§ 2945.482 — Taking testimony of a victim with a developmental disability

Ohio § 2945.482

• Jurisdiction: Ohio
• Title 29: Crimes-Procedure
• Ch. 2945: Trial

Text

(A) As used in this section:

(1) "Developmental disability" has the same meaning as in section5123.01of the Revised Code.

(2) "Victim with a developmental disability" includes a person with a developmental disability who was a victim of a violation identified in division (B)(1) of this section or an offense of violence or against whom was directed any conduct that constitutes, or that is an element of, a violation identified in division (B)(1) of this section or an offense of violence.

(B)(1)(a) In any proceeding in the prosecution of a charge of a violation of section2903.16,2903.34,2903.341,2905.03,2907.02,2907.03,2907.05,2907.06,2907.09,2907.21,2907.23,2907.24,2907.32,2907.321,2907.322, or2907.323of the Revised Code or an offense of violence and in which an alleged victim of the violation or offense was a person with a developmental disability, the judge of the court in which the prosecution is being conducted, upon motion of a victim, victim's attorney, or an attorney for the prosecution, shall order that the testimony of the victim with a developmental disability be taken by deposition. The prosecution, victim, or victim's attorney also may request that the deposition be recorded in accordance with division (B)(2) of this section.

(b) In any proceeding that is not otherwise eligible for the protections provided for in division (B)(1)(a) of this section and in which an alleged victim of the violation or act was a person with a developmental disability, upon motion of the prosecution, the victim, or the victim's attorney, if applicable, and a showing by a preponderance of the evidence that the victim will suffer serious emotional trauma if required to provide live trial testimony, the judge of the court in which the prosecution is being conducted shall order that the testimony of the victim with a developmental disability be taken by deposition. The prosecution, the victim, or the victim's attorney, if applicable, also may request that the deposition be recorded in accordance with division (B)(2) of this section.

(c) The judge shall notify the victim with a developmental disability whose deposition is to be taken, the victim's attorney, if applicable, the prosecution, and the defense of the date, time, and place for taking the deposition. The notice shall identify the victim with a developmental disability, in a manner consistent with section2930.07of the Revised Code, who is to be examined and shall indicate whether a request that the deposition be recorded has been made. The defendant shall have the right to attend the deposition and the right to be represented by counsel. Depositions shall be taken in the manner provided in civil cases, except that the judge shall preside at the taking of the deposition and shall rule at the time on any objections of the prosecution or the attorney for the defense. The prosecution and the attorney for the defense shall have the right, as at trial, to full examination and cross-examination of the victim with a developmental disability whose deposition is to be taken. If a deposition taken under this division is intended to be offered as evidence in the proceeding, it shall be filed in the court in which the action is pending and is admissible in the manner described in division (C) of this section.

If a deposition of a victim with a developmental disability taken under this division is admitted as evidence at the proceeding under division (C) of this section, the victim with a developmental disability shall not be required to testify in person at the proceeding.

At any time before the conclusion of the proceeding, the attorney for the defense may file a motion with the judge requesting that another deposition of the victim with a developmental disability be taken because new evidence material to the defense has been discovered that the attorney for the defense could not with reasonable diligence have discovered prior to the taking of the admitted deposition. If the court orders the taking of another deposition under this provision, the deposition shall be taken in accordance with this division. If the admitted deposition was a recorded deposition taken in accordance with division (B)(2) of this section, the new deposition shall be recorded in accordance with that division. In other cases, the new deposition may be recorded in accordance with that division.

(2) If the prosecution, victim, or victim's attorney, if applicable, requests that a deposition to be taken under division (B)(2) of this section be recorded, the judge shall order that the deposition be recorded in accordance with this division. If a judge issues an order that the deposition be recorded, the judge shall exclude from the room in which the deposition is to be taken every person except the victim with a developmental disability giving the testimony, the judge, one or more interpreters if needed, the attorneys for the prosecution and the defense, the victim's attorney, if applicable, the victim's representative, if applicable, any person needed to operate the equipment to be used, one person chosen by the victim with a developmental disability giving the deposition, and any person whose presence the judge determines would contribute to the welfare and well-being of the victim with a developmental disability giving the deposition. The person chosen by the victim with a developmental disability shall not be a witness in the proceeding and, both before and during the deposition, shall not discuss the testimony of the victim with a developmental disability with any other witness in the proceeding. To the extent feasible, any person operating the recording equipment shall be restricted to a room adjacent to the room in which the deposition is being taken, or to a location in the room in which the deposition is being taken that is behind a screen or mirror, so that the person operating the recording equipment can see and hear, but cannot be seen or heard by, the victim with a developmental disability giving the deposition during the deposition.

