Montana Code 46-16-229. Order for two-way electronic audio-video communication testimony — finding by court — procedure for conducting testimony
46-16-229. Order for two-way electronic audio-video communication testimony — finding by court — procedure for conducting testimony. (1) The court shall order that the testimony of a child witness be taken by two-way electronic audio-video communication if, after considering the factors set forth in 46-16-228(3), the court finds by clear and convincing evidence that the child witness is unable to testify in open court in the presence of the defendant for any of the following reasons:
Terms Used In Montana Code 46-16-229
- Court: means a place where justice is judicially administered and includes the judge of the court. See Montana Code 46-1-202
- Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
- Defense attorney: Represent defendants in criminal matters.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Judge: means a person who is vested by law with the power to perform judicial functions. See Montana Code 46-1-202
- Person: includes a corporation or other entity as well as a natural person. See Montana Code 1-1-201
- Prosecutor: means an elected or appointed attorney who is vested by law with the power to initiate and carry out criminal proceedings on behalf of the state or a political subdivision. See Montana Code 46-1-202
- Testify: Answer questions in court.
- Testify: means every mode of oral statement under oath or affirmation. See Montana Code 1-1-202
- Testimony: Evidence presented orally by witnesses during trials or before grand juries.
- Witness: means a person whose testimony is desired in a proceeding or investigation by a grand jury or in a criminal action, prosecution, or proceeding. See Montana Code 46-1-202
(a)the child witness is unable to testify because of fear caused by the presence of the defendant;
(b)the child witness would suffer substantial emotional trauma from testifying in the presence of the defendant; or
(c)conduct by the defendant or the defendant’s attorney causes the child witness to be unable to continue testifying.
(2)If the court orders that the child witness’s testimony be taken by two-way electronic audio-video communication, the testimony must be taken outside the courtroom in a suitable location designated by the judge. Examination and cross-examination of the child witness must proceed as though the child witness were testifying in the courtroom. The only persons who may be permitted in the room with the child witness during the child’s testimony are:
(a)the judge or a judicial officer appointed by the court;
(b)the prosecutor;
(c)the defense attorney;
(d)the child’s attorney;
(e)persons necessary to operate the two-way electronic audio-video communication equipment; and
(f)any person whose presence is determined by the court to be necessary to the welfare and well-being of the child witness.
(3)The defendant must be afforded a means of private, contemporaneous communication with the defendant’s attorney during the testimony.
(4)This section does not preclude the presence of both a victim and the defendant in the courtroom together for purposes of establishing or challenging the identification of the defendant when identification is a legitimate issue in the proceeding.