the activity, including
        collisions with riders or objects.
            (2)  The doctrine of knowing voluntary assumption of risk
        shall apply to all actions to recover damages for negligence
        resulting in death or injury to person or property brought
        against any off-road vehicle riding area operator.
            (3)  Nothing in this subsection shall be construed in any
        way to abolish or modify a cause of action against a
        potentially responsible party other than an off-road vehicle
        riding area operator.
        * * *
        (d)  Definitions.--As used in this section the following
     words and phrases shall have the meanings given to them in this
     subsection:
        "Defendant or defendants."  Includes impleaded defendants.
        "Off-road vehicle."  A motorized vehicle that is used off-
     road for sport or recreation. The term includes snowmobiles,
     all-terrain vehicles, motorcycles and four-wheel drive vehicles.
        "Off-road vehicle riding area."  Any area or facility
     providing recreational activities for off-road vehicles.
        "Off-road vehicle riding area operator."  A person or
     organization owning or having operational responsibility for any
     off-road vehicle riding area. The term includes:
            (1)  Agencies and political subdivisions of this
        Commonwealth.
            (2)  Authorities created by political subdivisions.
            (3)  Private companies.
        "Plaintiff."  Includes counter claimants and cross-claimants.
        Section 6.  This act shall take effect immediately.

     APPROVED--The 15th day of July, A. D. 2004.

     EDWARD G. RENDELL