2003 Montana Legislature

About Bill -- Links

Seal

SENATE BILL NO. 263

INTRODUCED BY GRIMES

 

AN ACT CREATING A CHILD HEARSAY EXCEPTION IN CRIMINAL PROCEEDINGS; ALLOWING THE USE OF CHILD HEARSAY TESTIMONY REGARDING OUT-OF-COURT STATEMENTS MADE BY A CHILD VICTIM IN CRIMINAL PROCEEDINGS INVOLVING SEXUAL OFFENSES AND OTHER CRIMES OF VIOLENCE; AND PROVIDING AN EFFECTIVE DATE AND AN APPLICABILITY DATE.

 

     WHEREAS, the state has an interest in protecting the welfare of children generally; and

     WHEREAS, the state has an interest in protecting the well-being of children who are victims of sexual offenses and other violent crimes; and

     WHEREAS, the state has an interest in giving child witnesses a voice in criminal proceedings; and

     WHEREAS, it is the Legislature's prerogative to enact laws for the protection of children; and

     WHEREAS, the Legislature finds that the admission of child hearsay testimony under a residual exception to the general hearsay rules does not always serve the general purposes of the rules and the interests of justice; and

     WHEREAS, Rule 802 of the Montana Rules of Evidence provides that the Legislature may by statute provide for exceptions to the general rule that hearsay is not admissible; and

     WHEREAS, the Legislature acknowledges the necessity that child hearsay testimony must be examined closely for reliability.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

 

     Section 1.  Child hearsay exception -- criminal proceedings. (1) Otherwise inadmissible hearsay may be admissible in evidence in a criminal proceeding, as provided in subsection (2), if:

     (a) the declarant of the out-of-court statement is a child who is:

     (i) an alleged victim of a sexual offense or other crime of violence, including partner or family member assault, that is the subject of the criminal proceeding; or

     (ii) a witness to an alleged sexual offense or other crime of violence, including partner or family member assault, that is the subject of the criminal proceeding;

     (b) the court finds that the time, content, and circumstances of the statement provide circumstantial guarantees of trustworthiness;

     (c) the child is unavailable as a witness;

     (d) the child hearsay testimony is offered as evidence of a material fact and is more probative on the point for which it is offered than any other evidence available through reasonable efforts; and

     (e) the party intending to offer the child hearsay testimony gives sufficient notice to provide the adverse party with a fair opportunity to prepare. The notice must include the content of the statement, the approximate time, date, and location of the statement, the person to whom the statement was made, and the circumstances surrounding the statement that the offering party believes support the statement's reliability.

     (2) The court shall issue findings of fact and conclusions of law setting forth the court's reasoning on the admissibility of the child's testimony.

     (3) When deciding the admissibility of offered child hearsay testimony under subsections (1) and (2), a court shall consider the following:

     (a) the attributes of the child hearsay declarant, including:

     (i) the child's age;

     (ii) the child's ability to communicate verbally;

     (iii) the child's ability to comprehend the statements or questions of others;

     (iv) the child's ability to tell the difference between truth and falsehood;

     (v) the child's motivation to tell the truth, including whether the child understands the general obligation to speak truthfully and not fabricate stories;

     (vi) whether the child possessed sufficient mental capacity at the time of the alleged incident to create an accurate memory of the incident; and

     (vii) whether the child possesses sufficient memory to retain an independent recollection of the events at issue;

     (b) information regarding the witness who is relating the child's hearsay statement, including:

     (i) the witness's relationship to the child;

     (ii) whether the relationship between the witness and the child has an impact on the trustworthiness of the child's hearsay statement;

     (iii) whether the witness has a motive to fabricate or distort the child's statement; and

     (iv) the circumstances under which the witness heard the child's statement, including the timing of the statement in relation to the incident at issue and the availability of another person in whom the child could confide;

     (c) information regarding the child's statement, including:

     (i) whether the statement contains knowledge not normally attributed to a child of the declarant's age;

     (ii) whether the statement was spontaneous;

     (iii) the suggestiveness of statements by other persons to the child at the time that the child made the statement;

     (iv) if statements were made by the child to more than one person, whether those statements were consistent; and

     (v) the nearness in time of the statement to the incident at issue;

     (d) the availability of corroborative evidence through physical evidence or circumstantial evidence of motive or opportunity, including:

     (i) whether the alleged act can be corroborated; and

     (ii) if the child's statement identifies a perpetrator, whether that identity can be corroborated; and

     (e) other considerations that in the judge's opinion may bear on the admissibility of the child hearsay testimony.

     (4) As used in this section, "child" means a person under 15 years of age.

 

     Section 2.  Codification instruction. [Section 1] is intended to be codified as an integral part of Title 46, chapter 16, part 2, and the provisions of Title 46, chapter 16, part 2, apply to [section 1].

 

     Section 3.  Saving clause. [This act] does not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before [the effective date of this act].

 

     Section 4.  Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.

 

     Section 5.  Effective date. [This act] is effective July 1, 2003.

 

     Section 6.  Applicability. [This act] applies to criminal proceedings begun after June 30, 2003.

- END -

 


Latest Version of SB 263 (SB0263.ENR)
Processed for the Web on April 14, 2003 (1:18pm)

New language in a bill appears underlined, deleted material appears stricken.

Sponsor names are handwritten on introduced bills, hence do not appear on the bill until it is reprinted.

See the status of this bill for the bill's primary sponsor.

 Status of this Bill | 2003 Legislature | Leg. Branch Home
All versions of this bill inPDF
Authorized print version w/line numbers (PDF format)

Prepared by Montana Legislative Services
(406) 444-3064