Whereas, The deferred operation of this act would tend to defeat its purpose, which is to immediately establish alternative procedures for determining competency to testify and for taking testimony of a witness with mental retardation, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public convenience.
Be it enacted by the Senate and House of Representatives
in General Court assembled, and by the authority of the same,
Chapter 278 of the General Laws, as appearing in the 1992 Official Edition, is hereby amended by inserting after section 16D the following section:-
Section 16E. (a) For the purposes of this section, the following words shall have the following meanings unless the context clearly requires otherwise:
"Witness with mental retardation", a witness in a proceeding whom the presiding justice has found after hearing, as provided in paragraph (1) of subsection (b), to have mental retardation.
"Mental retardation", 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 mental retardation will testify, the court, on its own motion or on motion of the proponent of the witness with mental retardation and after hearing on the witness' competency to testify, may order the use of one of the alternative procedures for taking testimony of the witness with mental retardation as hereinafter described; 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 mental retardation 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 orders the use of an alternative procedure pursuant to this section, the court shall make and enter specific findings upon the record describing the reasons for such order.
(2) A judge who makes findings in accordance with paragraph (1), may order any of the following alternative procedures for determining the competency to testify or for taking the testimony of the witness with mental retardation:
(i) taking the testimony of the witness with mental retardation while permitting a person familiar to the witness, such as a family member, clinician, counselor, social worker or friend, to sit near or next to him;
(ii) taking the testimony of the witness with mental retardation in court but off the witness stand;
(iii) if the proceeding is a bench proceeding, taking the testimony of the witness with mental retardation in a setting familiar to the witness;
(iv) if the proceeding is a jury trial, videotaping the testimony, out of the presence of the jury or in a location chosen by the court or by agreement of the parties; or
(v) the procedure set forth in clause (i) in combination with clause (ii), (iii) or (iv).
(c) Testimony taken by a videotape pursuant to an order under paragraph 2 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) In a criminal proceeding, the defendant shall have the right to be present during the taking of the testimony, to have an unobstructed view of the witness with mental retardation, and to have the witness' view of the defendant be unobstructed.
(e) An order issued under clause iv of paragraph (2) of subsection (b) that the testimony of the witness with mental retardation be videotaped out of the presence of the jury shall provide that the videotape be shown in court to the jury in the presence of the judge, the parties, and the parties' counsel. At such courtroom showing, the audio portion of the video shall be entered into the record as would any oral testimony and shall be treated in all respects as oral testimony to the jury.
(f) The videotape or giving of testimony taken by an alternative procedure pursuant to an order issued under clause iv of paragraph (2) of subsection (b) shall be admissible as substantive evidence to the same extent as and in place of live testimony by the witness in any proceeding for which such order is issued, or in any related proceeding against the same party when consistent with the interests of justice; provided, however, that such order is entered or re-entered based on current findings at the time when, or within a reasonable time prior to, the offering of the videotape or testimony into evidence; and, provided further, that in the case of a related criminal proceeding, the requirements of subsection (d) were satisfied when the videotape was recorded or the alternative procedure was used.
(g) Whenever pursuant to an order issued under clause iv of paragraph (2) of subsection (b), testimony is recorded on videotape, the court shall ensure that:
(i) the recording equipment is capable of making an accurate recording and is operated by a competent operator;
(ii) the recording is in color and is taken in well-lit conditions;
(iii) the presence of the presiding judge, the attorneys, the defendant or parties, if in the room, and all other persons present, is stated on the recording;
(iv) the witness with mental retardation is visible at all times and, to the extent reasonably possible, the recording shows all persons present in the room as a jury would perceive them in open court;
(v) every voice on the recording is audible and identifiable;
(vi) the recording is accurate, undistorted in picture or sound quality, and has not been altered; and
(vii) each party is afforded an opportunity to view the recording before it is shown in the courtroom.
(h) The fact that the witness with mental retardation 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 the witness from testifying if he is found to be competent to testify, and shall not preclude a determination of competency to testify.
(i) The use of alternative procedures shall not be denied because they may take significantly more time than conventional procedures.
(j) Expert opinion shall be admissible at any hearing held pursuant to this section, including hearings to determine the competency of a witness with mental retardation to testify.
(k) Nothing in this section shall be construed to prohibit a court from using other appropriate means, consistent with this section and other general or special laws and with the defendant's rights, to protect a witness with mental retardation from trauma during a court proceeding.