Amicus Curiae Brief — Idaho v. Wright

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femme Cou US. |

\|| FELED

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|| MAR 2 1990

_ 960 \ iy. F. SPANIOL, JR.

No. 89-260 gOSEPH

In The _ dagen

Supreme Court of the United States

October Term, 1989

The State of Idaho, Petitioner

Laura Lee Wright,

Respondent

On Writ of Certiorari to

The Supreme Court of Idaho

Brief Of Amicus Curiae

Commonwealth Of Pennsylvania

And Other Amici Listed Inside Cover*

In Support Of Petitioner

Ernest D. Preate, Jr.

Attorney General

Marylou Barton

Chief Deputy Attorney General

Child Abuse Prosecution

Assistance Unit

1600 Strawberry Square

Harrisburg, PA 17120

*Each Sponsored

According To Rule (717) 783-3014

37.5 By Its

Attorney General As

Listed Inside Cover

- ew “whe \/-id te . or _ = —_" ¢

~ -

The Honorable Douglas B. Baily

Attorney General of Alaska

P.O. Box K, State Capitol

Juneau, Alaska 99811-0300

The Honorable Robert K. Corbin

Attorney General of Arizona

1275 West Washington

Phoenix, Arizona 85007

The Honorable Steve Clark

Attorney General of Arkansas

200 Tower Building

4th and Center Streets

Little Rock, Arkansas 72201

The Honorable Duane Woodard

Attorney General of Colorado

1525 Sherman Street - Second Floor

Denver, Colorado 80203

The Honorable Charles M. Oberly, III

Attorney General of Delaware

820 North French Street, 8th Floor

Wilmington, Delaware 19801

The Honorable Robert A. Butterworth

Attorney General of Florida

State Capitol

Tallahassee, Florida 32399-1050

The Honorable Neil F. Hartigan

Attorney General of Illinois

100 W. Randolph Street, 12th Floor

Chicago, Illinois 60601

The Honorable Linley E. Pearson

Attorney General of Indiana

219 State House

Indianapolis, Indiana 46204

The Honorable Tom Miller

Attorney General of Iowa

Hoover Building - Second Floor

Des Moines, Iowa 50319

The Honorable Robert T. Stephan

Attorney General of Kansas

Judicial Center - Second Floor

Topeka, Kansas 66612

The Honorable Frederic J. Cowan

Attorney General of Kentucky

State Capitol, Room 116

Frankfort, Kentucky 40601

The Honorable William J. Guste, Jr.

Attorney General of Louisiana

2-3-4 Loyola Building

New Orleans, Louisiana 70112

The Honorable J. Joseph Curran, Jr.

Attorney General of Maryland

Munsey Building

Calvert and Fayette Streets

Baltimore, Maryland 21202-1909

The Honorable James M. Shannon

Attorney General of Massachusetts

One Ashburton Place - 20th Floor

Boston, Massachusetts 02108

The Honorable Frank J. Kelley

Attorney General of Michigan

Law Building

Lansing, Michigan 48913

The Honorable Mike Moore

Attorney General of Mississippi

P.O. Box 220

Jackson, Mississippi 39205

The Honorable William L. Webster

Attorney General of Missouri

Supreme Court Building,

101 High Street

Jefferson City, Missouri 65102

The Honorable Marc Racicot

Attorney General of Montana

Justice Building

215 North Sanders

Helena, Montana 59620

The Honorable Robert M. Spire

Attorney General of Nebraska

2115 State Capitol

Lincoln, Nebraska 68509

The Honorable Brian McKay

Attorney General of Nevada

Heroes Memorial Building

Capitol Complex

Carson City, Nevada 89710

The Honorable John P. Arnold

Attorney General of New Hampshire

208 State House Annex

Concord, New Hampshire 03301

The Honorable Robert DelTufo

Attorney General Designate

of New Jersey

Richard J. Hughes Justice Complex

Trenton, New Jersey 08625

The Honorable Hal Stratton

Attorney General of New Mexico

Bataan Memorial Building

Galisteo Street

Santa Fe, New Mexico 87503-1508

The Honorable Lacy H. Thornburg

Attorney General of North Carolina

Department of Justice

2 East Morgan Street

Raleigh, North Carolina 27602

The Honorable Nicholas Spaeth

Attorney General of North Dakota

Department of Justice

2115 State Capitol

Bismarck, North Dakota 58505

The Honorable Robert H. Henry

Attorney General of Oklahoma

112 State Capitol

Oklahoma City, Oklahoma 73105

The Honorable T. Travis Medlock

Attorney General of South Carolina

Rembert Dennis Office Building

1000 Assembly Street

Columbia, South Carolina 29211

The Honorable Roger A. Tellinghuisen

Attorney General of South Dakota

State Capitol Building

Pierre, South Dakota 57501

The Honorable Paul Van Dam

Attorney General of Utah

236 State Capitol

Salt Lake City, Utah 84114

The Honorable Jeffrey L. Amestoy

Attorney General of Vermont

Pavillion Office Building

Montpelier, Vermont 05602

The Honorable Godfrey R. de Castro

Attorney General of the Virgin Islands

Department of Justice

G.E.R.S. Complex, 2nd Floor

St. Thomas, Virgin Islands 00801

The Honorable Mary Sue Terry

Attorney General of Virginia

101 North 8th Street - 5th Floor

Richmond, Virginia 23219

The Honorable Joseph B. Meyer

Attorney General of Wyoming

123 State Capitol

Cheyenne, Wyoming 82002

QUESTION PRESENTED FOR REVIEW

Whether the “indicia of reliability”

and “particularized guarantees of

trustworthiness” mandated by the Sixth

Amendment Confrontation clause of the

United States Constitution require that

the hearsay statement of a very young

victim of sexual abuse to an examining

pediatrician be excluded unless’ the

prosecution establishes that (a) the

interview was either audio or video-

taped; (b) leading questions were not

used; and (3) the examining pediatrician

conducting the interview did not have

any preconceived idea of what the child

should be disclosing.

(i)

TABLE OF CONTENTS

Question Presented.......-seeeeeees (i)

Table of AuthoritiesS........e+esee6. (iii)

Interest of Amici Curiae........... 1

Summary of Argument.....--+-e+eeeeeees 3

Argument... ..seeeeeeeeeerecees seceee G

COME lUBION. .cccccccccccecesssccccces 29

(ii)

CASES Page(s)

758 S.W.2d 339

(Tex. App. Texarkana 1988)

petition for discretionary

review granted.........eceeeeeee

Calif , G

399 U.S. 149 (1970).......2000-

Coy v, Jowa

487 U.S. ’

Be BeGec BOO CROGO) ic cccceece

Drumm v. Commonwealth

No. 87-SC-848-MR (KY filed

Jan. 18, 1990)

Tt Ce Mic cceneeeeeese

Globe Newspaper Co, v. Superior

Court

457 U.S. $96 (1982)... ccccccces

Goldade v,. State

674 P.2d 721 (Wyo. 1983),

cert. denied, sub nom.

Goldade v., Wyoming,

467 U.S. 1253 (1984)...........

Holland v, State

770 S.W.2d 56

(Tex App. Austin 1989)

petition for discretionary

SOVEGW GEGMEEEs cccccccccccecocs

(iii)

CASES

397 U.S. 337 (1970)... eee eeeee 15

292 Ark. 632,

732 S.W.2d 817 (1987).....-446- 18

874 F.2d 1222 (7th Cir. 1989)

cert. denied ___ U.S. ___,

110 S.Ct. 835 (1990).......-666- 15

458 U.S. 747 (1982)....-++eee4- 13

Ohio v. Roberts

448 U.S. 56 (1980).......-- eee passim

732 P.2d 1132 (Colo. 1986)..... 13

140 Ill. App.3d 78,

94 Ill. Dec. 500,

488 N.E.2d 326 (1986).........- 18

726 P.2d 249 (Colo. App. 1986). 12,

536 So.2d 206 (Fla 1988)

U.S. +

109 S.Ct. 3253 (1989).......... 18,

(iv)

CASES

Sosebee v. State

257 Ga. 298,

357 S.E.2d 562 (1987).........

State v. Bellotti

383 N.W.2d 308

ES ee

State v. Deanes

323 N.C. 5068,

374 S.E.2d 249 (1988)

cert. denied

Deanes v. North Carolina

U.S. -

109 &.Ct. 2455 (1989).........

150 Vt. 341,

Saw Rete mee GEOR P ccc ccdecces

State v. John Doe

105 Wash.2d 889,

Vee Wem BOO CARRE oo siwd ccicce cx 19

State v. Myatt

237 Kan. 17,

Cee Pome Gee CROP civic cecce cvs 19,

State v. Nelson

138 Wis.2d 418,

406 N.W.2d 385 (1987).......... 12

State v. Nelson

42 Utah Adv. Rep. 18,

3 X ©) 2. |

(v)

CASES Page(s)

443 N.W.2d 8 (S.D. 1989)....... 12

153 Ariz. 191,

735 P.2d 801 (1987)... eevee 12,

13, 18

State v. Wright

116 Idaho 382, 775 P.2d

1224 (1989), cert.

granted sub nom. Idaho v.

Wright, ao ,. ae

S.ce. Be 3 (1990) ie eabe 66060 6% 12,

751 S.W.2d 48 (Mo. 1988)....... 19

414 U.S. 17 (1973). ccccccccves 15

475 U.S. 387 (1986).....---06-- 6,

665 F.2d 616 (5th Cir. 1982)... 15

Statutes

Alaska Code of Criminal Procedure

§ 12.40.110 (1985)... - eee ee eeeeces 10

13 Ariz. Rev. Stat. Ann.

§ 1416 (Supp. 1987)....---eeeeeeees 10

(vi)

Ark. R. Evid. 803 6 es

Cal. Evid. Code §S 1228 (West 1985). 12

Col. Rev. Stat. § 13-25-129 (1987). 12

Fla. Stat. § 90.803(23)

(Supp. 1988)....

eetites adhis dies olin 10,

24, 26

Ga. Code Ann. § 24-3-16............ 10

Idaho Code 19-3024 (1987).......... 10

Ill. Ann. Stat. ch. 38

: ; , Para.

