Permits certain out-of-court statements by a child less than twelve years old to be admissible in court in cases of sex offenses and where the child is unavailable or unwilling to testify, among other criteria.
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.
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
The first of November after it has become a law.
STATE OF NEW YORK ________________________________________________________________________ 3922 2011-2012 Regular Sessions IN 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