§ 15A-1225.2. Witnesses with developmental disabilities or mental retardation; remote testimony.
§ 15A‑1225.2. Witnesseswith developmental disabilities or mental retardation; remote testimony.
(a) Definitions. Thefollowing definitions apply to this section:
(1) The definitions setout in G.S. 122C‑3.
(2) "Remotetestimony" means a method by which a witness testifies outside of an openforum and outside of the physical presence of a party or parties.
(b) Remote TestimonyAuthorized. A person with a developmental disability or a person with mentalretardation who is competent to testify may testify by remote testimony in aprosecution of a person charged with violating a criminal law of this State andin any hearing or proceeding conducted under Subchapter II of Chapter 7B of theGeneral Statutes where a juvenile is alleged to have committed an offense thatwould be a criminal offense if committed by an adult if the court determines byclear and convincing evidence that the witness would suffer serious emotionaldistress from testifying in the presence of the defendant and that the abilityof the witness to communicate with the trier of fact would be impaired bytestifying in the presence of the defendant.
(c) Hearing Procedure. Upon motion of a party or the court's own motion, and for good cause shown,the court shall hold an evidentiary hearing to determine whether to allowremote testimony. The hearing shall be recorded unless recordation is waived byall parties. The presence of the witness is not required at the hearing unlessso ordered by the presiding judge.
(d) Order. An orderallowing or disallowing the use of remote testimony shall state the findingsand conclusions of law that support the court's determination. An orderallowing the use of remote testimony also shall do all of the following:
(1) State the method bywhich the witness is to testify.
(2) List any individualor category of individuals allowed to be in or required to be excluded from thepresence of the witness during testimony.
(3) State any specialconditions necessary to facilitate the cross‑examination of the witness.
(4) State any conditionor limitation upon the participation of individuals in the presence of thewitness during the testimony.
(5) State any otherconditions necessary for taking or presenting testimony.
(e) Testimony. Themethod of remote testimony shall allow the trier of fact and all parties toobserve the demeanor of the witness as the witness testifies in a similarmanner as if the witness were testifying in the open forum. The court shallensure that the counsel for all parties, except a pro se defendant, isphysically present where the witness testifies and has a full and fairopportunity for examination and cross‑examination of the witness. Thecourt shall ensure that the defendant or juvenile respondent has the ability tocommunicate privately with defense counsel during the remote testimony. A partymay waive the right to have counsel physically present where the witnesstestifies. Nothing in this section shall be construed to limit the provisionsof G.S. 15A‑1225.
(f) NonexclusiveProcedure and Standard. Nothing in this section shall prohibit the use orapplication of any other method or procedure authorized or required by law forthe introduction into evidence of statements or testimony of a person with adevelopmental disability or a person with mental retardation. (2009‑514, s. 2.)