115-10 (Smith-Hurd 1988 BP. cctse 10

Ind. Code 35-37-4-6 (1988)......... ll

Kan Stat. Ann. § 60-460

RES een eres ll

Ky. Rev. Stat. Ann.

ys a 1l

Me. Rev. Stat Ann. tit 15,

Bee CM NLD. oc cecccccccccce ll

Md. Cts. Jud. Proc. Code Ann

§ 9-103.1 (1988 Dich agectis cee 11

67 Michigan Bar J. 68

(July 1988) (proposed)............. ll

Mimm.R.Bvid. BOB (24). cccccccccccee 23

Minn. Stat. Ann. § 595.02(3

a Per eee oa eeeees ll

13, 23

Miss. R. 803(25) (proposed)........

Mo. Rev. Stat. § 491.075 (1988)....

N.D.R. 803 (24) (eff. 3/1/90).....-.

Nev. Rev. Stat. Ann.

§ 51.385 (1986, Supp. 1988). cccccs

N.J. Evid. R. 63 (33)..----eeeeeees

Okla. Stat. Ann. tit. 12,

§ 2803.1 (West Supp. Peer

Or. Rev. Stat. § 40.460 (1989).....

42 Pa.Cons.Stat.Ann.

§ 5985.1 (1990 Pa. Legis. Serv.

Act 100 (Purdon))....--+-+-+-+eeeeee8

S.D. Codified Laws Ann.

§ 19-16-38 (1987)... --- eee reer eees

Tex. Code Crim.Proc.Ann.

art. 38.072 (Vernon 1985)......-+---

Utah Code Ann.

§ 76-5-411(1) (1985)... cece eceevves

Vt. R.E. 804(9) (Supp. 1988)......-.

Wash. Rev. Code § 9A.44.120 (1988).

Federal Rules of Evidence

Fed. .R.Evid. 803(4)...-- eee cece eeees

(viii)

Fed.R.Evid. 803(24)

Miscellaneous

Protecting Child/Victim Witness

Nat'l Legal Resource Ctr. for

Child Advocacy and Protection

(Feb. 1986)

(ix)

INTERESTS OF AMICI

Amici curiae are States, each of

which recognizes the important public

policy interests served by prosecuting

those who sexually abuse children. The

States have a compelling interest, as

well, in protecting child witnesses.

Thirty States have reflected’ that

interest, either by enacting statutes

specifically designed to admit the hear-

say declarations of certain child

victims, or by allowing such testimony,

through the use of other hearsay excep-

tions established by rule or by case

law. (See Appendix where the _ state

statutes and rules are set forth at

length). By these solutions, the States

have attained the delicate constitu-

tional balance necessary to achieve

justice for both the child victims and

the defendants in these prosecutions.

The decision of the Supreme Court of

Idaho requires the taping of child

victim interviews, forbids the use of

leading questions, and denies the in-

terviewer access to background informa-

tion which might disclose the abuse.

These requirements, if affirmed by this

Court, would invalidate the States’

varied responses to this difficult

issue, for none of their responses meet

the Idaho court's restrictive criteria.

The amici States accordingly support

Idaho in urging reversal of the Idaho

Supreme Court.

SUMMARY OF ARGUMENT

The Sixth Amendment's Confrontation

Clause, applicable to the States by the

Fourteenth Amendment, does not prohibit

the use at a criminal trial of all

hearsay statements. Consideration of

public policy and the necessities of

certain criminal prosecutions sometimes

require the introduction of these

statements.

The States have strong public

policies in successfully prosecuting

sexual abusers of children and in

protecting the child victims of these

abusers. Without rules allowing for the

admission at trial of the out-of-court

statements of these child victims, these

strong public policies will be defeated.

In balancing an accused's Confronta-

tion Clause rights against the States’

interests in child molestation cases,

the accused's rights must yield where

the hearsay statements of child sexual

abuse victims possess particularized

guarantees of trustworthiness. Such

guarantees are sufficient to protect the

rights of the accused.

Thirty States have adopted rules

allowing for the use of out-of-court

Statements by child sex abuse victims

where the trial judge, after hearing,

determines that the statements are

trustworthy or reliable. These rules

Satisfy the requirements of this Court

needed to overcome a Confrontation

Clause hearsay challenge. To abrogate

these’ rules, Or to make them _ so

restrictive as to make them useless as

did the court below, will defeat the

States' strong interests in this area.

Hearsay statements of child sexual abuse

victims, necessary to the successful

prosecution of sexual abusers of

chiidren, do not run afoul of _ the

Confrontation Clause when they - possess

particularized guarantees of trust-

worthiness as required by the rules of

the several States. This Court should

so hold.

The Confrontation Clause

Not Prohibit The piteaeikinn

Of Hearsay Statements Of Child

Sexual Abuse Victims Where The

Statements Possess Guarantees

of Trustworthiness.

In this case the Court must again

consider “the relationship between the

Confrontation Clause and the hearsay

rule with its many exceptions.” Ohio v.

Roberts, 448 U.S. 56, 62 (1980). Though

"{t]he Court in Roberts remained ‘[cJon-

vinced that “no rule will perfectly

resolve all possible problems”' and re-

jected the ‘invitation to overrule a

near-century of jurisprudence’ in order

to create such a rule, 448 U.S. at 68,

n.9," United States v. Inadi, 475 U.S.

387, 392 (1986), it is Roberts which

Provides the analytical framework for

resolution of the instant case.

The Roberts Court, after rejecting a

literal reading of the Confrontation

Clause which “would abrogate virtually

every hearsay exception, a result long

rejected as unintended and too extreme,”

conceded "that the clause was intended

to exclude some hearsay.” Roberts,

supra, 448 U.S., at 63. The Court

recognized, however, that competing

interests--"considerations of public

policy and the necessities of the

case"-- sometimes warranted dispensing

with confrontation at trial. Id@., at

64. The “interests” identified by the

Court in Roberts were each state's

“strong interest in effective law

enforcement, and in the development and

precise formulation of the rules of

evidence applicable in criminal

proceedings.” Id. In resolving’ the

several cases which called into question

“the relationship between the con-

frontation clause and the hearsay rule”

the Court “has sought to accommodate

these competing interests.” Id., at 64.

See also Coy vy. Jowa, 487 U.S., at ad

108 §.Ct., at 2805 (O'Connor, J., con-

curring) ("The protection of child

witnesses is, in my view and in the view

of a substantial majority of the States

[an important public] policy.").

The strong public policy of

effective enforcement of the States’

child sexual abuse laws necessitates

this exception to the hearsay rule. The

child victims of sexual abuse are often

unavailable to testify because of their

age, or because of the trauma resulting

from the very crimes that have been

committed upon them. The defendant who

picks these vulnerable people as victims

should not benefit from his or her

misconduct. As the Court of Appeals for

the Seventh Circuit observed, “how

ironic it would be if the child molester

could use the trauma inflicted on his

victim as the fulcrum for levering his

way to freedom." Nelson v. Farrey, 874

F.2d 1222, 1230 (7th Cir. 1989), cert.

denied, U.S. » 836 8.60. 63S

(1997).

In many child abuse cases, con-

frontation is impossible due to the

actions of the accused, the person

asserting the right. Such a defendant

should not benefit from abusing a child,

just as the law does not allow a de-

fendant to benefit from murdering a

witness against him, absenting himself

from trial, or encaging in contumacious

conduct in a courtroom. Taylor v.

United States, 414 U.S. 17 (1973);

Illinois v. Allen, 397 U.S. 337 (1970);

and United States v. Thevis, 665 F.2d

616 (Sth Cir. 1982). Voiding these

state rules of evidence will have that

effect.

These public policy concerns have

been well-stated by the intermediate

appellate court of Minnesota in up-

holding a state statute in the face of a

Confrontation Clause challenge. The

court said:

The Minnesota legislature

has enacted a statute in

order to extend the

circumstances in which

hearsay testimony of child

abuse victims is admis-

sible, consistent with the

constitutional guarantees

incorporated into the

statute. The legislature

did not want to allow child

abusers to escape convic-

tion merely by choosing

victims who, due to their

age or otherwise, are un-

available to testify at

trial.

State v. Bellotti, 383 N.W.2d 308, 316

(Minn. App. 1986).

The States have responded to this

problem in a logical and intelligent

manner. They have utilized established

» Me

legal methods to address the phenomenon

of sexual abuse of children by building

on past decisions of this Court. The

responses have ensured that the hearsay

statements cf these sexually abused

child victims possess the particularized

guarantees of trustworthiness which this

Court has said are necessary to overcome

any Confrontation Clause hearsay chal-

lenge. See Coy v. Jowa, 487 U.S., at __,

108 S.Ct., at 2803. With the exception

of the Supreme Court of Idaho, * every

court which has addressed such a

challenge has rejected it, relying on

this Court's opinions in Ohio v.

Roberts, supra, and United States v.

4state v. Wright, 116 Idaho 383,

775 P.2d 1224 (1989), cert. granted sub

nom. Idaho v. Wright, _ U.S. 110

S.Ct. 833 (1990).

——e 9

&/29 «

Inadi, supra. Legislators and judges

have recognized the necessity of

5See e.g., State v. Robinson, 153

Ariz. 191 735 P.2€d 801 (1987), (although

the statute was violative of state

separation of powers doctrine, it did

not violate Confrontation Clause; more-

over, the statements were still

admissible under other exceptions to

hearsay rule); Johnson v. State, 292

Ark. 632, 732 S.W.2d 817 (1987)

(upholding rule of evidence against

Confrontation Clause challenge); People

v. Galloway, 726 P.2d 249 (Colo. App.

1986) (upholding statutory hearsay

exception against challenge based on

Confrontation Clause in case where child

victim testified at trial); Perez v.

