CA Educ Code § 44991 (2021)
2021 California Code|Education Code - EDC|TITLE 2 - ELEMENTARY AND SECONDARY EDUCATION|DIVISION 3 - LOCAL ADMINISTRATION|PART 25 - EMPLOYEES|CHAPTER 4 - Employment Certificated Employees|ARTICLE 3.3 - Testimony of Minor Witnesses at Dismissal or Suspension Hearings|Section 44991.

44991.  (a) (1) In an administrative proceeding held pursuant to Section 44934.1 involving an alleged offense involving a minor that meets the definition of egregious misconduct under paragraph (1) of subdivision (a) of Section 44932, counsel for a school district may apply for an order that the minor’s testimony be taken in a room outside the hearing room and be televised by two-way closed-circuit television and bears the burden of proving that such an order is justified. The person seeking such an order shall apply for the order at least seven days before the hearing date, unless the judge finds on the record that the need for such an order was not reasonably foreseeable.(2) The judge may order that the testimony of the minor be taken by closed-circuit television as provided in paragraph (1) if the judge finds that the minor is unable to testify in the hearing room in the presence of the respondent for any of the following reasons:(A) The minor is unable to testify because of emotional distress, established by a written statement of the minor, the minor’s parent or guardian, the minor’s support person, or a mental health professional who has evaluated the minor.(B) There is a substantial likelihood, established by expert testimony, that the minor would suffer emotional distress from testifying.(C) According to expert testimony, the minor suffers from a medical condition, mental condition, or other infirmity.(D) The judge finds that conduct of the respondent or the respondent’s representative causes the minor to be unable to continue testifying.(3) The judge shall rule on the application, and support a ruling on the minor’s inability to testify with findings on the record. In determining whether the impact on an individual minor of one or more of the factors described in paragraph (2) is so substantial as to justify an order under paragraph (1), the judge may question the minor in the judge’s office, or at some comfortable place other than the hearing room, on the record for a reasonable period of time in the presence of the minor’s parent or guardian, the minor’s support person, counsel for the school district, and a representative of the respondent.(4) If the judge orders the taking of testimony by television, counsel for the school district and a representative of the respondent, not including a respondent represented pro se, shall be present in a room outside the hearing room with the minor, and the minor shall be subjected to direct and cross-examination. The following are the only other persons who may be permitted in the room with the minor during the minor’s testimony:(A) Any persons necessary to operate the closed-circuit television equipment.(B) The parent or guardian of the minor.(C) Any other persons whose presence is determined by the judge to be necessary to the welfare and well-being of the minor, including, but not necessarily limited to, a judicial officer or support person.(5) In making the determination required by this subdivision, the judge shall consider the age, maturity, and cognitive ability of the minor, compared with other minors of the same age, the relationship between the minor and the respondent, any handicap or disability of the minor, and the nature of the acts alleged to have been committed by the respondent. The minor’s testimony shall be under oath and transmitted by closed-circuit television into the hearing room for viewing and hearing by the respondent, the judge, and any members of the public in attendance. The respondent shall be provided with the means of private, contemporaneous communication with the respondent’s representative during the testimony. The closed-circuit television transmission shall relay into the room in which the minor is testifying the respondent’s image, and the voice of the judge.(b) (1) In an administrative proceeding held pursuant to Section 44934.1 involving an alleged offense involving a minor that meets the definition of egregious misconduct under paragraph (1) of subdivision (a) of Section 44932, counsel for the school district may apply for an order that a deposition be taken of the minor’s testimony and that the deposition be recorded and preserved on videotape based upon the same criteria that would allow a minor’s testimony to be taken in a room outside the hearing room and be televised by two-way closed-circuit television, as set forth in paragraph (2) of subdivision (a) of this section. Counsel for the school district shall bear the burden of proving that an order applied for under this paragraph is justified in order to be consistent with subdivision (a) of this section.(2) Upon timely receipt of an application described in paragraph (1), the judge shall make a preliminary finding regarding whether the minor is likely to be unable to testify in the hearing room in the physical presence of the respondent, the judge, and the public for any of the reasons set forth in paragraph (2) of subdivision (a).(3) If the judge finds that the minor is likely to be unable to testify in open hearing for any of the reasons set forth in paragraph (2) of subdivision (a), the judge shall order that the minor’s deposition be taken and preserved by videotape.(4) The judge shall preside at the videotaped deposition of a minor, and shall rule on all questions as if at the hearing. The following are the only other persons who shall be permitted to be present at the videotaped deposition:(A) Counsel for the school district.(B) Representative of the respondent.(C) Any persons necessary to operate the videotape equipment.(D) The respondent, unless the judge excludes the respondent from the hearing room pursuant to paragraph (6).(E) The parent or guardian of the minor.(F) Any support person appointed pursuant to Section 44993 to protect the mental health, welfare, and well-being of the minor.(5) The respondent shall be afforded the rights applicable to respondents during trials, including the right to be confronted with the witness against the respondent and the right to cross-examine the minor.(6) If the preliminary finding of inability under paragraph (2) is based on evidence that the minor is unable to testify in the physical presence of the respondent, the judge may order that the respondent, including a respondent represented pro se, be excluded from the room in which the deposition is conducted. If the judge orders that the respondent be excluded from the deposition room, the judge shall order that two-way closed-circuit television equipment relay the respondent’s image into the room in which the minor is testifying, and the minor’s testimony into the room in which the respondent is viewing the proceeding, and that the respondent be provided with a means of private, contemporaneous communication with the respondent’s representative during the deposition.(7) The complete record of the deposition of the minor, including the image and voices of all persons who in any way participate in the deposition, shall be made and preserved on videotape in addition to being stenographically recorded. The videotape shall be transmitted to the judge’s office, and shall be made available for viewing by counsel for the school district, representative of the respondent, and the respondent during ordinary business hours.(8) If at the time of the hearing, the judge finds that the minor is unavailable or unable to testify in open hearing for a reason described in paragraph (2) of subdivision (a), the judge may admit into evidence the minor’s videotaped deposition in lieu of the minor’s testifying at the hearing. The judge shall support any ruling made pursuant to this paragraph with findings on the record.(9) Upon timely receipt of notice that new evidence has been discovered after the original videotaping and before or during the hearing, the judge, for good cause shown, may order an additional videotaped deposition. The testimony of the minor shall be restricted to the matters specified by the judge as the basis for granting the order.(10) In connection with the taking of a videotaped deposition under this subdivision, the judge may enter a protective order for the purpose of protecting the privacy of the minor.(Amended by Stats. 2019, Ch. 497, Sec. 56. (AB 991) Effective January 1, 2020.)