Section 23E. (a) For the purposes of this section, the following words shall have the following meanings, unless the context clearly requires otherwise:—
''Witnesses with an intellectual disability'', a witness in a proceeding whom the presiding justice has found after hearing, as provided in paragraph (1) of subsection (b), to have an intellectual disability.
''Intellectual disability'', substantial limitations in present functioning manifesting before age eighteen and characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure and work.
(b)(1) In any judicial proceeding in which a witness with an intellectual disability will testify, the court, on its own motion or on motion of the proponent of the witness with an intellectual disability and after hearing on the witness's competency to testify, may order the use of alternative procedures for taking testimony of the witness with an intellectual disability; provided, however, that the court finds at the time of the order, by clear and convincing evidence in the case of a criminal proceeding, and by a preponderance of the evidence in the case of a noncriminal proceeding, that the witness with an intellectual disability is likely, as a result of submitting to usual procedures for determining competency or as a result of testifying in open court, as the case may be, (i) to suffer severe psychological or emotional trauma; or (ii) to suffer a temporary loss of or regression in cognitive or behavioral functioning or communicative abilities, such that his ability to testify will be significantly impaired. If the court so finds, the court may order the use of alternative procedures for determining competency to testify or for taking testimony of the witness with an intellectual disability including, but not limited to, the following:
(i) permitting a person familiar to the witness, such as a family member, clinician, counselor, social worker or friend, to sit near or next to such witness;
(ii) permitting the witness with mental retardation to testify in court but off the witness stand; provided, however, that if the proceeding is a bench proceeding, testimony may be taken at another location within the courthouse but outside the courtroom; and, provided further, that if the proceeding is a jury trial, testimony may be taken on videotape out of the presence of the jury or in a location chosen by the court or by agreement of the parties; or
(iii) combining alternative procedures provided in clauses (i) and (ii).
(c) When the proceedings are not criminal or juvenile delinquency related, testimony taken by videotape pursuant to an order under paragraph (1) of subsection (b) shall be taken in the presence of the judge, counsel for all parties and such other persons as the court may allow. Counsel shall be given the opportunity to examine or cross-examine the witness with mental retardation to the same extent as he would be permitted if ordinary procedures had been followed.
(d) When the proceedings are criminal or juvenile delinquency related, the defendant shall have the right to be present during the taking of the testimony, to have an unobstructed view of the witness with an intellectual disability, and to have the witness's view of the defendant be unobstructed.
(e) If the court orders that the testimony of the witness with an intellectual disability be videotaped out of the presence of the jury, the videotape shall be shown in court to the jury in the presence of the judge, the parties and the parties' counsel. The videotape shall be marked as an exhibit and retained by the court as part of the record of the case.
(f) Testimony taken by alternative procedures authorized by this section shall be admissible as substantive evidence to the same extent as and in lieu of live testimony by the witness in any proceeding in which such testimony is taken.
(g) The witness requesting that testimony be taken by videotape shall bear the responsibility of producing an acceptable videotape of the testimony. The commonwealth shall reimburse such witness for reasonable costs of producing such videotape. Each party shall be afforded an opportunity to view the recording before it is shown in the courtroom.
(h) The fact that the witness with an intellectual disability has been found in a court proceeding to be incompetent to make informed decisions of a personal, medical or financial nature or that he is under a guardianship or conservatorship shall not preclude such witness from testifying if he is found to be competent to testify and shall not preclude a determination of competency to testify.
(i) A witness shall not be denied the benefit of appropriate alternative procedures provided by this section and the court shall allow such additional time or continuances to permit application of such procedures.
(j) A person with expertise in persons with an intellectual disability may be called by the proponent of the witness to testify in all relevant matters, including the competency determination of such witness.
(k) Nothing in this section shall be construed to prohibit a court from using other appropriate means consistent with this section and any other general or special law and with the defendant's rights to accomplish the purposes of this section.
