§ 23E — Alternative procedure for determining competency of witnesses with an intellectual disability

Section 23E. (a) For the purposes of this section, the following words shall have the following meanings, unless the context clearly requires otherwise:—''Witnesses with an intellectual disability'', a witness in a proceeding whom the presiding justice has found after hearing, as provided in paragraph (1) of subsection (b), to have an intellectual disability.''Intellectual disability'', substantial limitations in present functioning manifesting before age eighteen and characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure and work.(b)(1) In any judicial proceeding in which a witness with an intellectual disability will testify, the court, on its own motion or on motion of the proponent of the witness with an intellectual disability and after hearing on the witness's competency to testify, may order the use of alternative procedures for taking testimony of the witness with an intellectual disability; provided, however, that the court finds at the time of the order, by clear and convincing evidence in the case of a criminal proceeding, and by a preponderance of the evidence in the case of a noncriminal proceeding, that the witness with an intellectual disability is likely, as a result of submitting to usual procedures for determining competency or as a result of testifying in open court, as the case may be, (i) to suffer severe psychological or emotional trauma; or (ii) to suffer a temporary loss of or regression in cognitive or behavioral functioning or communicative abilities, such that his ability to testify will be significantly impaired. If the court so finds, the court may order the use of alternative procedures for determining competency to testify or for taking testimony of the witness with an intellectual disability including, but not limited to, the following:(i) permitting a person familiar to the witness, such as a family member, clinician, counselor, social worker or friend, to sit near or next to such witness;(ii) permitting the witness with mental retardation to testify in court but off the witness stand; provided, however, that if the proceeding is a bench proceeding, testimony may be taken at another location within the courthouse but outside the courtroom; and, provided further, that if the proceeding is a jury trial, testimony may be taken on videotape out of the presence of the jury or in a location chosen by the court or by agreement of the parties; or(iii) combining alternative procedures provided in clauses (i) and (ii).(c) When the proceedings are not criminal or juvenile delinquency related, testimony taken by videotape pursuant to an order under paragraph (1) of subsection (b) shall be taken in the presence of the judge, counsel for all parties and such other persons as the court may allow. Counsel shall be given the opportunity to examine or cross-examine the witness with mental retardation to the same extent as he would be permitted if ordinary procedures had been followed.(d) When the proceedings are criminal or juvenile delinquency related, the defendant shall have the right to be present during the taking of the testimony, to have an unobstructed view of the witness with an intellectual disability, and to have the witness's view of the defendant be unobstructed.(e) If the court orders that the testimony of the witness with an intellectual disability be videotaped out of the presence of the jury, the videotape shall be shown in court to the jury in the presence of the judge, the parties and the parties' counsel. The videotape shall be marked as an exhibit and retained by the court as part of the record of the case.(f) Testimony taken by alternative procedures authorized by this section shall be admissible as substantive evidence to the same extent as and in lieu of live testimony by the witness in any proceeding in which such testimony is taken.(g) The witness requesting that testimony be taken by videotape shall bear the responsibility of producing an acceptable videotape of the testimony. The commonwealth shall reimburse such witness for reasonable costs of producing such videotape. Each party shall be afforded an opportunity to view the recording before it is shown in the courtroom.(h) The fact that the witness with an intellectual disability has been found in a court proceeding to be incompetent to make informed decisions of a personal, medical or financial nature or that he is under a guardianship or conservatorship shall not preclude such witness from testifying if he is found to be competent to testify and shall not preclude a determination of competency to testify.(i) A witness shall not be denied the benefit of appropriate alternative procedures provided by this section and the court shall allow such additional time or continuances to permit application of such procedures.(j) A person with expertise in persons with an intellectual disability may be called by the proponent of the witness to testify in all relevant matters, including the competency determination of such witness.(k) Nothing in this section shall be construed to prohibit a court from using other appropriate means consistent with this section and any other general or special law and with the defendant's rights to accomplish the purposes of this section.