2019 New York Laws
CPL - Criminal Procedure
Part 1 - General Provisions
Title D - Rules of Evidence, Standards of Proof and Related Matters
Article 65 - Use of Closed-Circuit Television for Certain Child Witnesses
65.20 - Closed-Circuit Television; Procedure for Application and Grounds for Determination.
* § 65.20 Closed-circuit television; procedure for application and
grounds for determination.
1. Prior to the commencement of a criminal proceeding; other than a
grand jury proceeding, either party may apply to the court for an order
declaring that a child witness is vulnerable.
2. A child witness should be declared vulnerable when the court, in
accordance with the provisions of this section, determines by clear and
convincing evidence that the child witness would suffer serious mental
or emotional harm that would substantially impair the child witness'
ability to communicate with the finder of fact without the use of live,
two-way closed-circuit television.
3. A motion pursuant to subdivision one of this section must be made
in writing at least eight days before the commencement of trial or other
criminal proceeding upon reasonable notice to the other party and with
an opportunity to be heard.
4. The motion papers must state the basis for the motion and must
contain sworn allegations of fact which, if true, would support a
determination by the court that the child witness is vulnerable. Such
allegations may be based upon the personal knowledge of the deponent or
upon information and belief, provided that, in the latter event, the
sources of such information and the grounds for such belief are stated.
5. The answering papers may admit or deny any of the alleged facts and
may, in addition, contain sworn allegations of fact relevant to the
motion, including the rights of the defendant, the need to protect the
child witness and the integrity of the truth-finding function of the
trier of fact.
6. Unless all material facts alleged in support of the motion made
pursuant to subdivision one of this section are conceded, the court
shall, in addition to examining the papers and hearing oral argument,
conduct an appropriate hearing for the purpose of making findings of
fact essential to the determination of the motion. Except as provided in
subdivision six of this section, it may subpoena or call and examine
witnesses, who must either testify under oath or be permitted to give
unsworn testimony pursuant to subdivision two of section 60.20 and must
authorize the attorneys for the parties to do the same.
7. Notwithstanding any other provision of law, the child witness who
is alleged to be vulnerable may not be compelled to testify at such
hearing or to submit to any psychological or psychiatric examination.
The failure of the child witness to testify at such hearing shall not be
a ground for denying a motion made pursuant to subdivision one of this
section. Prior statements made by the child witness relating to any
allegations of conduct constituting an offense defined in article one
hundred thirty of the penal law or incest as defined in section 255.25,
255.26 or 255.27 of such law or to any allegation of words or conduct
constituting an attempt to prevent, impede or deter the child witness
from cooperating in the investigation or prosecution of the offense
shall be admissible at such hearing, provided, however, that a
declaration that a child witness is vulnerable may not be based solely
upon such prior statements.
8. (a) Notwithstanding any of the provisions of article forty-five of
the civil practice law and rules, any physician, psychologist, nurse or
social worker who has treated a child witness may testify at a hearing
conducted pursuant to subdivision five of this section concerning the
treatment of such child witness as such treatment relates to the issue
presented at the hearing, provided that any otherwise applicable
statutory privileges concerning communications between the child witness
and such physician, psychologist, nurse or social worker in connection
with such treatment shall not be deemed waived by such testimony alone,
except to the limited extent of permitting the court alone to examine in
camera reports, records or documents, if any, prepared by such
physician, psychologist, nurse or social worker. If upon such
examination the court determines that such reports, records or
documents, or any one or portion thereof, contain information material
and relevant to the issue of whether the child witness is a vulnerable
child witness, the court shall disclose such information to both the
attorney for the defendant and the district attorney. (b) At any time after a motion has been made pursuant to subdivision
one of this section, upon the demand of the other party the moving party
must furnish the demanding party with a copy of any and all of such
records, reports or other documents in the possession of such other
party and must, in addition, supply the court with a copy of all such
reports, records or other documents which are the subject of the demand.
At any time after a demand has been made pursuant to this paragraph, the
moving party may demand that property of the same kind or character in
possession of the party that originally made such demand be furnished to
the moving party and, if so furnished, be supplied, in addition, to the
court.
* 9. (a) Prior to the commencement of the hearing conducted pursuant
to subdivision five of this section, the district attorney shall,
subject to a protective order, comply with the provisions of subdivision
one of section 240.45 of this chapter as they concern any witness whom
the district attorney intends to call at the hearing and the child
witness.
