CHAPTER 44

FORMERLY

HOUSE BILL NO. 65

AS AMENDED BY

HOUSE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 11 OF THE DELAWARE CODE RELATING TO VICTIMS AND WITNESSES WITH COGNITIVE DISABILITIES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE :

Section 1. Amend Chapter 94, Title 11 of the Delaware Code, by designating the existing sections thereof as "Subchapter I. Victims Generally" and by adding thereto a new Subchapter II as follows:

"Subchapter II. Victims and Witnesses with Cognitive Disabilities

§ 9421. Legislative intent.

The General Assembly finds that it is necessary to provide every victim and witness with a cognitive disability, particularly those whose disability renders them the emotional or mental equivalent of a child, with additional consideration and different treatment than that usually required for adult victims and witnesses who are not cognitively disabled. It is therefore the intent of the General Assembly to provide each victim and witness with a cognitive disability who is involved in a criminal proceeding with certain fundamental rights and protections.

§ 9422. Definitions.

The following words, terms and phrases, when used in this subchapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

(1) 'Cognitive disability' means a developmental disability that substantially impairs an individual's cognitive abilities including, but not limited to, delirium, dementia, and other organic brain disorders for which there is an identifiable pathologic condition, as well as non-organic brain disorders commonly called functional disorders. ‘Cognitive disability’ also includes conditions of mental retardation, severe cerebral palsy, and any other condition found to be closely related to mental retardation because such condition results in the impairment of general intellectual functioning or adaptive behavior similar to that of persons who have been diagnosed with mental retardation, or such condition requires treatment and services similar to those required for persons who have been diagnosed with mental retardation.

(2) 'Victim' or 'witness' shall not include any person with a cognitive disability accused of committing a felony; provided, however, that the word 'victim' or 'witness' may, in the court's discretion, include:

a. A person with a cognitive disability where such person's participation in a felony appears to have been induced, coerced, or unwilling; or

b. A person with a cognitive disability who has participated in the felony, but who has subsequently and voluntarily agreed to testify on behalf of the State.

§ 9423. Expedited proceedings.

In all criminal proceedings involving a victim or witness with a cognitive disability, the court and the prosecution shall take appropriate action to ensure a prompt trial in order to minimize the length of time he or she must endure the stress of his or her involvement in the proceedings. In ruling on any motion or other request for a delay or continuance of proceedings, the court shall consider and give weight to any adverse impact such delay or continuance might have on the well-being of any victim or witness with a cognitive disability.

§ 9424. Additional rights and services.

(a) A victim or witness with a cognitive disability is entitled to an explanation, in language he or she understands, of all legal proceedings in which he or she is to be involved.

(b) A victim or witness with a cognitive disability is entitled to be accompanied, in all proceedings, by a 'friend' or other person in whom he or she trusts, which person shall be permitted to advise the judge, when appropriate and as a friend of the court, regarding the cognitively disabled person's ability to understand proceedings and questions.

(c) A victim or witness with a cognitive disability is entitled to information about, and referrals to, appropriate social services and programs to assist him or her, and his or her family, in coping with the emotional impact of the crime, and the subsequent court proceedings in which he or she is to become involved."

Approved June 12, 2003