Relating to limitations on discovery depositions involving minor victims

This bill relates to limitations on discovery depositions involving minor victims. The bill provides that there shall be a rebuttable presumption in favor of permitting a discovery deposition of a minor victim in a criminal action when defense counsel demonstrates to the court, by a preponderance of the evidence, that such deposition is critical to the defendant’s ability to receive an adequate and fair trial. Defense counsel seeking to depose a minor victim must file a written application with the court, which sets forth with particularity: the specific factual matters or areas of inquiry that defense counsel seeks to explore through the deposition; the reasons why the requested information is critical to the defense; a description of efforts made to obtain the information through other discovery methods, including but not limited to review of the forensic interview, written interrogatories, requests for production, or depositions of other witnesses; an estimate of the time reasonably necessary to complete the deposition; and a proposed plan for minimizing trauma to the minor deponent, including proposed location, timing, and any accommodations. The bill provides that in ruling on an application the court shall weigh: the importance of the requested information to the defendant’s ability to present a meaningful defense; whether the information sought is available through less intrusive means, including review of the forensic interview or other discovery; the age and developmental level of the minor victim; the nature and severity of the alleged offense; the potential psychological impact on the minor victim; the length of time since the alleged offense occurred; whether the minor victim has received therapeutic treatment that could be disrupted by the deposition; the existence and quality of any forensic interview or other recorded statement; and any other factors the court deems relevant to balancing the defendant’s constitutional rights against the welfare of the minor victim. If the court grants the application, the court shall issue an order specifying: the specific topics or areas of inquiry permitted; topics or questions that are prohibited; the maximum duration of the deposition; and any other limitations the court deems appropriate to protect the minor victim while permitting meaningful discovery. The bill specifies that all depositions of minor victims conducted pursuant to this section shall be subject to the following mandatory protections: the deposition shall be conducted at a location chosen by the minor deponent or counsel for the minor deponent; the deposition shall not be conducted in a jail, prison, law enforcement facility, or the office of defense counsel unless the minor deponent affirmatively consents; the deposition shall be scheduled at a time that minimizes disruption to the minor deponent’s school attendance, therapeutic appointments, and regular activities; and the deposition shall be recorded by video and audio. The minor deponent shall be entitled to have present during the deposition: a parent, guardian, or other supportive adult of the minor’s choosing, provided such person is not a defendant or potential witness in the case; a victim advocate or support animal, at the minor deponent’s request; and a therapist or mental health professional familiar with the minor deponent, at the minor deponent’s request. The minor deponent may testify from behind a screen or one-way mirror that shields the minor deponent from direct view of the defendant, while permitting the defendant to observe the minor deponent. The deposition may be conducted via contemporaneous two-way video technology that permits the minor deponent to be in a separate room from the defendant and defense counsel. Counsel for the minor deponent or the prosecuting attorney may object to any question that exceeds the scope permitted by the court’s order or that constitutes deponent abuse. Upon such objection, the minor deponent shall not be required to answer until the objection is resolved. If a pattern of improper questioning emerges, counsel for the minor deponent or the prosecuting attorney may suspend the deposition and seek immediate telephonic review by the court. The court may, upon review, terminate the deposition, limit its scope further, or impose immediate sanctions. The bill provides that upon motion of the prosecuting attorney or counsel for the minor deponent, or upon the court’s own motion, the court shall conduct a hearing to determine whether deponent abuse occurred during a deposition conducted under this section. If the court finds by a preponderance of the evidence that deponent abuse occurred, the court shall impose one or more of the following sanctions: a fine against the offending attorney of not less than $1,000 and not more than $25,000 per instance of abuse; an order requiring the offending attorney or the attorney’s client to pay all costs associated with the deposition; an order requiring the offending attorney or the attorney’s client to pay for any additional therapeutic treatment required by the minor deponent as a result of the deponent abuse; an order excluding from evidence at trial any testimony obtained through abusive questioning; an order permitting the prosecuting attorney to inform the jury that testimony was excluded due to defense counsel’s abusive conduct, or permitting an adverse inference instruction; immediate termination of the deposition with no right to reconvene; an order prohibiting the offending attorney from conducting any further depositions of minors in any case for a period of not less than one year; referral of the offending attorney to the appropriate attorney disciplinary authority for professional misconduct; a finding of contempt of court, with appropriate civil or criminal penalties; or in cases of egregious or repeated abuse, preclusion of defenses, or other case-dispositive sanctions as the court deems just. The bill defines “deponent abuse”, “forensic interview”, “minor”, and “trauma-informed practices”.