State, 536 So.2d. 206 (Fla. 1988), cert.

denied, sub. nom. Perez v. Florida

U.S. , 109 §.Ct. 3253 (1989) (up-

holding statutory hearsay exception for

certain statements of child victims of

sexual abuse where victim was un-

available as 4 witness and where

Confrontation Clause challenge to

evidence was made); Sosebee v. State,

257 Ga. 298, 357 S.E.2d 562 (1987)

(upholding against Confrontation Clause

challenge a statutory hearsay exception

which required the victim's availability

to testify); People v. Boastick, 140

Ill. App. 3d 78, 94 I11. Dec. 500, 488

N.E.2d 326 (1986) (upholding statutory

exception in factual setting where

(footnote continued on next page)

oe Dt. «

providing answers to the problem of

children so traumatized by the criminal

act of abuse that they are unable to

testify against their abusers. The

responses have been constitutional as a

review of the state rules and decisions

upholding them in the face of Con-

frontation Clause challenges demon-

strates.

> (continued) victim testified);

State v. Myatt, 237 Kan 17, 697 P.2d 836

(1985) (upholding statutory hearsay

exception where victim was disqualified

as witness); State v. Bellotti, 383 N.wW.

2d 308 (Minn. App. 1986) (same); State

v. Wright, 751 S.W. 2d 48 (Mo. 1988)

(upholding statute against a Confronta-

tion Clause challenge) ; Buckley v.

State, 758 S.W.2d 339 (Tex. App.

Texarkana 1988), petition for

discretionary review denied, and Holland

v. State, 770 S.W.2d (Tex. App. Austin

1989) petition for discretionary review

denied, (same); State v. Nelson, 72 Utah

Adv. Rep. 15, 725 P.2d 1353 (1986)

(same); State v. Gallagher, 150 Vt. 341,

554 A.2d 221 (1988) (same); State v.

John Doe, 105 Wash 2d. 889, 719 P.2d 554

(1986) (same).

Taking its cue from this Court's

decision in Qhio v. Roberts, Kansas, for

example, adopted a rule of evidence

allowing a child crime victim's hearsay

statements if “the trial judge finds,

after a hearing on the matter, that the

child is disqualified or unavailable as

a witness, the statement is apparently

reliable and the child was not induced

to make the statement falsely by use of

threats or promises. ..”" Kan.Stat.Ann.

§ 60-460(dd) (1983 Supp. 1988); Appendix

pp. 13-14. Rejecting a challenge based

upon the Confrontation Clause, the

Kansas Supreme Court found the

evidentiary rule to fully comply with

this Court's dictates in Roberts: a

judicial determination of unavailability

and particularized guarantees of

trustworthiness, required since the

Statute was not a firmly rooted hearsay

exception. State v. Myatt, 237 Kan.

17, __, 697 P.2d 836, 843 (1985).

The Court in Myatt reflected upon

the necessity of the hearsay statements

at trial. The child victim's out-of-

court statements often constitute the

only proof of the crime of sexual

abuse. The offender is usually a

relative or close acquaintance who has

the opportunity to be alone with victim.

Witnesses are rare, as people ordinarily

do not molest children in front of

others. Corroborating physical evidence

may be absent or inconclusive. For many

reasons, the child may be unable to

testify at trial. IJId., at 841.

Of trustworthiness, the Kansas Court

stated:

The determination of re-

liability and trust-

worthiness must be made on

a case-by-case basis. Such

—

factors as the age of the

child; his or her physical

and mental condition; the

circumstances of the al-

leged event; the language

used by the child; the

presence of corroborative

physical evidence; the re-

lationship of the accused

to the child; the child's

family, school, and peer

relationships; any motive

to falsify or distort the

event; and the reliability

of the testifying witness

can be examined. See,

e.g., United _States _v.

Nick, 604 F.2d 1199 (9th

Cir. 1979); State v, Rod-

riguez, 8 Kan. App.2d at

355-57, 657 P.2d 79.

Contrary to the defendant's

argument, the statute does

t l] j > . f t ]

hearsay statements of a

} J ] j > t f t }

sole

was made by a child.

Id. (Emphasis supplied).

While corroborative physical

evidence is but one factor in a trust-

worthiness determination in Kansas,

corroborative

Minnesota requires

evidence where the child is unavailable

e 22.

to testify. Minn. Stat. Ann. §

595.02(3)(b)(ii); Appendix pp. 20-21.

The Minnesota statute withstood a

constitutional challenge based upon the

Confrontation Clause in State v,

Bellotti, 383 N.W.2d 308 (Minn. App.

1986).

There were two child victims in the

Bellotti case--one who testified, and

one who did not. Both children were

females, and each was four years old.

The child who testified did so after the

court found ten indicia of reliability

in a hearing outside the presence of the

jury.

As to hearsay statements of T.C.

(the child who testified) about assaults

on the other child, C.B., the court

admitted them under Minn.R.Evid. 803

(24), the residual hearsay exception,

applying the same indicia of reliability

« 29 «

used to admit T.C.'s statements about

the assault on herself. Because T.C.

testified and was available for

cross-examination, the court said no

confrontation right was implicated,

citing California v. Green, 399 U.S.

149, 158 (1970).

As to C.B.'s out-of-court

Staterents, since C.B. did not testify

due to a finding of incompetency, and,

therefore, unavailability, not only were

the indicia of reliability necessary, of

which the court found seven, but the

necessary independent corroboration was

found in T.C.'s direct testimony and

defendant's partial confession.

Florida also mandates a showing of

“corroborative evidence of the abuse or

offense” where the child hearsay

declarant is unavailable as a witness.

Fla.Stat. § 90.803(23)(9) 2 b (West

eo D4 «

—

pe ot ede see. Aa Ca de See

Supp. 1989), Appendix pp. 7-8. Up-

holding the statute, the Florida Supreme

Court in Perez v. State, 536 So.2d 206

(1988), cert.denied, sub nom. Perez v.

Florida, oe =, 6d b6.6e.- B563

(1989), found the statute:

follows the general

approach set forth by the

United States Supreme Court

in Ohio v. Roberts. ... .

[T]he statute provides that

before the out-of-court

statements of the child

victim may be admitted the

court must first find, in a

hearing, that “the time,

content, and circumstances

of the statement provide

sufficient safeguards of

reliability.” Secondly,

the child victim must

either testify or be un-

available as a witness. If

the child testifies, the

defendant has been afforded

an opportunity to confront

the hearsay declarant. See

California v. Green, 399

U.S. 149, 90 S.Ct. 1930, 26

L.Ed.2d 489 (1970). If the

child victim does not

testify, section 90.803(23)

requires, in addition to a

determination that the

child is unavailable,

“other corroborative

evidence of the abuse or

offense,” which provides

particularized guarantees

of trustworthiness.

Fla. ‘ , 536 So.2d 206, 209.

The Florida statute suggests that the

court consider “the mental and physical

age and maturity of the child, the

nature and duration of the abuse or

offense, the relationship of the child

to the offender, the reliability of the

assertion, the reliability of the child

victim, and any other factor deemed

appropriate” in determination of the

“sufficient safeguards of reliability”

to allow the proferred hearsay. Fla.

Stat. § 90.803 23(a)(1)(West Supp.

1989). These factors which are not an

“exhaustive list of elements to be

considered", Perez, supra at 210, must

be supplemented by corroborative

evidence where the victim is unavailable.

These States, ° along with

Pennsylvania, have exercised their power

to determine rules of evidence in

criminal proceedings. Each permits

introduction of hearsay declarations of

child sexual abuse victims consistent

with the defendant's Confrontation

Clause rights as outlined by this Court.

The States have properly considered

and resolved this serious national

problem. These child hearsay’ rules

6as well as others, see infra n.

1-3. A sample statute of the American

Bar Association's National Legal

Resource Center for Child Advocacy and

Protection has served as the model for

legislation in a number of States. The

model statute was carefully drafted in

accordance with this Court's mandates to

afford the perpetrator his or wher

confrontation rights. "Protecting

Child/Victim Witnesses”, National Legal

Resource Center for Child Advocacy and

Protection, February, 1986, pp. 5-9,

82. Appendix, pp. 40-44.

o £2. «

properly balance the need for reliable

testimony against the particular

problems of the child witness and, by

requiring that the out-of-court

statements possess particularized

guarantees of trustworthiness, satisfy

the requirements of the Confrontation

Clause. The Idaho Supreme Court applied

this Court's prior decisions in too

restrictive a fashion without giving due

regard to the strong public policies

here involved and to the necessities of

these cases. Amici respectfully urge

this Court to reverse the decision

below.

—~

CONCLUSION

For the reasons stated above, amici

curiae request that this Honorable Court

reverse the judgment of the Supreme

Court of Idaho.

Respectfully submitted,

Ernest D. Preate, Jr.

orney General

onwealth of Pennsylvania

Assistance Unit

e 20 «

TABLE OF CONTENTS FOR APPENDIX

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(ii)

APPENDIX

Alaska - Code of Criminal Procedure

Sec. 12.40.110 Hearsay evidence in

prosecutions for sexual offenses. (a) In

a prosecution for an offense under AS

11.41.410--11.41.440 or 11.41.455,

hearsay evidence of a statement related

to the offense, not otherwise

admissible, made by a child who is the

victim of the offense may be admitted

into evidence before the grand jury if

(1) the circumstances of the

statement indicate its reliability;

(2) the child is under 10 years of

age when the hearsay evidence is sought

to be admitted;

(3) additional evidence is

introduced to corroborate the statement;

and

(4) the child testifies at the grand

jury proceeding or the child will be

available to testify at trial.

(b) In this section “statement”

means an oral or written assertion or

nonverbal conduct if the nonverbal

conduct is intended as an assertion. (§

1 ch 41 SLA 1985)

Arizona - Criminal Code Title 13

§ 13-1416. Admissibility of minor's

statement; notice

A. Except as otherwise provided in

title 8, a statement made by e2 minor who

is under the age of ten years describing

any sexual offense or physical abuse

performed with, on or witnessed by the

minor, which is not otherwise admissible

by statute or court rule, is admissible

in evidence in any criminal or civil

proceeding if both of the following are

true:

1. The court finds, in an in camera

hearing, that the time, content and

circumstances of the statement provide

sufficient indicia of reliability.

2. Either of the following is true:

(a) The minor testifies at the

proceedings.

(b) The minor is unavailable as a

witness, provided that if the minor is

unavailable as a witness, the statement

may be admitted only if there is

corroborative evidence of the statement.

