An Act To Facilitate Children's Testimony
Maine Legislature, Session 126, LD 1445
Committee: Judiciary
Sponsors: TYLER, BURNS, KAENRATH, KINNEY, MORIARTY, MASON, PLUMMER
Amends: 15 MRSA §1321

Legislative Document 
No. 1445 
H.P. 1039 
House of Representatives, April 24, 2013 
An Act To Facilitate Children's Testimony 
(AFTER DEADLINE) 
Approved for introduction by a majority of the Legislative Council pursuant to Joint Rule 
205. 
Reference to the Committee on Judiciary suggested and ordered printed. 
MILLICENT M. MacFARLAND 
Clerk 
Presented by Representative TYLER of Windham. 
Cosponsored by Senator BURNS of Washington and 
Representatives: KAENRATH of South Portland, KINNEY of Limington, MORIARTY of 
Cumberland, Senators: MASON of Androscoggin, PLUMMER of Cumberland. 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  15 MRSA §1321 is enacted to read: 
§1321.  Child witnesses in certain sex crime cases 
1.  Testimony of a child outside of the presence of the defendant.  A court may 
allow a child who is 10 years of age or younger to testify outside of the presence of the 
defendant pursuant to this section in a criminal proceeding concerning a crime under Title 
17-A, chapter 11 or 12 in which the child is the alleged victim. 
2.  State's motion to allow child testimony outside of presence of defendant; 
hearing.  Prior to trial and with reasonable notice to the defendant, the State may move 
the court to allow a child to testify outside of the presence of the defendant under 
subsection 1. Upon motion by the State, a court shall conduct a hearing to make the 
findings under this subsection at which the defendant may be present, except for that 
portion of the hearing in which the child testifies if the court determines that an 
examination of the child is necessary to make the required findings under this subsection. 
A court may allow the simultaneous presence of the child and defendant at the hearing to 
observe the child's demeanor in the presence of the defendant if the court determines that 
the observation is necessary to make the required findings under this subsection.  A court 
may not grant a motion to allow a child to testify outside of the presence of a defendant 
unless the court finds by clear and convincing evidence that: 
A.  There is a substantial likelihood, established by expert testimony, that the child 
would suffer emotional trauma from testifying in the presence of the defendant; 
B.  The trauma, as established under paragraph A, would be caused by the presence 
of the defendant and not by the courtroom or proceedings generally; 
C.  The trauma, as established under paragraph A, is at a level sufficient to 
substantially influence the child's testimony or adversely affect the child's well-being; 
D.  A less restrictive method of obtaining the testimony that can adequately protect 
the judicial process and the well-being of the child does not exist; and 
E.  The interests of the State in protecting the judicial process or the well-being of the 
child outweigh the constitutional rights of the defendant. 
The findings made under this subsection must be based upon the particular facts of the 
case and be narrowly construed to protect the constitutional rights of the defendant. 
3.  Requirements for testimony outside the presence of the defendant.  The 
requirements for testimony of a child outside the presence of the defendant under 
subsection 1 include: 
A.  The testimony must be conducted in a room within the courthouse and be 
televised live by way of 2-way closed-circuit television or comparable equipment; 
B.  The attorney for the State, the attorney for the defendant and a child advocate for 
the child must be present in the room in which the child gives the testimony when the 
child is present in the room; 
C.  Only necessary court personnel may be in the room in which the child is 
testifying; 
D.  The jury may not be present in the room in which the child is testifying but must 
be present in the same room as is the defendant; 
E.  The court may be in the room in which the child is testifying or the room in which 
the defendant and jury are located at the discretion of the court.  If the court is not 
present in the room in which the child is testifying, provisions must be made that 
allow the court to conduct the proceedings and address objections and motions and 
perform other necessary court duties; 
F.  Persons other than those expressly permitted may be present in the room in which 
the child is testifying at the discretion of the court only upon a showing of compelling 
need; 
G.  The televised image must include to the extent possible all persons in the room in 
which the child is testifying.  If it is not possible to include all persons in the room in 
which the child is testifying, the court shall explain to the jury the identities and 
location of all persons in the room; 
H.  Measures must be taken to allow constant communication between the defendant 
and the defendant's attorney during the testimony and to liberally allow court recesses 
for the defendant to consult in person with the defendant's attorney; 
I.  The television or comparable equipment must be capable of making an accurate 
reproduction and the operator of the equipment must be competent to operate the 
equipment; 
J.  The court, defendant and jury must be able to adequately observe and hear the 
child; 
K.  Adequate measures must be taken concerning any recording or reproduction of 
the testimony to protect the privacy of the child pursuant to state law; and 
L.  The court shall impose reasonable guidelines upon the parties for conducting the 
testimony to avoid trauma to the child or abuse of the procedure for tactical 
advantage. 
4.  Exception.  The provisions of this section do not apply if the defendant is an 
attorney pro se or if a positive identification of the defendant by the child is required. 
SUMMARY 
This bill allows a court, by motion from the State, to allow the testimony of a child 
who is 10 years of age or younger and the alleged victim of a sexual assault or sexual 
exploitation outside of the presence of the defendant if the court finds by clear and 
convincing evidence that the protection of the judicial process or the well-being of the 
child outweighs the constitutional rights of the defendant to confront the defendant's 
accuser.  This bill requires that testimony by a child victim outside the presence of the 
defendant must be televised by live, 2-way closed-circuit television with adequate 
provisions including that the court, jury and defendant can hear and observe the child.  
This bill does not allow testimony of a child outside of the presence of the defendant if 
the defendant is an attorney pro se or if a positive identification of the defendant by the 
child is required.