RULE ON EXAMINATION OF A CHILD WITNESS

SECTION 1. APPLICABILITY OF THE RULE - Unless otherwise provided, this Rule shall govern the examination of child witnesses who are victims of crime, accused of a crime, and witnesses to crime. It shall apply in all criminal proceedings and non-criminal proceedings involving child witnesses.

SECTION 3. CONSTRUCTION OF THE RULE - This Rule shall be liberally construed to uphold the best interests of the child and to promote maximum accommodation of child witnesses without prejudice to the constitutional rights of the accused.

SECTION 4. DEFINITIONS -

(a) A "child witness" is any person who at the time of giving testimony is below 18. In child abuse cases, a child includes one over 18 but is found by the court as unable to fully take care of himself or protect himself form abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition.

(c) "Facilitator" means a person appointed by the court to pose questions to a child.

(d) "Record regarding a child" or record means any photograph, videotape, audiotape, film, handwriting, typewriting, electronic recording, computer data or printout, or other memorialization, including any court document, pleading, or any copy or reproduction of any of the foregoing that contains the name, description, address, school, or any other personal identifying information about a child or his family and that is produced or maintained by a public agency, private agency, or individual.

(f) A "support person" is a person chosen by the child to accompany his to testify at or attend a judicial proceeding or deposition to provide emotional support for him.

(g) "Best interest of the child" means the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the child and most encouraging to his physical, psychological, and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the child.

(i) "In-depth investigative interview" or "disclosure interview" as an inquiry or proceeding conducted by duly trained members of a multidisciplinary team or representatives of law enforcement or child protective services for the purpose of determining whether child abuse has been committed.

SECTION 6. COMPETENCY - Every child witness is presumed qualified to be a witness. However, the court shall conduct a competency examination of a child, motu proprio or on motion of a party, when it finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court.

(b) BURDEN OF PROOF - To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence.

(c) PERSONS ALLOWED AT COMPETENCY EXAMINATION - Only the following are all lowed to attend a competency examination:

1. the judge and necessary court personnel;


2. the counsel for the parties;


3. the guardian ad litem;


4. one or more support persons for the child; and


5. the defendant, unless the court determines that competence can be fully evaluated in his absence.

(d) CONDUCT OF EXAMINATION - Examination of a child as to his competence shall be conducted only by the judge. Counsel for the parties, however, can submit questions to the judge that he may, in his discretion, ask the child.

SECTION 7. OATH OR AFFIRMATION - Before testifying, a child shall take an oath or affirmation to tell the truth.

SECTION 8. EXAMINATION OF A CHILD WITNESS - The examination of a child witness presented in a hearing or any proceeding shall be done in open court. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally.

The party who presents a child witness or the guardian ad litem of such child witness may, however, move that the court allow his to testify in the manner provided in this Rule.

SECTION 9. INTERPRETER FOR CHILD -

(a) When a child does not understand the English or Filipino language or is unable to communicate in said languages due to his developmental level, fear, shyness, disability, or other similar reason, an interpreter whom the child can understand and who understands the child may be appointed by the court, motu proprio or upon motion, to interpret for the child.

(b) If a witness or member of the family of the child is the only person who can serve as an interpreter for the child, he shall not be disqualified and may serve as the interpreter of the child. The interpreter however, who is also a witness, shall testify ahead of the child.

(c) An interpreter shall take an oath of affirmation to make a true and accurate interpretation.

SECTION 10. FACILITATOR TO POSE QUESTIONS TO CHILD -

(a) the court may, motu proprio or upon motion, appoint a facilitator if it determines that the child is unable to understand or respond to questions asked. the facilitator may be a child psychologist, psychiatrist, social worker, guidance counselor, teacher, religious leader, parent, or relative.

(b) If the court appoints a facilitator, the respective counsels for the parties shall pose questions to the child only through the facilitator. The questions shall either be in the words used by counsel, or if the child is not likely to understand the same, in words that are comprehensible to the child and which convey the meaning intended by counsel.

(c) the facilitator shall take an oath or affirmation to pose questions to the child according to the meaning intended by counsel.

SECTION 11. SUPPORT PERSONS -

(a) A child testifying at a judicial proceeding or making a deposition shall have the right to be accompanied by one or two persons of his own choosing to provide him emotional support.