Structure Massachusetts General Laws
Part III - Courts, Judicial Officers and Proceedings in Civil Cases
Title II - Actions and Proceedings Therein
Chapter 233 - Witnesses and Evidence
Section 1 - Issuance of Summonses for Witnesses
Section 2 - Service of Summons
Section 3 - Witness Fees; Payment or Tender
Section 3a - Representation of Commissioner of Banks
Section 4 - Liability for Nonattendance
Section 5 - Penalty for Nonattendance; Contempt
Section 6 - Warrant for Nonattending Witness
Section 7 - Witnesses Before Executive Council
Section 8 - Bodies Authorized to Summon Witnesses; Oath
Section 9 - Warrant for Witness Failing to Attend Before Nonjudicial Tribunal
Section 10 - Enforcing Attendance Before Nonjudicial Tribunal
Section 11 - Requiring Testimony
Section 12 - Summons for Attendance at Criminal Trial Outside State
Section 13 - Penalty for Nonattendance Outside State
Section 13a - Attendance of Witnesses Outside State; Hearing and Summons; Failure to Attend
Section 13b - Attendance of Witness From Another State; Fees; Failure to Attend
Section 13c - Exemption From Arrest and Process of Witnesses From Outside State
Section 13d - Short Title; Construction of Law
Section 14 - Persons Authorized to Administer Oaths
Section 15 - Mode of Administering Oaths
Section 16 - Mode Requested by Affiant
Section 17 - Affirmation by Quakers
Section 18 - Affirmation for Reasons of Conscience
Section 19 - Oaths of Non–christians
Section 20 - Competency of Witnesses; Husband and Wife; Criminal Defendant; Parent and Child
Section 20a - Privileged Communications; Communications With Clergymen
Section 20b - Privileged Communications; Patients and Psychotherapists; Exceptions
Section 20c - Immunity From Prosecution; Privilege Against Self-Incrimination
Section 20d - Crimes Subject to Immunity
Section 20h - Contempt of Court; Punishment; Appeal
Section 20k - Domestic Violence Victims' Counselors; Confidential Communications
Section 20l - Confidentiality of Domestic Violence Victims' Program and Rape Crisis Center Locations
Section 21 - Proof of Conviction of Crime to Affect Credibility
Section 21a - Evidence of Reputation
Section 21b - Evidence of Sex Crime Victim's Sexual Conduct; Admission Hearing; Findings
Section 22 - Cross-Examination of Adverse Party; Corporation's Agent as Adverse Party
Section 23 - Impeachment of Party's Own Witness
Section 23a - Admissibility of Written or Recorded Statements of Party to Personal Injury Action
Section 23b - Accused; Statements Made While Undergoing Psychiatric Examination; Admissibility
Section 23f - Admissibility of Past Physical, Sexual or Psychological Abuse of Defendant
Section 24 - Depositions in Civil Cases Authorized
Section 24a - Medical Witnesses
Section 25 - Grounds for Deposition
Section 26 - Notice of Taking Deposition
Section 27 - Persons on Whom Notice May Be Served
Section 29 - Verbal Notice; Waiver of Notice, Etc.
Section 30 - Oath and Examination of Deponent
Section 31 - Order of Examination
Section 32 - Mode of Taking Deposition
Section 33 - Certification of Deposition
Section 34 - Delivery and Preservation of Deposition
Section 35 - Exclusion of Deposition
Section 36 - Objections to Deposition
Section 37 - Use of Deposition in Second Action
Section 38 - Compelling Giving of Deposition; Place
Section 39 - Place of Taking Deposition of Nonresident Found Within Commonwealth
Section 40 - Rules for Taking Depositions
Section 41 - Taking Deposition Outside Commonwealth
Section 42 - Written Interrogatories; Notice to Adverse Party; Production of Documents
Section 43 - Rules for Taking Depositions Outside of Commonwealth
Section 44 - Foreign Depositions Obtained Contrary to Statute
Section 45 - Deposition for Use in Another State
Section 46 - Application to Take Deposition to Perpetuate Testimony
Section 47 - Notice of Taking Deposition; Compelling Testimony
Section 48 - Objections to Taking Deposition; Procedure
Section 49 - Mode of Taking Deposition
Section 50 - Recording Deposition
Section 51 - Use of Deposition in Action
Section 52 - Perpetuation of Testimony of Nonresidents
Section 53 - Application to Perpetuate Testimony of Nonresidents
Section 54 - Notice of Taking Deposition
Section 55 - Issuance of Commission
Section 56 - Written Interrogatories
Section 57 - Rules for Perpetuation of Testimony of Witnesses Without Commonwealth
Section 58 - Use of Deposition
Section 59 - Perpetuation of Testimony for Use Against All Persons
Section 60 - Application for Deposition
Section 61 - Naming Persons Interested; Notice of Taking Deposition
Section 62 - Recording Deposition
Section 63 - Use of Deposition Against Any Person
Section 64 - Admissibility of Dying Declaration of Woman
Section 65 - Admissibility of Declaration of Decedent
Section 65a - Admissibility of Deceased Party's Answers to Interrogatories
Section 66 - Evidence in Actions Against an Executor or Administrator
Section 67 - Evidence in Equity
Section 68 - Proof of Signature to Attested Instrument
Section 69 - Records of Courts of Other States or United States
Section 70 - Judicial Notice of Foreign Law
Section 73 - Foreign Oaths and Affidavits
Section 74 - Evidence of Acts of Incorporation
Section 75 - Admissibility of Printed Copies of Acts of Legislative and Administrative Bodies
Section 76 - Admissibility of Authenticated Records of Governmental Departments
Section 76a - Authenticated Copies of Documents Filed With Securities and Exchange Commission
Section 77 - Authenticated Copies of Records of Banks and Trust Companies
Section 78 - Entry, Writing or Record Made in Regular Course of Business; Impeachment
Section 79a - Certified Copies of Public and Private Records
Section 79b - Fact Statements Published for Persons in Particular Occupation
Section 79c - Statements of Fact or Opinion in Scientific Publication; Notice of Intention to Use
Section 79d - Photographic Copies of Newspaper in Library; Prints From Photographic Films
Section 79e - Reproductions of Public or Business Records
Section 79f - Proof of Public Way
Section 79g - Medical and Hospital Services; Evidence
Section 79k - Duplicate of Computer Data File or Program File; Admissibility
Section 80 - Transcripts From Stenographic Notes
Section 81 - Criminal Proceedings; Out-of-Court Statements Describing Sexual Contact; Admissibility
Section 82 - Civil Proceedings; Out-of-Court Statements Describing Sexual Contact; Admissibility
Section 83 - Custody Hearings; Out-of-Court Statements Describing Sexual Contact; Admissibility