SENATE BILL NO. 487
INTRODUCED BY M. HALLIGAN
A BILL FOR AN ACT ENTITLED: "AN ACT CREATING A CHILD HEARSAY EXCEPTION IN CRIMINAL PROCEEDINGS; ALLOWING THE USE OF CHILD HEARSAY REGARDING OUT-OF-COURT STATEMENTS MADE BY A CHILD WITNESS OR 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 a traditional and transcendent 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 or witnesses to 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 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 proffered child hearsay testimony must be examined closely for reliability; and
WHEREAS, the Legislature finds that it is in the interests of justice to enact a child hearsay exception to the general hearsay rules.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
NEW SECTION. Section 1. Child hearsay exception -- criminal proceedings. (1) Otherwise
inadmissible hearsay is 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 domestic abuse, that is the subject of the criminal proceeding; or
(ii) the child is a witness to an alleged sexual offense or other crime of violence, including domestic abuse, that is the subject of the criminal proceeding;
(b) the court finds, after a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide circumstantial guarantees of trustworthiness;
(c) (i) the child testifies and the court finds that the child has not fully and accurately described the offense and the facts and circumstances surrounding the offense; or
(ii) the child is unavailable as a witness, whether through death, absence from the jurisdiction, incompetency, illness, infirmity, or other similar reason, including but not limited to trauma induced by the courtroom setting;
(d) the proffered 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 hearsay testimony gives advance notice of that intention to the adverse party sufficiently in advance of the proceedings to provide the adverse party with a fair opportunity to prepare to meet the statement. 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 indicate the statement's reliability.
(2) The admissibility of evidence under subsection (1) is in the discretion of the judge and may not be overturned unless an abuse of discretion is clearly shown. The judge shall issue findings of fact and conclusions of law setting forth the judge's ruling on the admissibility of child hearsay.
(3) When deciding the admissibility of proffered child hearsay testimony under subsections (1) and (2), a judge may consider the following guidelines:
(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 receive an accurate impression of the incident; and
(vii) whether the child possesses sufficient memory to retain an independent recollection of the events at issue;
(b) the witness relating the hearsay statement, including:
(i) the witness's relationship to the child;
(ii) whether the relationship between the witness and the child might have an impact on the trustworthiness of the hearsay statement;
(iii) whether the witness might have 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) 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 volunteered spontaneously;
(iii) the suggestiveness of prior statements by the witness relating the statement or by third parties present when the statement was made;
(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 direct, physical evidence, OR circumstantial
evidence, OF motive, or opportunity, including:
(i) whether the act alleged 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 proffered testimony.
NEW SECTION. 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].
NEW SECTION. 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].
NEW SECTION. 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.
NEW SECTION. Section 5. Effective date. [This act] is effective July 1, 2001.
NEW SECTION. Section 6. Applicability. [This act] applies to criminal proceedings begun after June 30, 2001.
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Latest Version of SB 487 (SB0487.02)
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