§ 81. Criminal proceedings; out-of-court statements describing sexual contact; admissibility

81. Criminal proceedings; out-of-court statements describing sexual contact; admissibility

(a) An out-of-court statement of a child under the age of ten describing an act of sexual contact performed on or with the child, the circumstances under which it occurred, or which identifies the perpetrator shall be admissible as substantive evidence in any criminal proceeding; provided, however, that the statement is offered as evidence of a material fact and is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; the person to whom the statement was made or who heard the child make the statement testifies; the judge finds pursuant to subsection (b) that the child is unavailable as a witness; and the judge finds pursuant to subsection (c) that the statement is reliable.

(b) The proponent of such statement shall demonstrate a diligent and good faith effort to produce the child and shall bear the burden of showing unavailability. A finding of unavailability shall be supported by specific findings on the record, describing facts with particularity, demonstrating that:

(1) the child is unable to be present or to testify because of death or physical or mental illness or infirmity; or

(2) by a ruling of the court, the child is exempt on the ground of privilege from testifying concerning the subject matter of such statement; or

(3) the child testifies to a lack of memory of the subject matter of such statement; or

(4) the child is absent from the hearing and the proponent of such statement has been unable to procure the attendance of the child by process or by other reasonable means; or

(5) the court finds, based upon expert testimony from a treating psychiatrist, psychologist, or clinician, that testifying would be likely to cause severe psychological or emotional trauma to the child; or

(6) the child is not competent to testify.

(c) If a finding of unavailability is made, the out-of-court statement shall be admitted if the judge further finds: (1) after holding a separate hearing, that such statement was made under oath, that it was accurately recorded and preserved, and there was sufficient opportunity to cross-examine; or (2) after holding a separate hearing and, where practicable and where not inconsistent with the best interests of the child, meeting with the child, that such statement was made under circumstances inherently demonstrating a special guarantee of reliability.

For the purposes of finding circumstances demonstrating reliability pursuant to clause (2) of subsection (c), a judge may consider whether the relator documented the child witness's statement, and shall consider the following factors:

(i) the clarity of the statement, meaning, the child's capacity to observe, remember, and give expression to that which such child has seen, heard, or experienced; provided, however, that a finding under this clause shall be supported by expert testimony from a treating psychiatrist, psychologist, or clinician;

(ii) the time, content and circumstances of the statement;

(iii) the child's sincerity and ability to appreciate the consequences of such statement.

(d) An out-of-court statement which is admissible by common law or by statute shall remain admissible notwithstanding the provisions of this section.