491.680. Court may order video recording of alleged child victim, when--procedure--transcript--exclusion of defendant from proceedings, opportunity to review--cross-examination. - Missouri Statutes

Court may order video recording of alleged child victim,when--procedure--transcript--exclusion of defendant fromproceedings, opportunity to review--cross-examination.

491.680. 1. In any criminal prosecution under theprovisions of chapter 565, 566 or 568, RSMo, involving an allegedchild victim, upon the motion of the prosecuting attorney, thecourt may order that an in-camera videotaped deposition of thetestimony of the alleged child victim be made for use assubstantive evidence at preliminary hearings and at trial.

2. If the court finds, at a hearing, that significantemotional or psychological trauma to the child which would resultfrom testifying in the personal presence of the defendant exists,which makes the child unavailable as a witness at the time of thepreliminary hearing or trial, the court shall order that anin-camera videotaped deposition of the testimony of the allegedchild victim be made for use as substantive evidence at thepreliminary hearings and at trial. Such recording shall beretained by the prosecuting attorney and shall be admissible inlieu of the child's personal appearance and testimony atpreliminary hearings and at trial, conflicting provisions ofsection 544.270, RSMo, notwithstanding. A transcript of suchtestimony shall be made as soon as possible after the completionof such deposition and shall be provided to the defendanttogether with all other discoverable materials.

3. Upon a finding of trauma as provided for in subsection 2of this statute, the court may also exclude the defendant fromthe videotape deposition proceedings in which the child is totestify. Where any such order of exclusion is entered, the childshall not be excused as a witness until the defendant has had areasonable opportunity to review the videotape deposition inprivate with his counsel and to consult with his counsel; anduntil his counsel has been afforded the opportunity tocross-examine the child following such review and consultation.

4. The court shall preside over the depositions, whichshall be conducted in accordance with the rules of evidenceapplicable to criminal cases.

5. The attorney for the defendant shall have at least twoopportunities to cross-examine the deposed alleged child victim:once prior to the preliminary hearing and at least one additionaltime prior to the trial.

6. Prior to the taking of the deposition which is to beused as substantive evidence at the trial pursuant to sections491.675 to 491.693, the defendant's attorney shall be providedwith such discoverable materials and information as the courtmay, on motion, direct; shall be afforded a reasonable time toexamine such materials; and shall be permitted to cross-examinethe child during the deposition.

7. If the defendant is not represented by counsel and if,upon inquiry, it appears to the court that the defendant will beunable to obtain counsel within a reasonable period of time, thecourt shall appoint the public defender or other counsel torepresent the defendant at the deposition.

(L. 1985 H.B. 366, et al. § 9, A.L. 1992 S.B. 638)

(1989) Taking of video recording of child's deposition where defendant was excluded from room where deposition was taken was violation of defendant's right of confrontation where no evidence of possible trauma was offered. State v. Davidson, 764 S.W.2d 731 (Mo.App.W.D.).