1. Both support persons shall remain within the view of the child during his testimony.


2. One of the support persons may accompany the child to the witness stand, provided the support person does not completely obscure the child form the view of the opposing party, judge, or hearing officer.


3. The court may allow the support person to hold the hand of the child or take other appropriate steps to provide emotional support to the child in the course of the proceedings.


4. The court shall instruct the support persons not to prompt, sway, or influence the child during his testimony.

(b) If the support person chosen by the child is also a witness, the court may disapprove the choice if it is sufficiently established that the attendance of the support during the testimony of the child would pose a substantial risk of influencing or affecting the content of the testimony of the child.

(c) If the support person who is also a witness is allowed by the court, his testimony shall be presented ahead of the testimony of the child.

SECTION 13. COURTROOM ENVIRONMENT - To create a more comfortable environment for the child, the court, may, in its discretion, direct and supervise the location, movement, and deportment of all persons in the courtroom including the parties, their counsel, child, witnesses, support persons, guardian ad litem, facilitator, and court personnel. The child may be allowed to testify from a place other than the witness chair. The witness chair or other place from which the child testifies may be turned to facilitate his testimony but the opposing party and his counsel must have a frontal or profile view of the child during the testimony of the child. The witness chair or other place from which the child testifies may also be rearranged to allow the child to see the opposing party and his counsel, if he chooses to look a t them, without turning his body or leaving the witness stand. The judge need not wear his judicial robe.

Nothing in this section or nay other provision of law, except official in-court identification provisions shall be construed to require a child to look at the accused.

Accommodations for the child under this section need not be supported by a finding of trauma to the child.

SECTION 19. MODE OF QUESTIONING - The court shall exercise control over the questioning of children so as to (1) facilitate the ascertainment of the truth; (2) ensure that questions are stated in a form appropriate to the developmental level of the child; (3) protect children from harassment or undue embarrassment; and (4) avoid waste of time.

The court may allow the child witness to testify in a narrative form.

SECTION 20. LEADING QUESTIONS - The court may allow leading questions in all stages of examination of a child if the same will further the interests of justice.

SECTION 22. CORROBORATION - Corroboration shall not be required of a testimony of a child. his testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion, or judgment subject to the standard of proof required in criminal and non-criminal cases.

SECTION 23. EXCLUDING THE PUBLIC - When a child testifies, the court may order the exclusion form the courtroom of all persons, including members of the press, who do not have a direct interest in the case... The court may motu proprio exclude the public from the courtroom if the evidence to be produced during trial is of such character as to be offensive to decency or public morals.

SECTION 25. LIVE-LINK TELEVISION TESTIMONY IN CRIMINAL CASES WHERE THE CHILD IS A VICTIM OR A WITNESS -

(a) The prosecutor, counsel, or the guardian ad litem may apply for an order that the testimony of the child be taken in a room outside the courtroom and be televised to the courtroom by a live-link television.

Before the guardian ad litem applies for an order under this section, he shall consult the prosecutor or counsel and shall defer to the judgment of the prosecutor or counsel regarding the necessity of applying for an order. In case the guardian ad litem is convinced that the decision of the prosecutor or counsel regarding not to apply will cause the child serious emotional trauma, he himself may apply for the order.

The person seeking such an order shall apply at least 5 days before trial date, unless the court finds on the record that the need for such an order was not reasonably foreseeable.

(b) The court may motu proprio hear and determine, with notice to parties, the need for taking the testimony of the child through live-link television.

(c) The judge may question the child in chambers, or in some comfortable place other than the courtroom, in the presence of the support person, guardian ad litem, prosecutor, and counsel for the parties. the questions of the judge shall not be related to the issues at trial but to the feelings of the child about testifying in the courtroom.

(d) The judge may exclude any person, including the accused, whose presence or conduct causes fear to the child.

