KRS § 421.350 — KY Code / Title XXXVIII / Chapter 421 / Section 421.350
421.350 Testimony of child allegedly victim of illegal sexual activity
Status: in_force

421.350 Testimony of child allegedly victim of illegal sexual activity.

(1) This section applies only to a proceeding in the prosecution of an offense, including

but not limited to an offense under KRS 510.040 to 510.155, 529.030 to 529.050,

529.070, 529.100, 529.110, 530.020, 530.060, 530.064(1)(a), 531.310, 531.320,

531.370, or any specified in KRS 439.3401 and all dependency proceedings

pursuant to KRS Chapter 620, when the act is alleged to have been committed

against a child twelve (12) years of age or younger, and applies to the statements or

testimony of that child or another child who is twelve (12) years of age or younger

who witnesses one of the offenses included in this subsection.

(2) The court may, on the motion of the attorney for any party and upon a finding of

compelling need, order that the testimony of the child be taken in a room other than

the courtroom and be televised by closed circuit equipment in the courtroom to be

viewed by the court and the finder of fact in the proceeding. Only the attorneys for

the defendant and for the state, persons necessary to operate the equipment, and any

person whose presence the court finds would contribute to the welfare and well-

being of the child may be present in the room with the child during his testimony.

Only the attorneys may question the child. The persons operating the equipment

shall be confined to an adjacent room or behind a screen or mirror that permits them

to see and hear the child during his testimony, but does not permit the child to see or

hear them. The court shall permit the defendant to observe and hear the testimony of

the child in person, but shall ensure that the child cannot hear or see the defendant.

(3) The court may, on the motion of the attorney for any party and upon a finding of

compelling need, order that the testimony of the child be taken outside the

courtroom and be recorded for showing in the courtroom before the court and the

finder of fact in the proceeding. Only those persons permitted to be present at the

taking of testimony under subsection (3) of this section may be present during the

taking of the child's testimony, and the persons operating the equipment shall be

confined from the child's sight and hearing as provided by subsection (3) of this

section. The court shall permit the defendant to observe and hear the testimony of

the child in person, but shall ensure that the child cannot hear or see the defendant.

The court shall also ensure that:

(a) The recording is both visual and oral and is recorded on film or videotape or

by other electronic means;

(b) The recording equipment was capable of making an accurate recording, the

operator was competent, and the recording is accurate and is not altered;

(c) Each voice on the recording is identified; and

(d) Each party is afforded an opportunity to view the recording before it is shown

in the courtroom.

(4) If the court orders the testimony of a child to be taken under subsection (2) or (3) of

this section, the child may not be required to testify in court at the proceeding for

which the testimony was taken, but shall be subject to being recalled during the

course of the trial to give additional testimony under the same circumstances as with

any other recalled witness, provided that the additional testimony is given utilizing

the provisions of subsection (2) or (3) of this section.

(5) For the purpose of subsections (2) and (3) of this section, "compelling need" is

defined as the substantial probability that the child would be unable to reasonably

communicate because of serious emotional distress produced by the defendant's

presence.