B. A statement shall not be

admitted under this section unless the

proponent of the statement makes known

to the adverse party his intention to

offer the statement and the particulars

of the statement sufficiently in advance

of the proceedings to provide’ the

adverse party with a fair opportunity to

prepare to meet the statement.

Arkansas - Rules of Evidence

Rule 803. Hearsay exceptions -

Availability of declarant immaterial.-

The following are not excluded by the

hearsay rule, even though the declarant

is available as a witness:

x «8

(25)(A) A statement made by a child

under ten (10) years of age concerning

any act or offense against the child

involving sexual offenses, child abuse

Or incest is admissible in any criminal

proceeding in a court of this State,

provided:

l. The Court finds, in a hearing

conducted outside the presence of the

jury, that the statement offered

possesses a reasonable likelihood of

trustworthiness using the following

criteria:

the age of the child

the maturity of the child

the time of the statement

the content of the statement

the circumstances surrounding the

giving of the statement

f. the nature of the offense involved

g. the duration of the offense

involved

h. the relationship of the child to

the offender

i. the reliability of the assertion

j. the reliability-credibility of

the child witness before the Judge

k. the relationship or status of the

child to the one offering the statement

1. any other corroborative evidence

of the act which is the subject of the

statement.

m. any other fact or which the Court

at the time and under the circumstances

deems relevant and appropriate.

2. The proponent of the statement

shall give the adverse party reasonable

notice of his intention to offer the

statement and the particulars of the

statement.

3. If a statement is admitted

pursuant to this Section the Court shall

instruct the jury that it is for the

jury to determine the weight and credit

to be given the statement and that, in

making the determination, it shall

consider the age and maturity of the

child, the nature of the statement, the

circumstances under which the statement

was made, and any other relevant factors.

4. This Section shall not be

construed to limit the admission of an

offered statement under any other

hearsay exception or applicable Rule of

Evidence.

eaace

California - Evidence Code

§ 1228. Statement of minor child as

victim of sexual abuse.

Notwithstanding any other provision of

law, for the purpose of establishing the

elements of the crime in order to admit

as evidence the confession of a person

accused of violating Section 261, 264.1,

285, 286, 288, 288a, 289, or 647a of the

Penal Code, a court, in its discretion,

may determine that a statement of the

complaining witness is not made

inadmissible by the hearsay rule if it

finds all of the following:

(a) The statement was made by a minor

child under the age of 12, and the

contents of the statement were included

in a written report of a law enforcement

official or an employee of a county

welfare department.

(b) The statement describes the minor

child as a victim of sexual abuse.

defendant's confession. The court shal)

view with caution the testimony of a

person recounting hearsay where there is

evidence of personal bias or prejudice.

(d) There are no circumstances such as

Significant inconsistencies between the

confession and the statement concerning

material facts establishing any element

of the crime or the identification of

the defendant, that would render the

statement unreliable.

(e) The minor child is found to be

unavailable pursuant to paragraph (2) or

(3) of subdivision (a) of Section 240 or

refuses to testify.

(f£) The confession was memorialized in a

trustworthy fashion by a law enforcement

official.

If the prosecution intends to offer a

statement of the complaining witness

pursuant to this section, the

prosecution shall serve a written notice

upon the defendant at least ten days

prior to the hearing or trial at which

the prosecution intends to offer the

statement.

If the statement is offered during

trial, the court's determination shall

be made out of the presence of the

jury. If the statement is found to be

admissible pursuant to this section, it

shall be admitted out of the presence of

the jury and solely for the purpose of

determining the admissibility of the

confession of the defendant.

Colorado —- Evidence-General Provisions

§ 13025-129. Statements of child victim

of unlawful sexual offense against a

child or of child abuse - hearsay

exception. (1) An out-of-court statement

made by a child, as child is defined

under the statutes which are the subject

of the action, describing any act of

sexual contact, intrusion, or

penetration, as defined in section

18-3-401, C.R.S. performed with, by, on,

or in the presence of the child

declarant, not otherwise admissible by a

statute or court rule which provides an

exception to the objection of hearsay,

is admissible in evidence in any

criminal, delinquency, or civil

proceedings in which a child is a victim

of an unlawful sexual offense, as

defined in section 18-3-411 (1), C.R.S.

or in which a child is the subject of a

proceeding alleging that a child is

neglected or dependent under section

19-1-104(1)(b), C.R.S., and an

out-of-court statement by a child, as

child is defined under the statutes

which are the subject of the action,

describing any act of child abuse, as

defined in section 18-6-401, C.R.S., to

which the child declarant was subjected

or which the child declarant witnessed,

not otherwise admissible by a statute or

court rule which provides an exception

to the objection of hearsay, is

admissible in evidence in any criminal,

delinquency, or civil proceedings in

which a child is a victim of child abuse

or the subject of a proceeding alleging

that a child is neglected or dependent

under section 19-1-104(1)(b), C.R.S., if:

(a) The court finds in a hearing

conducted outside the presence of the

jury that the time, content, and

circumstances of the statement provide

sufficient safeguards or reliability; and

(b) The child either:

(I) Testifies at the proceedings; or

(II) Is unavailable as a witness and

there is corroborative evidence of the

act which is the subject of the

statement.

(2) If a statement is admitted

pursuant to this section, the court

shall instruct the jury that it is for

the jury to determine the weight and

credit to be given the statement and

that, in making the determination, it

shall consider the age and maturity of

the child, the nature of the statement,

the circumstances under which the

statement was made, and any other

relevant factor.

(3) The proponent of the statement

shall give the adverse party reasonable

notice of his intention to offer the

statement and the particulars of the

statement.

Florida -— Evidence Code

§ 90.803. Hearsay exceptions;

availability of declarant immaterial

The provision of § 90.802 to the

contrary notwithstanding, the following

are not inadmissible as evidence, even

though the declarant is available as a

witness:

(23) Hearsay exception; statement of

child victim of sexual abuse or sexual

offense against a child.-

(a) Unless the source of information

or the method or circumstances by which

the statement is reported indicates a

lack of trustworthiness, an out-of-court

statement made by a child victim with a

physical, mental, emotional, or

developmental age of 1l Or less

describing any act of child abuse,

sexual abuse, or any other offense

involving an unlawful sexual act,

contact, intrusion, or penetration

performed in the presence of, with by,

or on the declarant child, not otherwise

admissible, is admissible, is admissible

in evidence in any civil or criminal

proceeding if:

Ae The court finds in a hearing

conducted outside the presence of the

jury that the time, content, and

circumstances of the statement provide

sufficient safeguards of reliability.

In making its determination, the court

may consider the mental and physical age

and maturity of the child, the nature

and duration of the abuse or offense,

the relationship of the child to the

offender, the reliability of the

assertion, the reliability of the child

victim, and any other factor deemed

appropriate; and

2. The child either:

a. Testifies; or

b. Is unavailable as a witness,

provided that there is is other

corroborative evidence of the abuse or

offense. Unavailability shall include a

finding by the court that the child's

participation in the trial or proceeding

would result in a substantial likelihood

of severe emotional or mental harm, in

addition to findings pursuant to §

90.804(1).

(b) In a criminal action, the

defendant shall be notified no later

than 10 days before trial that a

Statement which qualifies as a hearsay

exception pursuant to this subsection

will be offered as evidence at trial.

The notice shall include a_ée written

Statement of the content of the child's

statement, the time at which the

Statement was made, the circumstances

surrounding the statement which indicate

its reliability, and such other

particulars as necessary to provide full

disclosure of the statement.

findings of fact, on the record, as to

the basis for its ruling under this

subsection.

Added by laws 1985, c 85-53 § 4, eff.

July 1985. Amended by Laws 1987, c.

87-224, § ll.

Georgia - Evidence Code

§ 24-3-16 Testimony as to. child's

description of sexual contact Or

physical abuse.

A statement made by a child under

the age of 14 years describing any act

of sexual contact or physical abuse

performed with or on the child by

another is admissible in evidence by the

testimony of the person or persons to

whom made if the child is available to

testify in the proceedings and the court

finds that the circumstances of the

statement provide sufficient indicia of

reliability. (Code 1981, § 24-3-16,

enacted by Ga. L. 1986. p. 668. § 1.)

Idaho - Rules of Evidence

§ 19-3024. Statements by child

Statements made by a child under the

age of ten (10) years describing any act

of sexual abuse, physical abuse, or

other criminal conduct committed with or

upon the child, although not otherwise

admissible by statute or court rule, are

admissible in evidence after a proper

foundation has been laid in accordance

with the Idaho rules of evidence in any

proceedings under the child protective

act, Chapter 16, title 16, Idaho Code,

or in any criminal proceedings in the

courts of the state of Idaho if:

he The court finds, in a hearing

conducted outside the presence of the

jury that the time, content, and

circumstances of the statements provide

sufficient indicia of reliability; and

2. The child either:

(a) Testifies at the proceedings; or

(b) Is unavailable as a witness. A

child is unavailable as a witness when

the child is unable to be present or to

testify at the hearing because of death

or then existing physical or mental

illness or infirmity. Provided, that

when the child is unavailable as a

witness, such statements may be admitted

only if there is corroborative evidence

of the act.

Statements may not be admitted

unless the proponent of the statements

notifies the adverse party of his

intention to offer the statements and

the particulars of the statements

sufficiently in advance of the

proceedings to provide the adverse party

with a fair opportunity to prepare to

meet the statements.

Rule 803, Idaho Rules of # Evidence

provides:

Rule 803. Hearsay exceptions;

availability of declarant immaterial. -

The following are not excluded by the

hearsay rule, even though the declarant

is available as a witness.

(24) Other exceptions. A statement

not specifically covered by any of the

foregoing exceptions but having

equivalent circumstantial guarantees of

trustworthiness, if the court determines

that (A) the statement is offered as

evidence of a material fact; (B) the

Statement is more probative on the point

for which it is offered than any other

evidence which the proponent can procure

through reasonable efforts; and (C) the

general purpose of these rules and the

interests of justice will best be served

by admission of the statement into

evidence. A statement may not _ be

admitted under this exception unless the

proponent of it makes known to the

adverse party sufficiently in advance of

the trial or hearing to provide the

adverse party with a fair opportunity to

prepare to meet it, the proponent's

intention to offer the statement and the

particulars of it, including the name

and address of the declarant.

