“tender years” exception to hearsay
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The Connecticut Legislature is currently considering a bill that would allow a “tender years” exception to hearsay. The bill [S.B. 1245] would add the following section to the General Statutes:
Notwithstanding any other rule of evidence or provision of law, a statement by a child under sixteen years of age relating to an offense committed against that child shall be admissible in a criminal, juvenile or civil proceeding if (1) the court finds, on the basis of the time, content and circumstances of the statement, there is a probability that the statement is trustworthy, (2) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it, and (3) either (A) the child testifies at the proceeding, or (B) the child is unavailable as a witness and there is independent admissible evidence of the alleged act. For purposes of this section, “child” includes a person who is chronologically sixteen years of age or older, but who has a mental or developmental age of less than sixteen years because of mental retardation or developmental disability.
Immediately this proposal should raise red flags. This does not require that the defense have an opportunity to cross-examine the “minor”. Also, what the heck does “there is a probability that the statement is trustworthy” mean?
Further, how do you define “fair opportunity to prepare to meet it”? Does that mean that the statement has to be disclosed in advance? That the full length and breadth of the “minor’s” testimony has to be made available to the defense beforehand? I doubt that’s what the legislature means.
Anyone else have any ideas on this or know of other states that have proposed this?
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someone’s staff attorney went nuts.
Maine currently does not allow a “tender years exception in criminal cases under this type of rule. There is a similar rule in child protective proceedings and this rule goes so far as to allow the judge to exclude child witnesses under subpoena by the defense upon a showing of psychological harm. There is a seperate “tender years” doctrine which allows the introduction of evidence of prior sexual activity or knowledge by young children (10-12 years and younger), despite normal rape shield law protections, to allow the defense to attack a spoken or unspoken inferences of sexual naivete of the alleged victim.
There is a real big Crawford problem with most of these tender years statutes. A great example is laid out in State (of Maryland) v. Snowden which is arguably the most cited case on point. It holds such evidence is per se excludable post-Crawford as it is (1) testimonial & (2) the Accused was not afforded an opportunity for cross at the time the statement was taken.
Yeah, you’re absolutely right. Crawford would prohibit the admission of such statements. What’s troubling, however, is that legislators are still proposing such bills. I’m assuming that whoever conducts their research would have stumbled across Snowden and disregarded it for some reason.
For those interested, I’ll create a new post on it, but in the meantime, here’s the decision:
State v. Snowden [pdf]