# Amicus Curiae Brief — Idaho v. Wright > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0664%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1990 - **Citation:** 497 U.S. 805 ## Text femme Cou US. | \|| FELED sa \ || 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 V. 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 _ = —_" ¢ +: ~ - . . a ~ a 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) a 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, 18 536 So.2d 206 (Fla 1988) U.S. + 109 S.Ct. 3253 (1989).......... 18, 25 (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, 17 751 S.W.2d 48 (Mo. 1988)....... 19 414 U.S. 17 (1973). ccccccccves 15 475 U.S. 387 (1986).....---06-- 6, 17 665 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 20 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) 1l 1l 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 v, Iowa, 487 U.S. , 108 §.Ct. 2798, 2803 (1988). The , Process of deciding these cases “has been gradual, building on past decisions, drawing on new experience, and responding to changing conditions.” Roberts, supra, 448 U.S., at 64. In the case sub judice the Court must consider the relationship between the Confrontation Clause and an excep- tion to the hearsay rule permitting admission of out-of-court statements of child sexual abuse complainants. Build- ing on past decisions, drawing on new experience, and responding to changing conditions, the Court should hold that such a rule withstands a Confrontation Clause challenge. In recent years, the sexual abuse of children has become a serious national problem. See Coy v. Jowa, 487 U.S., at ’ 108 S.Ct., at 2803-2804 (O'Connor, J., concurring). The States have responded resoundingly to this problem. In order to forward their strong interests in enforcing the laws against child sexual abusers and in developing the rules of evidence applicable in criminal proceedings, thirty States have adopted rules of evidence allowing for the admission of the out-of-court statements of these child victims provided they possess the “particularized guarantees of trust- worthiness,” Qhio v. Roberts, 448 U.S., at 66, needed to satisfy the Con- frontation Clause. While the rules vary somewhat they uniformly require findings that the statements have “indicia of reliability” or are trustworthy before they may be admitted. See, e.g., 42 Pa. Cons. Stat. Ann. § 5985.1 (1990 Pa. Legis. Serv. Act 100 (Purdon)). See also Coy v. Iowa, 487 U.S., at , 108 i. oF at 2805 (O'Connor, Bea con- curring) ("if a court makes a case specific finding of necessity, as is required by a number of state statutes. our cases suggest that the Strictures of the Confrontation Clause may give way to the compelling state interest in protecting child witnesses.") These rules have been implemented by legislation, ? evi- lAlaska Code of Criminal Procedure § 12.40.110 (1985); 13 Ariz. Rev. Stat. Ann. § 1416 (Supp. 1987); Col. Rev. Stat. § 13-25-129 (1987); Fla. Stat. § 90.803(23) (Supp. 1988); Ga. Code Ann. § 24-3-16; Idaho Code 19-3024 (1987); Ill. (footnote continued on next page) oe Ma 3 dentiary rules,” or by case law. l(continued) Ann. Stat. ch. 38, para. 115-10 (Smith-Hurd 1988 #=Supp); Ind. Code 35-37-4-6 (1988); Kan Stat. Ann. § 60-460 (dd) (1983); Ky. Rev. Stat. Ann. § 421.355 (1986) (declared unconstitutional on state law grounds Drumm v. Commonwealth, No. 87-8C-848 MR (Ky filed Jan 18, 1990) (1990 Ky. Lexis 3); Me Rev. Stat Ann. tit 15, § 1205 (1988 Supp.); Md. Cts. Jud. Proc. Code Ann. § 9-103.1 (1988 Supp.); Minn Stat. Ann. § 595.02(3) (West 1988); Mo. Rev. Stat. § 491.075 (1988); Nev. Rev. Stat. Ann. § 51.385 (1986, Supp. 1988); Okla. Stat. Ann. tit. 12, § 2803.1 (West Supp. 1987); Or. Rev. Stat. § 40.460 (1989); 42 Pa.Cons.Stat.Ann. § 5985.1 (1990 Pa. Legis. Serv. Act 100 (Purdon)); S.D. Codified Laws Ann. § 19-16-38 (1987); Tex Code Crim.Proc.Ann. art. 38.072 (Vernon 1985); Utah Code Ann. § 76-5-411(1) (1985); Wash. Rev. Code § 9A.44.120 (1988). These rules are set forth at length in the Appendix. 