Illinois - Criminal Law and Procedure

§ 115-10 Sexual acts on child under 13 -

Hearsay exception § 115-10. (a) In a

prosecution for a sexual act perpetrated

upon a child under the age of 13,

including but not limited to

=~ =

prosecutions for violations of sections

12-13 through 12-16 of the Criminal Code

of 1961, the following shall be admitted

as an exception to the hearsay rule:

(1) testimony by such child of an

out of court statement made by such

child that he or she complained of such

act to another; and

(2) testifies of an out-of-court

statement made by such child describing

any complaint of such act or matter or

detail pertaining to any act which is an

element of an offense which is’ the

subject of a prosecution for a sexual

act perpetrated upon a child.

(b)Such testimony shall only _ be

admitted if:

(1) The court finds in a hearing

conducted outside the presence of the

jury that the time, content, and

circumstances of the statement provide

sufficient safeguards of reliability; and

(2) The child either:

(A) Testifies at the proceeding; or

(B) Is unavailable as a witness and

there is corroborative evidence of the

act which is the subject of the

statement.

pursuant to this Section, the court

shall instruct the jury that it is for

the jury to determine the weight and

credibility to be given the statement

and that, in making the determination,

it shall consider the age and maturity

of the child, the nature of the

statement, the circumstances under which

the statement was made, and any other

relevant factor.

(d) The proponent of the statement

shall give the adverse party reasonable

notice of his intention to offer the

statement and the particulars of the

- Jj] e«-

statement.

Indiana - Rules of Procedure

§ 35-37-4-6 Application of section;

admissibility of statement or videotape

made by children; notice to defendant of

hearing; corroborative evidence:

prosecuting attorney's duties

Sec. 6. (a) This section applies to

criminal actions for the following:

(1) Child molesting (IC 35-42-4-3).

(2) Battery upon a child (IC

35-42-2-1(2)(B)).

(3) Kidnapping (IC 35-42-3-2)

(4) Confinement (IC 35-42-3-3).

(5) Rape (IC 35-42-4-1).

(6) Criminal deviate conduct (IC

35-42-4-2).

(b) A statement or videotape that:

(1) is made by a child who was under

ten (10) years of age at the time of the

statement or videotape;

(2) concerns an act that is material

element of an offense listed in

subsection (a) that was allegedly

committed against the child; and

(3) is not otherwise admissible in

evidence under statute or court rule;

is admissible in evidence in a criminal

action for an offense listed in

subsection (a) if the requirements of

subsection (c) are met.

described in subsection (b) is

admissible in evidence in a criminal

action listed in subsection (a) if,

after notice to the defendant of a

hearing and of his right to be present:

(1) the court finds, in a hearing:

(A) conducted outside the

presence of the jury; and

(B) attended by the child;

that the time, content, and

- 12 -

circumstances of the statement or

videotape provide sufficient indications

of reliability; and

(2) the child:

(A) testifies at the trial; or

(B) is found by the court to be

unavailable as a witness because:

(i) a psychiatrist has

certified that the child's participation

int he trial would be a= traumatic

experience for the child;

(ii) a physician has certified

that the child cannot participate in the

trial for medical reasons; or

(iii) the court has determined

that the child is incapable of

understanding the nature and obligation

of an oath.

(ad) If a child is unavailable to

testify at the trial for a reason listed

in subsection (c)(2)(B), a statement or

videotape may be admitted in evidence

under this section only if there is

corroborative evidence of the act that

was allegedly committed against’ the

child.

(e) A statement or videctape may not

be admitted in evidence under this

section unless the prosecuting attorney

informs the defendant and the

defendant's attorney of:

(1) his intention to introduce the

statement or videotape in evidence; and

(2) the content of the statement or

videotape;

within a time that will give the

defendant a fair opportunity to prepare

a response to the statement or videotape

before the trial.

Kansas - Rules of Evidence

§ 60-460. Hearsay evidence excluded,

exceptions. Evidence of a statement

> =

which is made other than by a witness

while testifying at the hearing offered

to prove the truth of the matter stated

is hearsay evidence and inadmissible

except:

(dd) In a criminal proceeding or in

a proceeding to determine if a child is

a deprived child under the Kansas

juvenile code or a child in need of care

under the Kansas code for care of

children, a statement made by a child,

to prove the crime or that the child is

a deprived child or a child in need of

care, if:

(1) The child is alleged to be a

victim of the crime, a deprived child or

a child in need of care; and

(2) the trial judge finds, after a

hearing on the matter, that the child is

disqualified or unavailable as a

witness, the statement is apparently

reliable and the child was not induced

to make the statement falsely by use of

threats or promises.

If a statement is admitted pursuant

to this subsection in a trial to a jury,

the trial judge shall instruct the jury

that it is for the jury to determine the

weight and credit to be given the

statement and_ that, in making’ the

determination, it shall consider the age

and maturity of the child, the nature of

the statement, the circumstances under

which the statement was made, any

possible threats or promises that might

have been made to the child to obtain

the statement and any other relevant

factor.

Kentucky - Revised Statutes

§ 421.355 Admissibility of victim's

out-of-court statements

(1) Notwithstanding any other

—"

provision of law or rule of evidence, a

child victim's out-of-court statements

regarding physical or sexual abuse, or

neglect of the child are admissible in

any criminal or civil proceeding,

including a proceeding to determine the

dependency of the child, if, prior to

admitting such a statement, the court

determines that:

(a) The general purpose of the

evidence is such that the interest of

justice will best be served by admission

of the statement into evidence; and

(b) The statements are determined by

the court to be reliable based upon the

court's consideration of: the age and

maturity of the child, the nature and

duration of the abuse, the emotional or

psychological effects of said abuse or

neglect upon the child, the relationship

of the child to the offender, the

reliability of the child witness, and

the circumstances surrounding the

statement.

Maine - Title 15. Revised Statutes

Annotated

§ 1205. Certain out-of-court statements

made by minors describing sexual contact

A hearsay statement made by a person

under the age of 16 years, describing

any incident involving a sexual act or

sexual contact performed with or on the

minor by another, shall not be excluded

as evidence in criminal proceedings in

courts of this State if:

1. Mental or physical well-being of

a person. On motion of the attorney for

the State and at an in camera hearing,

the court finds that the mental or

physical well-being of that person will

more likely than not be harmed if that

person were to testify in open court; and

—

2. Examination and cross-examina-

tion. Pursuant to order of court made

on such a motion, the statement is made

under oath, subject to all of the rights

of confrontation secured to an accused

by the Constitution of Maine or the

United States Constitution and the

statement has been recorded by any means

approved by the court, and is made in

the presence of a judge or justice.

Maryland - Annotated Code of Maryland

§ 9-103.1. Out of court statements of

child abuse victims.

(a) "Statement" defined. - In this

section “statement” means:

(1) An oral or written assertion; or

(2) Nonverbal conduct, if it is

intended as an _ assertion, including

sounds, gestures, demonstrations,

drawings, or similar actions.

(b) Admissibility - In general. -

(1) Subject to the provisions of

paragraphs (2) and (3) of this

subsection, if a court finds that the

requirements of subsection (c) of this

section are satisfied, a court may admit

into evidence in a criminal proceeding

an out of court statement, to prove the

truth of the matter asserted int he

statement, made by a child victim under

the age of 12 years, who is the alleged

victim in the case before the court,

concerning an alleged offense against

the child of child abuse, as defined

under Article 27, § 35A of the Code.

(2)(i) An out of court statement may

be admissible under this section only if

the statement was made to and is offered

by:

Re A licensed physician, as

defined under § 14-101 of the Health

Occupations Article;

2. <A licensed psychologist, as

o D6 «a

defined under § 16-101 of the Health

Occupations Article;

3. A licensed social worker,

as defined under § 18-101 of the Health

Occupations Article; or

4. A teacher; and

(ii) The individual described under

item (i) of this paragraph was acting in

the course of the individual's

profession when the statement was made.

(3) An out of court statement may be

admissible under this section only if

the statement possesses particularized

guarantees of trustworthiness.

(1) An out of court statement by a child

may come into evidence to prove the

truth of the matter asserted in the

statement if the child is subject to

cross-examination about the out of court

statement and testifies:

(i) At the criminal proceeding; or

(ii) By closed circuit television

(2) An out of court statement by a

child may come into evidence to prove

the truth of the matter asserted in the

statement if:

(i) The child is unavailable to

testify at the criminal proceeding due

to the child's:

1. Death;

Be Absence from the

jurisdiction, for good cause shown, and

the State has been unable to procure the

child's presence by subpoena or other

reasonable means;

3. Serious physical

disability; or

4. Inability to communicate

about the alleged offense due to serious

emotional distress;

(ii) The child‘s statement is not

admissible under any other hearsay

2 /S9 «

exception; and

(iii) There is 4 corroborative

evidence.

(3) In order to provide the

defendant with an opportunity to prepare

a response to the statement, the

prosecutor shall give to the defendant

and the defendant's attorney, at least

20 days before the criminal proceeding

in which the statement is to be offered

into evidence, notice of:

(i) The prosecution's intention to

introduce the statement; and

(ii) The content of the statement.

(4)(i) The defendant shall have the

right to take the deposition of a

witness who will testify under this

section;

(ii) Unless the State and the

defendant agree, or the court orders

otherwise, the defendant shall file a

notice of deposition at least 5 days

before the date of the deposition; and

(iii) Except where inconsistent with

this paragraph, the provisions of

Maryland Rule 4-261 shall apply to a

deposition taken under this paragraph.

(d) Particularized guarantees of

trustworthiness. - In order to determine

if a child's statement possesses

particularized guarantees of

trusthworthiness under this section, the

court shall consider, but is not limited

to, the following factors:

(1) The child's personal knowledge

of the event;

(2) The certainty that the statement

was made,

(3) Any apparent motive to fabricate

or exhibit partiality by the child,

including interest, bias, corruption, or

coercion;

(4) Whether the statement was

» 0.

spontaneous or directly responsive to

questions;

(5) The timing of the statement;

(6) Whether the child's young age

makes it unlikely that the child

fabricated the statement that represents

a graphic, detailed account beyond the

child's knowledge and experience and the

appropriateness of the terminology to

the child's age; |

(7) The nature and duration of the

abuse;

(8) The inner consistency and

coherence of the statement;

(9) Whether the child was suffering

pain or distress when making the

statement ;

(10) Whether extrinsic evidence

exists to show the defendant's

opportunity to commit the act complained

of in the child's statement;

(11) Whether the statement is

suggestive due to the use of leading

questions; and

(12) The credibility of the person

testifying about the statement.

