Section 491.725

Title XXXIII EVIDENCE AND LEGAL ADVERTISEMENTS

Chapter 491

Effective - 28 Aug 2009   

  491.725.  Citation of law — definitions — applicability. — 1.  This section shall be known and may be cited as the "Child Witness Protection Act".

  2.  As used in this section, the following terms shall mean:

  (1)  "Child", a person fourteen years of age or under, or at the discretion of the court, a person fifteen to seventeen years of age, who is a witness in any judicial proceeding under chapter 452 or 453, or the alleged victim or witness in any judicial proceeding under chapter 455, 565, 566, or 568.  The court shall make written findings on the record when a child fifteen to seventeen years of age is included under this subdivision.  "Victim" or "witness" shall not include any child accused of committing a felony; however, these terms may, in the court's discretion, include:

  (a)  A child where such child's participation in a felony appears to have been induced, coerced, or unwilling; or

  (b)  A child who has participated in the felony, but who has subsequently and voluntarily agreed to testify on behalf of the state;

  (2)  "Support person", an adult, designated by the court to serve as a support person, who is known to the child victim or witness and who has no direct legal or pecuniary interest in the outcome of the judicial proceeding.

  3.  In order to facilitate testimony that is fair and accurate, for the benefit of all parties, and in order to protect all parties from the risks of a child becoming confused while testifying in a judicial proceeding, the following child witness protection act shall apply to all children testifying in court:

  (1)  Whether at a competency hearing or trial itself, the judge shall ensure that any oath that is required of a child shall be administered in such a manner that the child may fully understand his or her duty to tell the truth;

  (2)  The court shall take care to ensure that questions are stated in a form which is appropriate to the age of the child.  The court shall explain to the child that if he or she does not understand a question, the child has the right to say that he or she does not understand the question and to have the question restated in a form that the child does understand;

  (3)  In the court's discretion, the taking of testimony from a child victim or witness may be limited in duration or limited to normal school hours.  The court may order a recess when the energy, comfort, or attention span of the child warrants;

  (4)  Upon motion made by the child, his or her representative, or any party to the judicial proceeding, at least thirty days in advance of the judicial proceeding, the court may allow the child to have a toy, blanket, or similar item in his or her possession while testifying, but such item shall only be allowed if:

  (a)  All parties agree; or

  (b)  If the movant shows the court by a preponderance of evidence that:

  a.  The child in question cannot reliably testify without the item in his or her possession; and

  b.  Allowing the item is not likely to prejudice the trier of fact in hearing and evaluating the child's testimony;

  (5)  Upon motion made by the child, his or her representative, or any party to the judicial proceeding, at least thirty days in advance of the judicial proceeding, the court may designate a support person, who shall be present in the courtroom, in view of the child witness.  The court may allow the support person to remain in close proximity to the child during the child's testimony, but such action shall only be allowed if:

  (a)  All parties agree; or

  (b)  If the movant shows the court by a preponderance of the evidence that:

  a.  The child in question cannot reliably testify without the support person in close proximity during the testimony; and

  b.  Allowing the support person to be in close proximity to the child during testimony is not likely to prejudice the trier of fact in hearing and evaluating the child's testimony.  

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The support person shall not obscure the child from the view of the defendant or the trier of fact.  A support person shall not provide the child with an answer to any question directed to the child during the course of the child's testimony or otherwise prompt the child or otherwise influence the testimony of the child.  If the support person attempts to influence or affect in any manner the testimony of the child victim or witness during the giving of testimony or at any other time, the court shall exclude that support person, refer the matter of misconduct of the support person to the prosecuting attorney, and designate an alternative support person;

  (6)  The court shall prevent intimidation or harassment of the child witness by the parties or their attorneys.  Insofar as it is consistent with the constitutional rights of the parties to confront and cross-examine adverse witnesses, the judge may rephrase any questions in order to prevent any such intimidation or harassment; and

  (7)  Upon its own motion or the motion of any party to the judicial proceeding, at least thirty days in advance of the judicial proceeding, the court may order such accommodations as are appropriate under the circumstances to ensure the comfort of the child victim or witness, including the following measures:

  (a)  Adjusting the layout of the courtroom;

  (b)  Conducting the proceedings outside the normal courtroom; or

  (c)  Relaxing the formalities of the proceedings;

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provided that, such measures are consistent with the rights of all parties under the constitution and laws of the United States and the state of Missouri.

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(L. 2009 H.B. 863)