2Ark. R. Evid. 803 (25)(a); Cal. Evid. Code S 1228 (West 1985); 67 (footnote continued on next page) 3courts have allowed out-of-court declarations of child victims under (footnote continued on next page) » Sih« The States have recognized the ofttimes impossible task of bringing 2(continued) Michigan Bar J. 68 (July 1988) (proposed); Miss. R. 803(25) (proposed) ; N.J. Evid. R. 63 (33); N.D.R. 803 (24) (eff. 3/1/90); Vt. R.E. 804(9) (Supp. 1988). These statutes are set forth at length in the Appendix. 3(continued) firmly rooted exceptions to the hearsay rule. The Supreme Court of Idaho recognized the admissibility of such declarations when they are “excited utterances” or part of the res gestae. See State v. Wright, 116 Idaho 382, . 775 =P.2¢d 1224, 1230-1231 (1989) cert. granted sub nom. Idaho v. Wright, U.S. » £4310 8.Ct. 833 (1990) (collecting cases). Courts have also admitted such statements when made for the purposes of medical diagnosis or treatment under state rules Similar to Fed. R. Evid. 803(4). See e.g., State v. Robinson, 153 Ariz 191, 735 P.2d 801 (1987); People v. Galloway, 726 P.2d 249 (Colo. App. 1986); Drumm v. Commonwealth, No. 87-86-848 MR (Ky. filed Jan. 18, 1990) (1990 Ky Lexis 3); State v. Olesen, 443 N.W. 2d 8 (S.D. 1989); State v. Nelson, 138 Wis.2d 418, 406 N.W. 2d 385 (1987); Goldade v. State, 674 P.2d 721 (Wyo 1983), cert, denied, sub nom. Goldade v. Wyoming, 467 U.S. 1253 (1984). Many States now recognize an (footnote continued on next page) —' a a oe ont eens ated sexual abusers of children to book and have responded by adopting rules of evidence that are necessary to success- ful prosecution of these cases while, at the same time, fulfilling the re- quirements of the Confrontation Clause. These rules promote the compelling state interest in the physical and psy- chological well-being of children which this Court has historically stressed. See New York vv. Ferber, 458 U.S. 747 (1982); and w —. Superior Court, 457 U.S. 596 (1982). 3(continued) exception to the hearsay rule patterned after Fed.R.Evid. 803(24), often called the “residual” exception. Child victims hearsay state- ments have been found admissible under such an exception. See e.g. State v. Robinson, 153 Ariz. 191, 735 P.2d 8s0l (1987); Oldsen v. People, 732 P.2d 1132 (Colo. 1986); State v. Deanes, 323 N.C. 508, 374 S.E. 2d 249 (1988), cert, denied sub nom. Deanes Vv. North Carolina, _.. U.S. o' 300 8.Ce. BSa (1989). « SS. « 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 « 5 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. a 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 2 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 State Page RUBERG. ccccccccccsescsescsccccccece 1 ASEBORG. cccccccccccccsecccccesceces 1 ASRORSOS. cc cccccccccscssccsesescese 2 ~ tl, tl rrr rr rrrrrereee re 4 COROT OEOs ccc cccccccsccccscccccccces 5 PEOEEEB cs cece ccccceccccccccccccccecs 7 ee OP TTCTETULITIULITTTTTTe 8 | | PPT TETEELELIELIELELELELEeE 9 BEBOMOEDs cccccccccccccccccccccccces 10 PPT TTETELELIELEET Te 12 PM eee osccccccccccccccecccecccce 13 “cs FT Tre rere rTrTr 14 BEE s ccc cccccccecccecccccccccccces 15 | | rrr rrr ererererer er 16 PERMMBOSH c ccc ccc ccccccccccccccces 20 PEER Socecceccceccosccccceces 20 PROSE cc ccc ccc ccccccccccccccccecs 25 | PPP rrrrrrrrrrrereeeeeee enn 26 TSG BONIS Rs cc cccccccccceccccceece 28 SOG s cocccccccceccescecoeceeeet 28 Deed eeede cess oetbeessécceccencks 29 PTT TTT TTT TTT errr 32 ea. SEER s co ccccencessceeeeseeee 34 BEMoeccceiosccececoeessoeceseoese 35 See secocdeccecces6e00esseseseucet 36 Vas ooccecececesoceceenseeéesebe 39 a I TT TT TT ee 40 (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. (c) The statement was made prior to the 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. (c) The court shall make specific 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. (c) 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 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. (c) & statement or videotape 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.