A BILL TO BE ENTITLED
AN ACT to provide for alternative means of testimony for children and adults with disabilities as recommended by the joint study committee on autism spectrum disorder and public safety.
The General Assembly of North Carolina enacts:
SECTION 1.  Article 6 of Chapter 8C of the General Statutes is amended by adding a new section to read:
"Rule 616. Alternative testimony of children and developmentally disabled.
(a)	Closed Circuit Testimony Permitted. – When a witness is either (i) under the age of 16 or (ii) developmentally disabled or mentally retarded, the court may, on its own motion or at the request of a party, order that witness's testimony be taken by closed circuit television in any action, whether civil or criminal in nature.
(b)	Finding of Emotional Harm Required in Criminal Actions. – Closed circuit testimony may be permitted in criminal actions only if the court finds that there is a substantial likelihood that the witness will suffer emotional harm such that the witness could not reasonably communicate with the finder of fact if required to testify in open court. Such a finding shall be based upon clear and convincing evidence, which may include expert testimony.
(c)	Finding of Best Interests of Witness in Civil Actions. – Closed circuit testimony may be permitted in civil actions only if the court finds by a preponderance of the evidence that permitting the witness to testify by closed circuit television is necessary to serve the best interests of the witness or enable the witness to communicate with the finder of fact. In making this finding, the court shall consider:
(1)	The nature of the proceeding;
(2)	The age and maturity of the witness;
(3)	The relationship of the witness to the parties in the proceeding;
(4)	The nature and degree of emotional trauma that the witness may suffer in testifying; and
(5)	Any other relevant factor.
(d)	Definitions. – The following definitions apply in this section:
(1)	Closed circuit testimony. – Transmission of witness testimony by closed circuit television which enables the defendant to observe and view the testimony and provides, by any appropriate electronic means, the defendant's right to assistance of counsel, including the right to immediate and direct communication with counsel during cross‑examination.
(2)	Developmentally disabled. – A person with a severe, chronic disability which:
a.	Is attributable to a mental or physical impairment or combination of mental and physical impairments, including cerebral palsy, epilepsy, autism, or other neurological conditions;
b.	Is manifested before the person attains age 22, unless the disability is caused by a traumatic head injury and is manifested after age 22;
c.	Is likely to continue indefinitely;
d.	Results in substantial functional limitations in three or more of the following areas of major life activity: self‑care, receptive and expressive language, capacity for independent living, learning, mobility, self‑direction and economic self‑sufficiency; and
e.	Reflects the person's need for a combination and sequence of special interdisciplinary or generic care, treatment, or other services which are of a lifelong or extended duration and are individually planned and coordinated; or
f.	When applied to children from birth through four years of age, may be evidenced as a developmental delay.
(3)	Mentally retarded. – A person with significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested before age 22."
SECTION 2.  This act becomes effective December 1, 2009, and applies to any testimony given on or after that date.