National Conference of Commissioners on Uniform State Laws

211 E. Ontario St., Suite 1300, Chicago, IL 60611
tel 312-915-0195, fax 312-915-0187

For Immediate Release

NEW ACT ON CHILD WITNESSES COMPLETED
Uniform Act Provides Alternative Methods for Taking Child Testimony

August 5, 2002 — States have used alternative methods for taking testimony of child witnesses for many years, the most common being the use of closed-circuit television testimony and videotaped depositions. However, state statutes governing the use of alternative methods vary among the states. They differ in the types of methods that may be used and in their procedural rules, including which factors may be considered by a court before allowing the use of alternative methods and who is authorized to be present with the child witness. In addition, most existing state statutes apply only in criminal proceedings involving physical or sexual abuse.

To bring uniformity to this important area of the law, the National Conference of Commissioners on Uniform State Laws (NCCUSL) approved a new act that deals solely with the issues of child witness testimony. The Uniform Child Witness Testimony by Alternative Methods Act provides procedures in the methods of taking the testimony of children in both criminal and non-criminal proceedings, permitting a child to testify outside the courtroom and the immediate presence of a criminal defendant. This act was approved by NCCUSL at its 111th Annual Meeting, just concluded in Tucson, Arizona.

The Uniform Act is broader than most of the existing state statutes by including both criminal and non-criminal proceedings. The Act also provides the standards for a court to determine when it is appropriate to take child testimony by alternative methods. In a criminal proceeding, the court must find by "clear and convincing evidence" that the child witness will suffer serious emotional trauma, impairing the child's ability to communicate, if required to testify inside the hearing room or in front of the criminal defendant. In a non-criminal proceeding, the court must find by a "preponderance of the evidence" that an alternative method is needed to protect the best interests of the child.

If a court finds that it is necessary to use an alternative method, the court must list certain conditions, including the method by which the testimony is to be taken and a list of persons allowed to be present during the testimony.

The Act allows for cross-examination of child witnesses, stating that "an alternative method ordered by the presiding officers must permit a full and fair opportunity for examination and cross-examination of the child witness." This preserves the right of defendants in criminal proceedings, while at the same time providing for a relaxation of the standard in non-criminal proceedings, such as custody and visitation proceedings.

The drafting committee on the Uniform Child Witness Testimony by Alternative Methods Act was chaired by C. Arlen Beam of Lincoln, Nebraska. Other committee members include: Robert H. Aronson, Seattle, Washington; Rhoda B. Billings, Winston-Salem, North Carolina; W. Grant Callow, Anchorage, Alaska; Samuel M. Davis, University, Mississippi; Charles W. Ehrhardt, Tallahassee, Florida; Michael B. Getty, Chicago, Illinois; Shaun P. Haas, Madison, Wisconsin; Harry L. Tindall, Houston, Texas; and D. Joe Willis, Portland, Oregon. Leo H. Whinery of Norman, Oklahoma, served as the committee's reporter.

The National Conference of Commissioners on Uniform State Laws is now in its 111th year. The organization comprises more than 300 lawyers, judges, and law professors, appointed by the states as well as the District of Columbia, Puerto Rico, and the U.S. Virgin Islands, to draft proposals for uniform and model laws and work toward their enactment in their legislatures. Since its inception in 1892, the group has promulgated more than 200 acts, among them such bulwarks of state statutory law as the Uniform Commercial Code, the Uniform Probate Code, and the Uniform Partnership Act.

For further information, please contact John McCabe or Katie Robinson at 312-915-0195, or Gabrielle Bamberger at 212-333-5222.