(b) Before a defendant calls a witness at such hearing, he or she
must, subject to a protective order, comply with the provisions of
subdivision two of section 240.45 of this chapter as they concern all
the witnesses the defendant intends to call at such hearing.
* NB Effective until January 1, 2020
* 9. (a) Prior to the commencement of the hearing conducted pursuant
to subdivision six of this section, the district attorney shall, subject
to a protective order, comply with the provisions of subdivision one of
section 245.20 of this chapter as they concern any witness whom the
district attorney intends to call at the hearing and the child witness.
(b) Before a defendant calls a witness at such hearing, he or she
must, subject to a protective order, comply with the provisions of
subdivision four of section 245.20 of this chapter as they concern all
the witnesses the defendant intends to call at such hearing.
* NB Effective January 1, 2020
10. The court may consider, in determining whether there are factors
which would cause the child witness to suffer serious mental or
emotional harm, a finding that any one or more of the following
circumstances have been established by clear and convincing evidence:
(a) The manner of the commission of the offense of which the defendant
is accused was particularly heinous or was characterized by aggravating
circumstances.
(b) The child witness is particularly young or otherwise particularly
subject to psychological harm on account of a physical or mental
condition which existed before the alleged commission of the offense.
(c) At the time of the alleged offense, the defendant occupied a
position of authority with respect to the child witness.
(d) The offense or offenses charged were part of an ongoing course of
conduct committed by the defendant against the child witness over an
extended period of time.
(e) A deadly weapon or dangerous instrument was allegedly used during
the commission of the crime.
(f) The defendant has inflicted serious physical injury upon the child
witness.
(g) A threat, express or implied, of physical violence to the child
witness or a third person if the child witness were to report the
incident to any person or communicate information to or cooperate with a
court, grand jury, prosecutor, police officer or peace officer
concerning the incident has been made by or on behalf of the defendant.
(h) A threat, express or implied, of the incarceration of a parent or
guardian of the child witness, the removal of the child witness from the
family or the dissolution of the family of the child witness if the
child witness were to report the incident to any person or communicate
information to or cooperate with a court, grand jury, prosecutor, police
officer or peace officer concerning the incident has been made by or on
behalf of the defendant.
(i) A witness other than the child witness has received a threat of
physical violence directed at such witness or to a third person by or on
behalf of the defendant.
(j) The defendant, at the time of the inquiry, (i) is living in the
same household with the child witness, (ii) has ready access to the
child witness or (iii) is providing substantial financial support for
the child witness.
(k) The child witness has previously been the victim of an offense
defined in article one hundred thirty of the penal law or incest as
defined in section 255.25, 255.26 or 255.27 of such law.
(l) According to expert testimony, the child witness would be
particularly suceptible to psychological harm if required to testify in
open court or in the physical presence of the defendant.
11. Irrespective of whether a motion was made pursuant to subdivision
one of this section, the court, at the request of either party or on its
own motion, may decide that a child witness may be vulnerable based on
its own observations that a child witness who has been called to testify
at a criminal proceeding is suffering severe mental or emotional harm
and therefore is physically or mentally unable to testify or to continue
to testify in open court or in the physical presence of the defendant
and that the use of live, two-way closed-circuit television is necessary
to enable the child witness to testify. If the court so decides, it must
conduct the same hearing that subdivision five of this section requires
when a motion is made pursuant to subdivision one of this section, and
it must make findings of fact pursuant to subdivisions nine and eleven
of this section, before determining that the child witness is
vulnerable.
12. In deciding whether a child witness is vulnerable, the court shall
make findings of fact which reflect the causal relationship between the
existence of any one or more of the factors set forth in subdivision
nine of this section or other relevant factors which the court finds are
established and the determination that the child witness is vulnerable.
If the court is satisfied that the child witness is vulnerable and that,
under the facts and circumstances of the particular case, the
defendant's constitutional rights to an impartial jury or of
confrontation will not be impaired, it may enter an order granting the
application for the use of live, two-way closed-circuit television.
13. When the court has determined that a child witness is a vulnerable
child witness, it shall make a specific finding as to whether placing
the defendant and the child witness in the same room during the
testimony of the child witness will contribute to the likelihood that
the child witness will suffer severe mental or emotional harm. If the
court finds that placing the defendant and the child witness in the same
room during the testimony of the child witness will contribute to the
likelihood that the child witness will suffer severe mental or emotional
harm, the order entered pursuant to subdivision eleven of this section
shall direct that the defendant remain in the courtroom during the
testimony of the vulnerable child witness.
* NB Repealed September 1, 2020