The defendant shall be permitted to observe and hear the testimony of the victim with a developmental disability giving the deposition on a monitor, shall be provided with an electronic means of immediate communication with the defendant's attorney during the testimony, and shall be restricted to a location from which the defendant cannot be seen or heard by the victim with a developmental disability giving the deposition, except on a monitor provided for that purpose. The victim with a developmental disability giving the deposition shall be provided with a monitor on which the victim can observe, during the testimony, the defendant. The judge, at the judge's discretion, may preside at the deposition by electronic means from outside the room in which the deposition is to be taken. If the judge presides by electronic means, the judge shall be provided with monitors on which the judge can see each person in the room in which the deposition is to be taken and with an electronic means of communication with each person, and each person in the room shall be provided with a monitor on which that person can see the judge and with an electronic means of communication with the judge. A deposition that is recorded under this division shall be taken and filed in the manner described in division (B)(1) of this section and is admissible in the manner described in this division and division (C) of this section, and, if a deposition that is recorded under this division is admitted as evidence at the proceeding, the victim with a developmental disability shall not be required to testify in person at the proceeding. No deposition recorded under this division shall be admitted as evidence at any proceeding unless division (C) of this section is satisfied relative to the deposition and all of the following apply relative to the recording:

(a) The recording is both aural and visual and is recorded on film or videotape, or by other electronic means.

(b) The recording is authenticated under the Rules of Evidence and the Rules of Criminal Procedure as a fair and accurate representation of what occurred, and the recording is not altered other than at the direction and under the supervision of the judge in the proceeding.

(c) Each voice on the recording that is material to the testimony on the recording or the making of the recording, as determined by the judge, is identified.

(d) Both the prosecution and the defendant are afforded an opportunity to view the recording before it is shown in the proceeding.

(C)(1) At any proceeding in a prosecution in relation to which a deposition was taken under division (B) of this section, the deposition or a part of it is admissible in evidence upon motion of the prosecution, victim, or victim's attorney, if applicable, if the testimony in the deposition or the part to be admitted is not excluded by the hearsay rule and if the deposition or the part to be admitted otherwise is admissible under the Rules of Evidence. For purposes of this division, testimony is not excluded by the hearsay rule if the testimony is not hearsay under Evidence Rule 801; the testimony is within an exception to the hearsay rule set forth in Evidence Rule 803; the victim with a developmental disability who gave the testimony is unavailable as a witness, as defined in Evidence Rule 804, and the testimony is admissible under that rule; or both of the following apply:

(a) The defendant had an opportunity and similar motive at the time of the taking of the deposition to develop the testimony by direct, cross, or redirect examination.

(b) The judge determines that there is reasonable cause to believe that, if the victim with a developmental disability who gave the testimony in the deposition were to testify in person at the proceeding, the victim with a developmental disability would experience serious emotional trauma as a result of the participation of the victim with a developmental disability at the proceeding.

(2) Objections to receiving in evidence a deposition or a part of it under division (C) of this section shall be made as provided in civil actions.

(3) The provisions of divisions (B) and (C) of this section are in addition to any other provisions of the Revised Code, the Rules of Criminal Procedure, or the Rules of Evidence that pertain to the taking or admission of depositions in a criminal proceeding and do not limit the admissibility under any of those other provisions of any deposition taken under division (B) of this section or otherwise taken.

(D)(1)(a) In any proceeding in the prosecution of any charge of a violation listed in division (B)(1) of this section or an offense of violence and in which an alleged victim of the violation or offense was a person with a developmental disability, the judge, upon motion of the prosecution, victim, or victim's attorney, shall order the testimony of the victim with a developmental disability to be taken in a room other than the room in which the proceeding is being conducted and be broadcast into the room in which the proceeding is being conducted to be viewed by the jury, if applicable, the defendant, and any other persons who are not permitted in the room in which the testimony is to be taken but who would have been present during the testimony of the victim with a developmental disability had it been given in the room in which the proceeding is being conducted.

(b) In any proceeding that is not otherwise eligible for the protections provided for in division (D)(1)(a) of this section and in which an alleged victim of the violation or act was a person with a developmental disability, upon motion of the prosecution, the victim, or the victim's attorney, if applicable, and a showing by a preponderance of the evidence that the victim will suffer serious emotional trauma if required to provide live trial testimony, the judge shall order the testimony be taken in a room other than the room in which the proceeding is being conducted and broadcast into the room in which the proceeding is being conducted to be viewed by the jury, if applicable, the defendant, and any other persons who are not permitted in the room in which the testimony is to be taken but who would have been present during the testimony of the victim with a developmental disability had it been given in the room in which the proceeding is being conducted.

