(1) Child. - For the purposes of this section, a minor who is under the age of 16 years old at the time of the testimony.
(2) Criminal proceeding. - Any hearing or trial in a prosecution of a person charged with violating a criminal law of this State, and any hearing or proceeding conducted under Subchapter II of Chapter 7B of the General Statutes where a juvenile is alleged to have committed an offense that would be a criminal offense if committed by an adult.
(3) Remote testimony. - A method by which a child witness testifies in a criminal proceeding outside of the physical presence of the defendant.
(b) Remote Testimony Authorized. - In a criminal proceeding, a child witness who has been found competent to testify may testify, under oath or affirmation, other than in an open forum when the court determines:
(1) That the child witness would suffer serious emotional distress, not by the open forum in general, but by testifying in the defendant's presence, and
(2) That the child's ability to communicate with the trier of fact would be impaired.
(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 allow remote testimony. Hearings in the superior court division, and hearings conducted under Subchapter II of Chapter 7B of the General Statutes, shall be recorded. The presence of the child witness is not required at the hearing unless ordered by the presiding judge.
(d) Order. - An order allowing or disallowing the use of remote testimony shall state the findings of fact and conclusions of law that support the court's determination. An order allowing the use of remote testimony shall do the following:
(1) State the method by which the child is to testify.
(2) List any individual or category of individuals allowed to be in, or required to be excluded from, the presence of the child during the testimony.
(3) State any special conditions necessary to facilitate the cross-examination of the child.
(4) State any condition or limitation upon the participation of individuals in the child's presence during his or her testimony.
(5) State any other condition necessary for taking or presenting the testimony.
(e) Testimony. - The method used for remote testimony shall allow the judge, jury, and defendant or juvenile respondent to observe the demeanor of the child as the child testifies in a similar manner as if the child were in the open forum. The court shall ensure that the defense counsel, except a pro se defendant, is physically present where the child testifies, has a full and fair opportunity for cross-examination of the child witness, and has the ability to communicate privately with the defendant or juvenile respondent during the remote testimony. Nothing in this section shall be construed to limit the provisions of G.S. 15A-1225.
(f) Nonexclusive Procedure and Standard. - Nothing in this section shall:
(1) Prohibit the use or application of any other method or procedure authorized or required by statute, common law, or rule for the introduction into evidence of the statements or testimony of a child in a criminal or noncriminal proceeding.
(2) Be construed to require a court, in noncriminal proceedings, to apply the standard set forth in subsection (b) of this section, or to deviate from a standard or standards authorized by statute, common law, or rule, for allowing the use of remote testimony in noncriminal proceedings.
(g) This section does not apply if the defendant is an attorney pro se, unless the defendant has a court-appointed attorney assisting the defendant in the defense, in which case only the court-appointed attorney shall be permitted in the room with the child during the child's testimony. (2009-356, s. 1.)
Last modified: March 23, 2014