Rule 616  Televised testimony of child.  In any prosecution of an abuse offense or sexual offense alleged to have been committed against a child less than eighteen years of age at the time of the testimony, the court may order that the testimony of the child be taken in a room other than the courtroom and be televised by two-way closed circuit video equipment to be viewed by the court, the accused, and the trier of fact, if the court finds that requiring the child to testify in the physical presence of the accused would likely result in serious emotional distress to the child and substantial impairment of the child's ability to communicate.  During the entire course of such a procedure, the attorneys for the defendant and for the State shall have the right to be present with the child, and full direct and cross-examination shall be available as a matter of right. [L 1985, c 279, §1; am L 1993, c 198, §1(2)]

Cross References

  Televised testimony of victims and witnesses, see §801D-7.

RULE 616 COMMENTARY

  This rule, which was recommended by the Hawaii Supreme Court in its Final Report of the Committee on Hawaii Rules of Evidence 30 (1991), resembles Uniform Rule of Evidence 807(d).  The preliminary determination that taking the child witness' testimony in the accused's presence "would likely result in serious emotional distress to the child and substantial impairment of the child's ability to communicate" is necessary to avoid offending the Confrontation Clause, see Maryland v. Craig, 497 U.S. 836 (1990).  This preliminary determination is for the court under Rule 104(a).

Case Notes

  Subsection (b) (1985), which permitted introduction of child victim's videotaped statement without showing of necessity, impermissibly infringed on defendant's right of confrontation.  79 H. 128, 900 P.2d 135 (1995).