(2) Except for good cause shown, the prosecution, victim, or victim's attorney, if applicable, shall file a motion under this division at least seven days before the date of the proceeding. The judge may issue the order upon the motion of the prosecution filed under this section, if the judge determines that the victim with a developmental disability is unavailable to testify in the room in which the proceeding is being conducted in the physical presence of the defendant for one or more of the reasons set forth in division (F) of this section. If a judge issues an order of that nature, the judge shall exclude from the room in which the testimony is to be taken every person except a person described in division (B)(2) of this section. The judge, at the judge's discretion, may preside during the giving of the testimony by electronic means from outside the room in which it is being given, subject to the limitations set forth in division (B)(2) of this section. To the extent feasible, any person operating the televising equipment shall be hidden from the sight and hearing of the victim with a developmental disability giving the testimony, in a manner similar to that described in division (B)(2) of this section. The defendant shall be permitted to observe and hear the testimony of the victim with a developmental disability giving the testimony on a monitor, shall be provided with an electronic means of immediate communication with the defendant's attorney during the testimony, and shall be restricted to a location from which the defendant cannot be seen or heard by the victim with a developmental disability giving the testimony, except on a monitor provided for that purpose. The victim with a developmental disability giving the testimony shall be provided with a monitor on which the victim with a developmental disability can observe, during the testimony, the defendant.

(E)(1)(a) In any proceeding in the prosecution of any charge of a violation listed in division (B)(1) of this section or an offense of violence and in which an alleged victim of the violation or offense was a victim with a developmental disability, the judge, upon motion of the prosecution, victim, or victim's attorney, shall order the testimony of the victim with a developmental disability to be taken outside of the room in which the proceeding is being conducted and be recorded for showing in the room in which the proceeding is being conducted before the judge, the jury, if applicable, the defendant, and any other persons who would have been present during the testimony of the victim with a developmental disability had it been given in the room in which the proceeding is being conducted.

(b) In any proceeding that is not otherwise eligible for the protections provided for in division (E)(1)(a) of this section and in which an alleged victim of the violation or act was a person with a developmental disability, upon motion of the prosecution, the victim, or the victim's attorney, if applicable, and a showing by a preponderance of the evidence that the victim will suffer serious emotional trauma if required to provide live trial testimony, the judge shall order the testimony be taken outside of the room in which the proceeding is being conducted and be recorded for showing in the room in which the proceeding is being conducted before the judge, the jury, if applicable, the defendant, and any other persons who would have been present during the testimony of the victim with a developmental disability had it been given in the room in which the proceeding is being conducted.

(2) Except for good cause shown, the prosecution, victim, or victim's attorney, if applicable, shall file a motion under this division at least seven days before the date of the proceeding. The judge may issue the order upon the motion of the prosecution filed under this division, if the judge determines that the victim with a developmental disability is unavailable to testify in the room in which the proceeding is being conducted in the physical presence of the defendant, for one or more of the reasons set forth in division (F) of this section. If a judge issues an order of that nature, the judge shall exclude from the room in which the testimony is to be taken every person except a person described in division (B)(2) of this section. To the extent feasible, any person operating the recording equipment shall be hidden from the sight and hearing of the victim with a developmental disability giving the testimony, in a manner similar to that described in division (B)(2) of this section. The defendant shall be permitted to observe and hear the testimony of the victim with a developmental disability who is giving the testimony on a monitor, shall be provided with an electronic means of immediate communication with the defendant's attorney during the testimony, and shall be restricted to a location from which the defendant cannot be seen or heard by the victim with a developmental disability giving the testimony, except on a monitor provided for that purpose. The victim with a developmental disability giving the testimony shall be provided with a monitor on which the victim can observe, during the testimony, the defendant. No order for the taking of testimony by recording shall be issued under this division unless the provisions set forth in divisions (B)(2)(a), (b), (c), and (d) of this section apply to the recording of the testimony.

(F) For purposes of divisions (D) and (E) of this section, a judge may order the testimony of a victim with a developmental disability to be taken outside the room in which the proceeding is being conducted if the judge determines that the victim with a developmental disability is unavailable to testify in the room in the physical presence of the defendant due to one or more of the following:

(1) The persistent refusal of the victim with a developmental disability to testify despite judicial requests to do so;

(2) The inability of the victim with a developmental disability to communicate about the alleged violation or offense because of extreme fear, failure of memory, or another similar reason;

(3) The substantial likelihood that the victim with a developmental disability will suffer serious emotional trauma from so testifying.

(G)(1) If a judge issues an order pursuant to division (D) or (E) of this section that requires the testimony of a victim with a developmental disability in a criminal proceeding to be taken outside of the room in which the proceeding is being conducted, the order shall specifically identify the victim with a developmental disability, in a manner consistent with section2930.07of the Revised Code, to whose testimony it applies, the order applies only during the testimony of the specified victim with a developmental disability, and the victim with a developmental disability giving the testimony shall not be required to testify at the proceeding other than in accordance with the order.

(2) A judge who makes any determination regarding the admissibility of a deposition under divisions (B) and (C) of this section, the recording of a deposition under division (B)(2) of this section, or the taking of testimony outside of the room in which a proceeding is being conducted under division (D) or (E) of this section shall enter the determination and findings on the record in the proceeding.

Last updated September 7, 2023 at 12:56 PM

Legislative History

Effective: July 7, 2023 | Latest Legislation: Senate Bill 16 - 135th General Assembly