(e) Role of court. - The court, in

determining whether a statement is

admissible under this section, in a

hearing outside the presence of a jury,

shall:

(1) Make a finding on the record as

to the specific guarantees of

trustworthiness that are present in the

statement; and

(2) Determine the admissibility of

the statement.

(f) Construction of section - This

section may not be construed to limit

the admissibility of a statement under

any other applicable hearsay exception

or rule of evidence. (1988, chs. 548,

549.)

» £6 «

Minnesota — Chapter 595. Witnesses

§ 595.02

Subd. 3. Certain out-of-court statements

admissible. An out-of-court statement

made by a child under the age of ten

years or a person who is-~ mentally

impaired as defined in section 609.341,

subdivision 6, alleging, explaining,

denying, or describing any act of sexual

contact or penetration performed with or

on the child or any act of physical

abuse of the child or the person who is

mentally impaired by another, not

otherwise admissible by statute or rule

of evidence, is admissible as

substantive evidence if:

(a) the court or person authorized

to receive evidence finds, in a hearing

conducted outside of the presence of the

jury, that the time, content, and

circumstances of the statement and the

reliability of the person to whom the

statement is made provide sufficient

indicia of reliability; and

(b) the child or person mentally

impaired as defined in section 609.341,

subdivision 6, either:

(i) testifies at the proceedings; or

(ii) is unavailable as a witness and

there is corroborative evidence of the

act; and

notifies the adverse party of the

proponent's intention to offer the

statement and the particulars of the

statement sufficiently in advance of the

proceeding at which the proponent

intends to offer the statement into

evidence to provide the adverse party

with a fair opportunity to prepare to

meet the statement.

For purposes of this subdivision, an

out-of-court statement includes video,

audio, or other recorded statements. An

unavailable witness includes an

incompentent witness.

Mississippi - Mississippi Code Volume 4

§ 13-401. Applicability of special

evidentiary provisions.

The rules of evidence prescribed in

Sections 13-1-401 through 13-1-415 shall

be applicable in any youth court

proceeding and in any criminal

prosecution under the following sections

of the Mississippi Code of 1972:

(a) Section 97-5-21, Mississippi

Code of 1972, relating to seduction of a

child under age eighteen (18);

(b) Section 97-5-23, Mississippi

Code of 1972, relating to the touching

of a child for lustful purposes;

Code of 1972, relating to the

exploitation of children;

(d) Section 97-5-39, Mississippi

Code of 1972, relating to contributing

to the neglect or delinquency of a child

and felonious battery of a child;

(e) Section 97-5-41 Mississippi Code

of 1972, relating to the carnal

knowledge of a stepchild, adopted child

or child of a cohabitating partner;

(f£) Section 97-3-95, Mississippi

Code of 1972, relating to sexual

battery; or

(g) Section 97-29-59, Mississippi

Code of 1972, relating to unnatural

intercourse.

SOURCES: Laws, 1986, ch 345 § 1l, eff

from and after July 1, 1986.

§ 13-1-403. Admissibility of child's

out-of-court statements.

(1) An out-of-court statement made

by a child under the age of twelve (12)

—

describing any act of child abuse,

sexual abuse or any other offense

involving an unlawful sexual act,

contact, intrusion or penetration

performed in the presence of, with, by

or on the declarant child, not otherwise

admissible, is admissible in evidence to

prove the contents thereof, if:

(a) Such statement is made for the

purpose of receiving assistance or

advice in order to prevent or mitigate

the recurrence of the offenses, or in

order to obtain advice about the

psychological, social Or familial

consequences associated with the

offenses; and

(b) Such statement is made to a

person on whom the child should

reasonably be able to rely for

assistance, counseling or advice; and

(i) Is available to testify; or

(ii) Is unavailable as a witness,

provided that there is other

corroborative evidence of the abuse or

offense. A finding of unavailablility,

except in those situations specified by

Rule 804 of the Mississippi Rules of

Evidence shall require a finding by the

court, based on the specific behavioral

indicators described in § 13-1-41ll, that

the child's participation in the trial

would result in a substantial likelihood

of traumatic emotional Or mental

distress; and

(d) The court finds in a hearing

conducted outside the presence of the

jury that the time, content and

circumstances of the statement provide

sufficient guarantees of

trustworthiness. In determining the

trustworthiness of the statement, the

court may consider the ace and maturity

» 22 «

of the child, the nature and duration of

the abuse or offense alleged, factors

which may detract from the declarant's

credibility, information provided about

the child's reliability based on the

specific behavioral indicators described

in § 13-1-411, or any other factor

deemed appropriate.

(2) The defendant shall be notified

no later than ten (10) days before trial

that an out-of-court statement as

described in this section shall be

offered in evidence at trial. The

notice shall include a written statement

of the content of the child's statement,

the time the statement was made, the

circumstances surrounding the statement

which indicate its reliability and such

other particulars As necessary to

provide full disclosure of the statement.

(3) The court shall make specific

findings of fact, on the record, as to

the basis for its ruling under this

section.

Mississippi - Proposed Rule of Evidence

Rule 803(25)

(25) Tender Years Exception. ca

statement made by a child of tender

years describing any act of sexual

contact performed with or on the child

by another is admissible in evidence if:

(a) the court finds, in a hearing

conducted outside the presence of the

jury, that the time, content, and

circumstances of the statement provide

sufficient indicia of reliability; and

(b) the child either (1) testifies at

the proceedings; or (2) is unavailable

as a witness: provided, that when the

child is unavailable as a witness, such

statement may be admitted only if there

is corroborative evidence of the act.

—

Comment

Some factors that the court should

examine to determine if there is

sufficient indicia of reliability are

(1) whether there is an apparent motive

on declarant's part to lie; (2) the

general character of the declarant; (3)

whether more than one person heard the

statements, (4) whether the statements

were made spontaneously; (5) the timing

of the declarations; (6) the

relationship between the declarant and

the witness; (7) the possibility of the

declarant's faulty recollection is

remote; (8) certainty that the

statements were made ; (9) the

credibility of the person testifying

about the statements; (10) the age or

maturity of the declarant; (11) whether

suggestive techniques were used in

eliciting the statement ; and (12)

whether the declarant's age, knowledge,

and experience make it unlikely that the

declarant fabricated. A finding that

there is a sufficient indicia of

reliability should be made on the record.

Mississippi's pre-rule tender years

exception did not define "tender

years”. See Williams v. State, 427

So.2d 100 (Miss. 1983). Many

jurisdictions limit their analogous

exceptions to declarants under the age

of fourteen years. However, the

exception should not be necessarily

limited to a specific chronological

age. In appropriate cases, the

exception might apply when the declarant

is chronologically older than fourteen

years, but the declarant has a mental

age less than fourteen years.

Corroboration need not be eyewitness

testimony or physical evidence, but may

— =

include confessions, doctors’ reports,

inappropriate conduct by the child, and

other appropriate expert testimony.

Missouri - Revised Statutes of the

State of Missouri

Chapter 491 § 491.075 R.S.Mo. (1988)

491.075 Statement of child under twelve

admissible, when

l. A statement made by ae child

under the age of twelve relating to an

offense under Chapter 565, 566 or 568,

R.S.Mo., performed with or on a child by

another, not otherwise admissible by a

Statute or court rule is admissible in

evidence in criminal proceedings in the

courts of this state as substantive

evidence to prove the truth of the

matter asserted if:

(1) The court finds, in a hearing

conducted outside the presence of the

jury that the time, content and

Circumstances of the statement provide

sufficient indicia of reliability; and

(2) The child either:

(a) Testifies at the proceedings; or

(b) Is unavailable as a witness.

2. Notwithstanding subsection 1 of

this section or any provision of law or

rule of evidence requiring corroboration

of statements, admissions or confessions

of the defendant, and notwithstanding

any prohibition of hearsay evidence, a

statement by a child when under the age

of twelve who is alleged to be a victim

of an offense under chapter 565, 566 or

568, R.S.Mo., is sufficient

corroboration of a statement, admission

or confession regardless of whether or

not the child is available to testify

regarding the offense.

3. A statement may not be admitted

under this section unless the

—-—

prosecuting attorney makes known to the

accused or his counsel his intention to

offer the statement and the particulars

of the statement sufficiently in advance

of the proceedings to provide’ the

accused or his counsel with a fair

opportunity to prepare to meet’ the

statement.

4. Nothing in this section shall be

construed to limit the admissibility of

statements, admissions or confessions

otherwise admissible by law.

History. L. 1985 H.B. 366, et. al.

Effective 7-19-85

Nevada Rev. Stat. Ann. Chapter 51

S $1.3868. Admissibility; notice of

unavailability of child to testify.

B. In addition to any other

provision for admissibility made by

statute or rule of court, a statement

made by a child under the age of 10

years describing any act of sexual

conduct performed with or on the child

is admissible in a criminal proceeding

regarding that sexual conduct if the:

(a)

Court finds, in a hearing out of the

presence of the jury, that the time,

content and circumstances of the

statement provide sufficient

circumstantial guarantees of

trustworthiness; and

(b)

Child either testifies at the

proceeding or is umavailable or

unable to testify.

3. If the child is unavailable or

unable to testify, written notice must

be given to the defendant at least 10

days before the trial of the

» 26 «

prosecution's intention to offer the

statement in evidence. (1985, p. 2132.)

New Jersey Senate Joint Resolution No.

Rule 63. Hearsay evidence excluded;

exceptions.

Evidence of a statement offered to

prove the truth of the matter stated

which is made other than by a witness

while testifying at the hearing is

hearsay evidence and is inadmissible

except as provided in Rules 63 (1)

through [63 (32)) 63 (33).

A new rule designated as Rule 63 is

adopted to read as follows:

Rule 63 (33). Statements by a child

relating to a sexual offense.

