S3922-2011 Actions

• Jan 4, 2012: REFERRED TO CHILDREN AND FAMILIES
• Mar 9, 2011: REFERRED TO CHILDREN AND FAMILIES

S3922-2011 Memo

BILL NUMBER:S3922

TITLE OF BILL:

An act
to amend the criminal procedure law, in relation to admissibility of
certain out-of-court statements by a child less than twelve years old

PURPOSE OR GENERAL IDEA OF BILL:

To permit certain individuals to testify in cases of alleged child
sexual abuse, when the child is unable to testify or when the
testimony of an individual is relevant to the case in question.

SUMMARY OF SPECIFIC PROVISIONS:

The bill would amend the criminal
procedure law by adding a new �60.47, titled, Rules of Evidence;
admissibility of certain out-of-court statements of children less
than twelve years old.

JUSTIFICATION:

In many criminal cases, testimony by one person about what another
person said is inadmissible as hearsay. However, a number of state
courts have recently relaxed their rules regarding hearsay to make it
possible for this type of evidence to be used in child abuse cases in
lieu of testimony by the child who has suffered such abuse.

An exception to the hearsay rule is extremely important in cases of
child abuse, particularly in cases of very young children who are
unable to testify or have been determined to suffer possible severe
trauma by testifying.
Testimony presented by a law enforcement officer, medical
professional, or Office of Children and Family Services employee
regarding statements by a child less than twelve years of age which
show spontaneity and if the child's mental state are consistent in
terminology with the age of the child, shall be deemed admissible,
when the child is unavailable or refuses to testify, unless there is
evidence of personal bias or prejudice. The jury should deem all
hearsay admissible by virtue of the fact that it is worthy of
consideration by the jury.

LEGISLATIVE HISTORY:
A.4686 in the 2009/10 Session
A.2872 in the 2007/08 Session
A.5571 in the 2003/04 Session
A.4089 in the 2005/06 Session
A.1874 in the 2001/02 Session
A.3014 in the 1999/00 Session
A.9338 in the 1997/98 session

FISCAL IMPLICATIONS:

None.


EFFECTIVE DATE:

The first of November after it has become a law.

S3922-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                         3922
 2011-2012 Regular Sessions
 I N  SENATE
 March 9, 2011
 
 Introduced  by  Sen.  SMITH  -- read twice and ordered printed, and when
 printed to be committed to the Committee on Children and Families
 

AN ACT to amend the criminal procedure law, in relation to admissibility
 of certain out-of-court statements by a child less than  twelve  years
 old
 

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM
 BLY, DO ENACT AS FOLLOWS:

 

Section 1. The criminal procedure law  is  amended  by  adding  a  new
 section 60.47 to read as follows:

 

S 60.47 RULES  OF EVIDENCE; ADMISSIBILITY OF CERTAIN OUT-OF-COURT STATE
 MENTS OF CHILDREN LESS THAN TWELVE YEARS OLD.
 THE COURT MAY DETERMINE THAT A STATEMENT OF THE COMPLAINING WITNESS IS
 NOT MADE INADMISSIBLE BY THE HEARSAY RULE IF THE COURT FINDS ALL OF  THE
 FOLLOWING:

 1.  THE  STATEMENT WAS MADE BY A CHILD LESS THAN TWELVE YEARS OLD, AND
 THE CONTENTS OF THE STATEMENT WERE INCLUDED IN A  WRITTEN  REPORT  OF  A
 LOCAL  OR  STATE  LAW  ENFORCEMENT OFFICIAL OR OF AN EMPLOYEE OF A LOCAL
 DEPARTMENT OF SOCIAL SERVICES OR OF THE OFFICE OF  CHILDREN  AND  FAMILY
 SERVICES.
 2.  THE  STATEMENT  DESCRIBES  THE  MINOR  CHILD  AS A VICTIM OF A SEX
 OFFENSE INCLUDED IN ARTICLE ONE HUNDRED THIRTY OF THE PENAL LAW.
 3. THE STATEMENT SHOWED SPONTANEITY AND A CONSISTENT REPETITION OF THE
 FACTS, WAS STATED IN THE TERMINOLOGY CONSISTENT  WITH  THE  AGE  OF  THE
 CHILD, AND WAS REFLECTIVE OF THE MENTAL STATE OF THE CHILD.
 4.  THE  STATEMENT  WAS MADE BY A CHILD WHO HAD NO MOTIVE TO FABRICATE
 SUCH STATEMENT. THE COURT SHALL VIEW WITH CAUTION  THE  TESTIMONY  OF  A
 PERSON  RECOUNTING  HEARSAY  WHERE THERE IS EVIDENCE OF PERSONAL BIAS OR
 PREJUDICE.
 5. THE CHILD IS FOUND TO BE UNAVAILABLE OR REFUSES TO TESTIFY.
 

S 2. This act shall take effect on the first of November next succeed
 ing the date on which it shall have become a law.
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD10045-01-1

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