Rule 616. Alternative testimony of witnesses with developmental disabilities or mental retardation in civil cases and special proceedings. - North Carolina Statutes

Rule 616.  Alternativetestimony of witnesses with developmental disabilities or mental retardation incivil cases and special proceedings.

(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 acivil proceeding or special proceeding if the court determines by clear andconvincing evidence that the witness would suffer serious emotional distressfrom testifying in the presence of a named party or parties or from testifyingin an open forum and that the ability of the witness to communicate with thetrier of fact would be impaired by testifying in the presence of a named partyor parties or from testifying in an open forum.

(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. Except as providedin this section, the court shall ensure that the counsel for all parties isphysically present where the witness testifies and has a full and fairopportunity for examination and cross‑examination of the witness. In aproceeding where a party is representing itself, the court may limit or denythe party from being physically present during testimony if the court findsthat the witness would suffer serious emotional distress from testifying in thepresence of the party. A party may waive the right to have counsel physicallypresent where the witness testifies.

(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. 1.)