A statement a child under the age of

12 relating to a sexual offense under

the Code of Criminal Justice committed

on, with, or against that child is

admissible in a criminal proceeding

brought against a defendant for the

commission of such offense if (a) the

proponent of the statement makes known

to the adverse party his intention to

offer the statement and the particulars

of the statement at such time as to

provide him with a fair opportunity to

prepare to meet it; (b) the court finds,

in a hearing conducted pursuant to Rule

8 (1), that on the basis of the time,

content, and circumstances of the

statement there is a probability that

the statement is trustworthy; and (c)

either Ii) the child testifies at the

proceeding, or (ii) the child is

unavailable as a witness and there is

offered admissible evidence

corroborating the act of sexual abuse;

provided that no child whose statement

is to be offered in evidence pursuant to

e 29 «

this rule shall be disqualified to be a

witness in such proceeding by virtue or

the requirements of paragraph (b) of

Rule 17.

North Dakota Rule of Evidence

Rule 803(24)

(24) Child's Statement About Sexual

Abuse. An out-of-court statement by a

child under the age of 12 years about

sexual abuse of that child or witnessed

by that child is admissible as evidence

(when not otherwise admissible under

another hearsay exception) if:

(a) The trial court’ finds,

after hearing upon notice in advance

of the trial of the sexual abuse

issue, that the time, content, and

circumstances of the statement

provide sufficient guarantees of

trustworthiness; and

(b) The child either:

(i) Testifies at the

proceedings; or

(ii) Is unavailable as 4

witness and there is

corroborative evidence of the

act which is the subject of the

statement

Oklahoma - Evidence Code

§ 2803.1. Statements of children 12

years of age or younger describing acts

of sexual contact--Admissibility in

criminal and juvenile proceedings.

A. A statement made by a child

twelve (12) years of age or younger

which describes any act of sexual

contact performed with or on the child

by another, is admissible in criminal

and juvenile proceedings in the courts

in this state if:

» SS «

1. The court finds, in a hearing

conducted outside the presence of the

jury, that the time, content and

circumstances of the statement provide

sufficient indicia of reliability; and

2. The child either:

a. testifies at the proceedings, or

b. is unavailable as defined in

Title 12 as a witness.

When the child is unavailable as

defined in Title 12 as a witness, such

Statement may be admitted only if there

is corroborative evidence of the fact.

B. <A statement may not be admitted

under this section unless the proponent

of the statement makes known to the

adverse party his intention to offer the

statement and the particulars of the

Statement at lest ten (10) days in

advance of the proceedings to provide

the adverse party with an opportunity to

prepare to answer the statement.

Oregon Rev. Stat.

§ 40.460 (1989)

40.460 Rule 803. Hearsay exception;

availability of declarant immaterial].

The following are not excluded by ORS

40.455, even though the declarant is

available as a witness:

(18a) (a) A complaint of sexual

misconduct made by the prosecuting

witness after the commission of the

alleged offense. Except as provided in

paragraph (b) of this subsection, such

evidence must be confined to the fact

that the complaint was made.

(b) A statement made by a child

victim who is under 10 years of age,

which statement describes an act of

sexual conduct performed with or on the

child by another, is not excluded by ORS

40.455 if the statement is offered as

- 29 «-

evidence in the criminal trial or

juvenile court proceeding and if the

child either testifies at the proceeding

and is subject to cross-examination or

is unavailable as a witness and if the

proponent of admissibility establishes

to the satisfaction of the court outside

the presence of the jury, if any, that

the time, content and circumstances of

the statement provide substantial

indicia of reliability. However, when

the child is unavailable as a witness,

the statement may be admitted in

evidence only if there is corroborative

evidence of the act of sexual conduct

and of the defendant's participation in

the conduct. No statement may be

admitted under this paragraph except

upon motion of the state and unless the

proponent of the statement makes known

to the adverse party the proponent's

intention to offer the statement and the

particulars of the statement no later

than 15 days before trial, except for

good cause shown. For purposes of this

paragraph, in addition to those

situations described in ORS 40.465 (1),

the child shall be considered

“unavailable” if the child has a

substantial lack of memory of the

subject matter of the statement, is

presently incompetent to testify, is

unable to communicate about the offense

because of fear or other similar reason

or is substantially likely, as

established by expert testimony, to

suffer lasting severe emotional trauma

from testifying. Unless otherwise

agreed by the parties, the court shall

examine the child in chambers and on the

record or outside the presence of the

jury and on the record. The examination

shall be conducted in the presence of

» 2 «

the attorneys and the child's parent,

legal guardian or other suitable adult

as designated by the court. The purpose

of the examination shall be to aid the

court in making its findings regarding

the child's availability as a witness

and the reliability of the child's

statement. In determining whether a

statement possesses substantial indicia

of reliability under this paragraph, the

court may consider, but is not limited

to, the following factors:

(A) The child's personal knowledge

of the event;

(B) The age and maturity of the

child;

was made, including the credibility of

the person testifying about the

Statement and any motive the person may

have to falsify or distort the statement;

(D) Any apparent motive the child

may have to falsify or distort the

event, including the statement;

(E) The timing of the child's

statement;

(F) Whether more than one person

heard the statement;

é (G) Whether the child was suffering

pain or distress when making the

statement;

(H) The nature and duration of any

alleged abuse;

(I) Whether the child's young age

makes it unlikely that the child

fabricated a statement that represents a

graphic, detailed account beyond the

child's knowledge and experience;

(J) Whether the statement has

internal consistency or coherence and

uses terminology appropriate to the

child's age;

(n) Whether the statement is

» Dh «

spontaneous or directly responsive to

questions;

(L) Whether the statement was

elicited by leading questions; and

(M) Whether extrinsic evidence

exists to show the accused's opportunity

to commit the act to which the child's

statement refers.

Pennsylvania - Title 42. Pennsylvania

Consolidated Statutes

§ 5985.1. Admissibility of Certain

Statements.

(A) General Rule.--An out-of-court

statement made by a child victim or

witness, who at the time the statement

was made was 12 years of age or younger,

describing indecent contact, sexual

intercourse or deviate sexual

intercourse performed with or on the

child by another, not otherwise

admissible by statute or rule of

evidence, is admissible in evidence in

any criminal proceeding if:

(1) The court finds, in an

in camera hearing, that

the evidence is relevant

and that the time, content

and circumstances of the

statement provide

sufficient indicia of

reliability.

(2) The child either:

(I) Testifies at the

proceeding; or

(II) Is unavailable as a

witness and there is

corroborative evidence of

the act.

» 232 «

(B) Notice Required -- A statement

otherwise admissible under subsection

(A) shall not be received into evidence

unless the proponent of the statement

notifies the adverse party of the

proponent's intention to offer the

statement and the particulars of the

statement sufficiently in advance of the

proceeding at which the proponent

intends to offer the statement into

evidence to provide the adverse party

with a fair opportunity to prepare to

meet the statement.

South Dakota - Rule of Evidence

§ 19-16-38. Statement of sex crime

victim under age ten. A statement made

by a child under the age of ten

describing any act of sexual contact or

rape performed with or on the child by

the defendant, not otherwise admissible

by statute or court rule, is admissible

in evidence in criminal proceedings

against the defendant in the courts of

this state if:

(1) The court finds, in a

hearing conducted outside the

presence of the jury, that

the time, content and

circumstances of the

statement provide sufficient

indicia of reliability; and

(2) The child either:

(a) Testifies at the

proceedings; or

(b) Is available as a

witness.

However, if the child is unavailable

as a witness, such statement may be

admitted only if there is corroborative

evidence of the act.

No statement may be admitted under

this section unless the proponent of the

statement makes known his intention to

offer the statement and the particulars

of it, including the name and address of

the declarant to the adverse party

sufficiently in advance of the trial or

hearing to provide the adverse party

with a fair opportunity to prepare to

meet the statement.

Texas - Code of Criminal Procedure

Art. 38.072. Hearsay statement of child

abuse victim. Sec. i. This article

applies to a proceeding in the

prosecution of an offense under any of

the following provisions of the Penal

Code, if committed against a child 12

years of age or younger.

(1) Chapter 21 (Sexual Offenses) or

22 (Assaultive Offenses);

(2) Section 25.02 (Incest);

(3) Section 25.06 (Solicitation of a

Child, added by Chapter 413, Acts of the

65th Legislature, Regular Session,

1977); or

(4) Section 43.25 (Sexual

Performance by a Child).

Section 2. (a) This article applies

only to statements that describe the

alleged offense that:

(1) were made by the child against

whom the offense was allegedly

committed; and

(2) were made to the first person,

18 years of age or older, other than the

defendant, to whom the child made a

statement about the offense.

(b) A statement that meets’ the

requirements of Subsection (a) of this

a M4 «

article is not inadmissible because of

the hearsay rule if:

(1) on or before the 14th day before

the date the proceeding begins, the

party intending to offer the statement:

(A) notifies the adverse party of

its intention to do so;

(B) provides the adverse party with

the name of the witness through whom it

intends to offer the statement; and

a written summary of the statement;

(2) the trial court finds, in a

hearing conducted outside the presence

of the jury, that the statement is

reliable based on the time, content, and

circumstances of the statement; and

(3) the child testifies or is

available to testify at the proceeding

in court or in any other manner provided

by law.

Added by Acts 1985, 69th Leg., ch 590 §

1, eff. Sept. 1, 1985.

Utah -—- Criminal Code

§ 76-5-409. Corroboration of admission

by child's statement. (1)

Notwithstanding any provision of law

requiring corroboration of admissions or

confessions, and not withstanding any

prohibition of hearsay evidence, a

child's statement indicating in any

manner the occurrence of the sexual

offense involving the child is

sufficient corroboration of the

admission or the confession regardless

of whether or not the child is available

to testify regarding the offense.

(2) A child, for purposes of Section

(1), is a person under the age of 14.

§ 76-5-410. Child victim of sexual abuse

as competent witness. A child victim of

—

sexual abuse under the age of ten is a

competent witness and shall be allowed

to testify without prior qualification

in any judicial proceeding. The trier

of fact shall determine the weight and

credibility of the testimony.

