2023 New York Laws › CPL - Criminal Procedure › Part 2 - The Principal Proceedings › Title I - Preliminary Proceedings in Superior Court › Article 190 - The Grand Jury and Its Proceedings › 190.32 - Videotaped Examination; Definitions, Application, Order and Procedure.

§  190.32  Videotaped  examination;  definitions, application, order and
procedure.
1. Definitions. As used in this section:
(a) "Child witness" means a person twelve years old or less  whom  the
people  intend  to  call  as  witness in a grand jury proceeding to give
evidence concerning any crime defined in article one hundred  thirty  or
two  hundred  sixty or section 255.25, 255.26 or 255.27 of the penal law
of which the person was a victim.
(b) "Special witness" means a person whom the people intend to call as
a witness in a grand jury proceeding and who is either:
(i) Unable  to  attend  and  testify  in  person  in  the  grand  jury
proceeding because the person is either physically ill or incapacitated;
or
(ii)  More  than  twelve  years  old  and who is likely to suffer very
severe emotional or mental stress  if  required  to  testify  in  person
concerning  any  crime  defined  in  article  one  hundred thirty or two
hundred sixty or section 255.25, 255.26 or 255.27 of the  penal  law  to
which the person was a witness or of which the person was a victim.
(c)  "Operator"  means  a person employed by the district attorney who
operates the video camera to record the examination of a  child  witness
or a special witness.
2.  In lieu of requiring a witness who is a child witness to appear in
person and give evidence  in  a  grand  jury  proceeding,  the  district
attorney  may  cause the examination of such witness to be videotaped in
accordance with the provisions of subdivision five of this section.
3. Whenever the district attorney has reason to believe that a witness
is a special witness, he may make an ex parte application to  the  court
for  an  order  authorizing  the  videotaping  of an examination of such
special witness and the subsequent introduction in evidence in  a  grand
jury  proceeding of that videotape in lieu of the live testimony of such
special witness. The application must be  in  writing,  must  state  the
grounds  of  the application and must contain sworn allegations of fact,
whether  of  the  district  attorney  or  another  person  or   persons,
supporting  such  grounds.  Such  allegations may be based upon personal
knowledge of the deponent or upon information and belief, provided, that
in the latter event, the sources of such information and the grounds for
such belief are stated.
4. If the court is satisfied that a witness is a special  witness,  it
shall issue an order authorizing the videotaping of such special witness
in  accordance  with the provisions of subdivision five of this section.
The court order and the application and all supporting papers shall  not
be disclosed to any person except upon further court order.
5.  The  videotaping  of an examination either of a child witness or a
special witness shall proceed as follows:
(a) An examination of a child witness or a special witness which is to
be videotaped pursuant to this section may be conducted anywhere and  at
any  time provided that the operator begins the videotape by recording a
statement by the district attorney of the date, time and  place  of  the
examination.  In addition, the district attorney shall identify himself,
the operator and all other persons present.
(b) An accurate clock with a sweep second hand shall be placed next to
or behind the witness in such position as  to  enable  the  operator  to
videotape   the  clock  and  the  witness  together  during  the  entire
examination. In the alternative, a date and time generator shall be used
to superimpose the day, hour, minute and second over the  video  portion
of the recording during the entire examination.
(c)  A  social  worker,  rape  crisis counselor, psychologist or other
professional providing emotional support to a  child  witness  or  to  a

special  witness,  as  defined  in subparagraph (ii) of paragraph (b) of
subdivision one of this section, or any of those persons  enumerated  in
paragraphs  (a), (b), (c), (d), (e), (f) and (g) of subdivision three of
section  190.25  may  be  present  during  the videotaping except that a
doctor, nurse or other medical assistant also may be present if required
by the attendant circumstances. Each person present, except the witness,
must, if he has not previously taken a constitutional oath of office  or
an  oath  that he will keep secret all matters before a grand jury, must
take an oath on the record that  he  will  keep  secret  the  videotaped
examination.
(d)  The  district attorney shall state for the record the name of the
witness, and the caption and the grand jury number, if any, of the case.
If the witness to be examined is  a  child  witness,  the  date  of  the
witness'  birth  must  be  recorded.  If the witness to be examined is a
special witness, the  date  of  the  order  authorizing  the  videotaped
examination  and  the  name of the justice who issued the order shall be
recorded.
(e) If the witness will give sworn testimony,  the  administration  of
the oath must be recorded. If the witness will give unsworn testimony, a
statement that the testimony is not under oath must be recorded.
(f)  If  the  examination  requires the use of more than one tape, the
operator shall record a statement of the district attorney at the end of
each tape declaring that such  tape  has  ended  and  referring  to  the
succeeding  tape. At the beginning of such succeeding tape, the operator
shall record a statement of the district attorney  identifying  himself,
the  witness being examined and the number of tapes which have been used
to record the examination of such witness.  At  the  conclusion  of  the
examination  the  operator  shall  record  a  statement  of the district
attorney certifying that the recording has been completed, the number of
tapes on  which  the  recording  has  been  made  and  that  such  tapes
constitute  a  complete  and  accurate  record of the examination of the
witness.
(g) A videotape of an examination conducted pursuant to  this  section
shall not be edited unless upon further order of the court.
6.  When  the  videotape  is  introduced in evidence and played in the
grand jury, the grand jury stenographer shall record the examination  in
the same manner as if the witness had testified in person.
7.  Custody of the videotape shall be maintained in the same manner as
custody of the grand jury minutes.