Section 492.304

Title XXXIII EVIDENCE AND LEGAL ADVERTISEMENTS

Chapter 492

Effective - 28 Aug 2004   

  492.304.  Visual and aural recordings of child under fourteen admissible, when. — 1.  In addition to the admissibility of a statement under the provisions of section 492.303, the visual and aural recording of a verbal or nonverbal statement of a child when under the age of fourteen who is alleged to be a victim of an offense under the provisions of chapter 565, 566 or 568 is admissible into evidence if:

  (1)  No attorney for either party was present when the statement was made; except that, for any statement taken at a state-funded child assessment center as provided for in subsection 2 of section 210.001, an attorney representing the state of Missouri in a criminal investigation may, as a member of a multidisciplinary investigation team, observe the taking of such statement, but such attorney shall not be present in the room where the interview is being conducted;

  (2)  The recording is both visual and aural and is recorded on film or videotape or by other electronic means;

  (3)  The recording equipment was capable of making an accurate recording, the operator of the equipment was competent, and the recording is accurate and has not been altered;

  (4)  The statement was not made in response to questioning calculated to lead the child to make a particular statement or to act in a particular way;

  (5)  Every voice on the recording is identified;

  (6)  The person conducting the interview of the child in the recording is present at the proceeding and available to testify or be cross-examined by either party; and

  (7)  The defendant or the attorney for the defendant is afforded an opportunity to view the recording before it is offered into evidence.

  2.  If the child does not testify at the proceeding, the visual and aural recording of a verbal or nonverbal statement of the child shall not be admissible under this section unless the recording qualifies for admission under section 491.075.

  3.  If the visual and aural recording of a verbal or nonverbal statement of a child is admissible under this section and the child testifies at the proceeding, it shall be admissible in addition to the testimony of the child at the proceeding whether or not it repeats or duplicates the child's testimony.

  4.  As used in this section, a nonverbal statement shall be defined as any demonstration of the child by his or her actions, facial expressions, demonstrations with a doll or other visual aid whether or not this demonstration is accompanied by words.

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(L. 1985 H.B. 366, et al., A.L. 1992 S.B. 638, A.L. 2004 H.B. 1453)

(1987) It was improper enhancement for the prosecution to introduce a videotape pursuant to this section and then call the child whose testimony was videotaped to the stand to give testimony covering all the elements of the case including elements covered in videotaped testimony has been introduced to stand pursuant to subsection 2 of this section thus limited. State v. Seever, 733 S.W.2d 438 (Mo.banc.).

(1991) Statute which permits the introduction of videotaped recording of statement of child sex-abuse victim does not violate defendant's right to due process. Sixth Amendment right of confrontation is satisfied because the statute requires that the child witness be available to testify at trial, under oath, and subject to the fact finder's observation of demeanor. State v. Schaal, 806 S.W.2d 659 (Mo.banc).