§ 76-5-411. Admissibility of out of

court statement of child victim of

sexual abuse [Effective until July l,

1990). (1) Notwithstanding any rule of

evidence, a child victim's out of court

statement regarding sexual abuse of that

child is admissible as evidence though

it does not qualify under an existing

hearsay exception, if:

(a) the child ~is available to

testify in court or as_ provided by

Subsection 77-35-15.5(2) or (3)

(b) in the event the child is not

available to testify in court or as

provided by Subsection 77-35-15.5(2) or

(3), there is other corroborative

evidence of the abuse; or

admission under Subsection 77-35-15.5(1).

(2) Prior to admission of any

statement into evidence under this

section, the judge shall determine

whether the interest of justice will

best be served by admission of that

statement. In making this determination

the judge shall consider the age and

maturity of the child, the nature and

duration of the abuse, the relationship

of the child to the offender, and the

reliability of the assertion and of the

child.

(3) A statement admitted under this

section shall be made available to the

adverse party sufficiently in advance of

the trial or proceeding, to provide him

= 2

7 an opportunity to prepare to meet

(4) For purposes of this section, a

child is a person under the age of 14

years.

Admissibility of out-of-court statement

of child victim of sexual abuse

[Effective July 1, 1990]

(1) Notwithstanding any rule of

evidence, a child victim's out-of-court

statement regarding sexual abuse of that

child is admissible as evidence although

it does not qualify under an existing

hearsay exception, if:

(a) _the child is available to

testify in court or under Rule 15.5(2)

or (3), Utah Rules of Criminal Procedure;

(b) if the child is not available to

testify in court or under Rule 15.5(2)

Or (3), Utah Rules of Criminal

Procedure, there is other corroborative

evidence of the abuse; or

(ce) the statement qualifies for

admission under Rule 15.5(1), Utah Rules

of es Procedure.

2 Prior to admission o

statement iniG evidence walt Ea this

section, the judge shall determine

whether the interest of justice will

best be served by admission of that

statement. In making this determination

the judge shall consider the age and

maturity of the child, the nature and

duration of the abuse, the relationship

of the child to the offender, and the

reliability of the assertion of the

child.

(3) A statement admitted under this

section shall be made available to the

adverse party sufficiently in advance of

the trial or proceeding, to provide him

- 37 -

with an opportunity to prepare to meet

(4) For purposes of this section, a

child is a person under the age of 14

years.

Vermont - Rules of Criminal Procedure

Rule 804a Hearsay Exception; Putative

Victim Age Ten or Under

(a) Statements by a person who is a

child ten years of age or under at the

time of trial are not excluded by the

hearsay rule if the court specifically

finds at the time they are offered that:

(1) the statements are offered in a

criminal case in which the child is a

putative victim of sexual assault under

13 V.S.A. § 3252, aggravated sexual

assault under 13 V.S.A. § 3253, lewd or

lascivious conduct with a child under 13

V.S.A. § 2602 or incest under V.S.A. §

205, and the statements concern the

alleged crime; or the statements are

offered in a juvenile proceeding under

chapter 12 of Title 33 involving a

delinquent act alleged to have been

committed against a child ten years of

age or under, if the delinquent act

would be an offense listed herein if

committed by an adult and the statements

concern the alleged delinquent act; or

the child is the subject of a petition

alleging that the child is in need of

care or supervision under chapter 12 of

Title 33, and the statement relates to

the sexual abuse of the child;

(2) the statements were not taken in

preparation for a legal proceeding and,

if a criminal or delinquency proceeding

has been initiated, the statements were

made prior to the defendant's initial

appearance before a judicial officer

- 38 -

under Rule 5 of the Vermont Rules of

Criminal Procedure;

(3) the child is available to

testify either in court or under Rule

807; and

(4) the time, content and

Circumstances of the statements provide

substantial indicia of trustworthiness.

(b) Upon motion of either party, the

court shall require the child to testify

for the state. - Added 1985, No. 82 § 2,

eff. July 1, 1985; amended October 30,

1986, eff. March 1, 1987.

Rule 26 (d) Hearsay Statement of a

Victim who is a Child Ten Years of Age

or Under. When the state in a criminal

action intends to offer hearsay

statements of a victim who is a child

ten years of age or under, made

admissible by Rule 804a of the Vermont

Rules of Evidence the state’ shall

furnish to the defendant a written

statement of the evidence it intends to

offer, including the name of each

witness who will testify to the

statement of the victim, at least 30

days before trial. The court may allow

the notice to be given at a later date,

including during trial, if it determines

either that the evidence is newly

discovered and could not have been

obtained earlier through the exercise of

due diligence or that the issue to which

the evidence results has newly arisen in

the case. Amended Jan. 14, 1985, eff.

March 15, 1985; 1985 No. 82 § 3, eff.

ree 1, 1985; Dec. 8, 1988 eff. March l,

989.

Washington - Washington Criminal Code

§ 9A.44.120 Admissibility of child's

statement-Conditions

- 39 -

A statement made by a child when

under the age of ten describing any act

of sexual contact performed with or on

the child by another, not otherwise

admissible by statute or court rule, is

admissible in evidence in dependency

proceedings under Title 13 RCW and

Criminal proceedings in the courts of

the state of Washington if:

(1) The court finds, in a hearing

conducted outside the presence of the

jury, that the time, content, and

circumstances of the statement provide

sufficient indicia of reliability; and

(2) The child either:

(a) Testifies at the proceedings; or

(b) Is unavailable as a witness:

Provided, That when the child is

unavailable as a witness, such statement

may be admitted only if there is

corroborative evidence of the act.

A statement may not be admitted

under this section unless the proponent

of the statement makes known to the

adverse party his intention to offer the

statement and the particulars of the

statement sufficiently in advance of the

proceedings to provide the adverse party

with a fair opportunity to prepare to

meet the statement. Enacted by Laws

1982, ch. 129, § 2. Amended by Laws

1985, ch. 404 § 1.

Sample Statute, American Bar

Association, National Legal Resource

Center for Child Advocacy and Protection

Part IV. Evidentiary Issues.

4.3 Out-of-Court Statements of Sexual

Abuse

A child victim's out-of-court

statement of sexual abuse should be

admissible into evidence where it does

not qualify under an existing hearsay

o @ «

exception, as long as: (1) the child

testifies; or (2) in the event the child

does not testify, there is other

corroborative evidence of the abuse.

Before admitting such a statement into

evidence, the judge should determine

whether the general purposes of the

evidence rules and interests of justice

will best be served by admission of the

Statement into evidence. In addition,

the court should consider the age and

maturity of the child, the nature and

duration of the abuse, the relationship

of the child to the offender, the

reliability of the assertion, and the

reliability of the child witness in

deciding whether to admit such a

statement.

A statement may only be admitted

under this exception if the proponent of

it makes known to the adverse party

sufficiently in advance of the trial or

hearing to provide the adverse party

with a fair opportunity to prepare to

meet it, his intention to offer the

statement and the particulars of it.

Hearsay Exception for Child

Victim's Out-of-Court Statement

of Abuse

(A) An out-of-court statement made by a

child under [eleven] years of age at

the time of the proceeding

concerning ar act that is a material

element of t..e offense(s) of [sexual

abuse], [physical abuse or battery],

{other specified offenses] that is

not otherwise admissible in evidence

is admissible in any judicial

proceeding if the requirements of

sections B through F are met.

« Go

(B) An out-of-court statement may be

admitted as provided in Section A if:

(1) The child testifies at the

proceeding, or testifies by

means of videotaped deposition

(in accordance with [ }) or

closed-circuit television (in

accordance with [ }), and at

the time of such testimony is

subject to cross- examination

about the out-of-court

statement; or

(2) (a) the child is found by the

court to be unavailable to

testify on any of these grounds:

i) the child's death;

ii) the child's absence from

the jurisdiction;

iii) the child's total failure

of memory;

iv) the child's persistent

refusal to testify despite judicial

requests to do so;

v) the child's physical or

mental disability;

vi) the existence of a

privilege involving the child;

vii) the child's incompetency,

including the child's inability to

communicate about the offense because of

fear or a similar reason; or

viii) substantial likelihood

that the child would suffer severe

emotional trauma from testifying at the

proceeding or by means of a videotaped

deposition or closed-circuit television;

and

(b) the child's out-of-court

statement is shown to possess

particularized guarantees of

trustworthiness.

e 42 «

section B(2) (28) (viii) must be

supported by expert testimony.

(D) The proponent of the statement must

inform the adverse party of the

proponent's intention to offer the

statement and the content of the

statement sufficiently in advance of

the proceeding to provide the

defendant with a fair opportunity to

prepare a response to the statement

before the proceeding at which it is

offered.

(E) In determining whether a statement

possesses particularized guarantees

of trustworthiness under section

B(2), the court may consider, but is

not limited to, the following

factors:

(1) the child's personal knowledge

of the event;

(2) the age and maturity of the

child;

(3) certainty that the statement

was made, including the

credibility of the person

testifying about the statement;

(4) any apparent motive the child

may have to falsify or distort

the event, including bias,

corruption, or coercion;

(5) the timing of the child's

statement ; 7

(6) whether more than one person

heard the statement;

(7) whether the child was suffering

pain or distress when making

the statement;

(8) the nature and duration of an;y

alleged abuse;

(9) whether the child's young age

makes it unlikely that’ the

child fabricated a statement

that represents a graphic,

— 7

detailed account beyond the

child's know ledge and

experience;

(10) whether the statement has a

“ring of verity”, has internal

consistency or coherence, and

uses terminology appropriate to

the child's age;

(11) whether the statement is

spontaneous or directly

responsive to questions; _

(12) whether the statemerit is

suggestive due to improperly

leading questions;

(13) whether extrinsic evidence

exists to show the defendant's

opportunity to commit the act

complained of in the child's

statement.

(F) The court shall support with

findings on the record any rulings

pertaining to the child's

unavailability and the

trustworthiness of the out-of-court

statement.

(Recommendations for Improving'§§ Legal

Intervention in Intrafamily Child Sexual

Abuse Cases. National Legal Resource

Center for Child Advocacy and

Protection, Young Lawyers Division,

American Bar Association. October 1982;

5th Printing June 1987.)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.