Child victims and witnesses; using two-way closed-circuit television.
Summary
HB1728 amends Virginia law governing when child victims and child witnesses may testify outside the courtroom by two-way closed-circuit television or other securely encrypted two-way audio and video technology. The bill applies to alleged victims who were 14 or younger at the time of the offense and 16 or younger at trial, and to witnesses who are 14 or younger at trial. It covers criminal proceedings involving kidnapping, sexual assault, commercial sex trafficking or prostitution offenses, family offenses, and alleged murder, and it allows either the Commonwealth or the defendant to request remote testimony in preliminary hearings and other covered proceedings.
The bill also updates the procedural standards for granting such an order. A court may allow remote testimony if the child is unavailable to testify in open court because of persistent refusal, inability to communicate, or a clear and convincing showing—based on expert testimony—that testifying in the defendant’s presence would cause severe emotional trauma that would impair the child’s ability to communicate. The measure requires the child’s testimony to remain subject to direct and cross-examination, requires the attorneys to be present with the child, preserves the defendant’s right to contemporaneous private communication with counsel, and bars the cost of the technology from being assessed against the defendant.
Impact
HB1728 changes the evidentiary and courtroom procedure rules in § 18.2-67.9 of the Code of Virginia by expanding and clarifying the use of remote testimony for child victims and witnesses. It adds securely encrypted two-way audio and video technology as an alternative to traditional closed-circuit television, adjusts the filing deadline for requests, and refines the findings a court must make before authorizing remote testimony. The bill affects prosecutors, criminal defendants, courts, child witnesses, and victims in specified child-related and homicide cases, while also shifting any technology costs away from defendants.
Sentiment
The bill appears to have broad bipartisan support and was advanced through both chambers with strong favorable votes at each stage. It passed the House overwhelmingly, cleared Senate committees and the full Senate with comfortable margins, and the House agreed to the Senate amendments with only a small number of dissenting votes. The voting pattern suggests general agreement on the need to protect child witnesses while preserving core confrontation and defense rights.
Contention
The main points of potential contention are the balance between protecting child victims from trauma and preserving a defendant’s right to confront witnesses, as well as the evidentiary threshold required for a court to permit remote testimony. The bill requires clear and convincing evidence and expert opinion for trauma-based findings, which reflects concern about limiting the procedure to appropriate cases. Another practical issue is the use of encrypted technology and who bears the cost, though the bill resolves that by prohibiting assessment of those costs against the defendant. The recorded votes show some opposition, but not enough to indicate major controversy.