(e) The court shall issue an order granting or denying the use of live-link television and stating the reasons therefor. It shall consider the following factors:

1. The age and level of development of the child;


2. His physical and mental health, including any mental or physical disability;


3. Any physical, emotional, or psychological injury experienced by him;


4. The nature of the alleged abuse;


5. Any threats against the child;


6. His relationship with the accused or adverse party;


7. His reaction to any prior encounters with the accused in court or elsewhere;


8. His reaction prior to trial when the topic of testifying was discussed with him by parents or professionals;


9. Specific symptoms of stress exhibited by the child in the days prior to testifying;


10. Testimony of expert or lay witnesses;


11. The custodial situation of the child and the attitude of the members of his family regarding the events about which he will testify; and


12. Other relevant factors, such as court atmosphere and formalities of court procedure.

(f) The court may order that the testimony of the child be taken by live-link television if there is a substantial likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor as the case may be. the trauma must be of a kind which would impair the completeness or truthfulness of the testimony of the child.

(g) If the court orders the taking of testimony by live-link television:

1. The child shall testify in a room separate from the courtroom in the presence of the guardian ad litem; one or both of his support persons; the facilitator and interpreter, if any; a court officer appointed by the court; persons necessary to operate the closed-circuit television equipment, and other persons whose presence is determined by the court to be necessary to the welfare and well-being of the child;


2. The judge, prosecutor, accused, and counsel for the parties shall be in the courtroom. the testimony of the child shall be transmitted by live-link television into the courtroom for viewing and hearing by the judge, prosecutor, counsel for the parties, accused, victim, and the public unless excluded.


3. If it is necessary for the child to identify the accused at trial, the court may allow the child to enter the courtroom for the limited purpose of identifying the accused, or the court may allow the child to identify the accused by observing the image of the latter on a television monitor.


4. The court may set other conditions and limitation on the taking of the testimony that it finds just and appropriate, taking into consideration the best interests of the child.

(h) The testimony of the child shall be preserved... which shall be made part of the court record and shall be subject to a protective order as provided in Section 31 (b).

SECTION 27. VIDEOTAPE DEPOSITION -

(a) The prosecutor, counsel, or guardian ad litem may apply for an order that a deposition be taken of the testimony of the child and that it be recorded and preserved on videotape. Before the guardian ad litem applies for an order under this section, he shall consult with the prosecutor or counsel subject to pars. 2 and 3 of Section 25(a).

(b) If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape.

(c) The judge shall preside at the videotaped deposition of a child. Objections to deposition testimony or evidence, or parts thereof, and the grounds for the objection shall be stated and shall be ruled upon at the time of the taking of deposition. The other persons who may be permitted to be present at the proceeding are:

1. the prosecutor;


2. the defense counsel;


3. the guardian ad litem;


4. the accused subject to subsection (e);


5. other persons whose presence is determined by the court to be necessary to the welfare and well-being of the child;


6. one or both of his support persons, the facilitator and interpreter, if any;


7. the court stenographer; and


8. persons necessary to operate the videotape equipment.

SECTION 28. HEARSAY EXCEPTION IN CHILD ABUSE CASES - A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, may be admitted in evidence in any criminal or non-criminal proceeding subject to the following rules:

(a) Before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the proponent.

(b) In ruling on the admissibility of such hearsay statement, the court shall consider the time, content, and circumstances thereof which provide sufficient indicia of reliability. It shall consider the following factors:

1. whether there is motive to lie;


2. the general character of the child;


3. whether more than one person heard the statement;


4. the timing of the statement and the relationship between the declarant child and witness;


5. cross-examination could not show the lack of knowledge of the declarant child;


6. the possibility of faulty recollection of the declarant child is remote; and


7. the circumstances surrounding the statement are such that there is no reason to suppose the declarant child misrepresented the involvement of the accused.

(c) The child witness shall be considered unavailable under the following situations:

1. is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to severe psychological injury; or
2. is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means.

(d) when the child witness is unavailable, his hearsay testimony shall be admitted only if corroborated by other admissible evidence.

SECTION 30. SEXUAL ABUSE SHIELD RULE -

(a) INADMISSIBLE EVIDENCE - The following evidence is not admissible in any criminal proceeding involving alleged child sexual abuse:

1. evidence offered to prove that the alleged victim engaged in other sexual behavior; and
2. evidence offered to prove the sexual predisposition of the alleged victim.

(b) EXCEPTION - Evidence of specifil instances of sexual behavior by the alleged victim to prove that a person other than the accused was the sourse of semen, injury, or other physical evidence shall be admissible.

SECTION 33. EFFECTIVITY - 15 December 2000.