HB227: Hearsay exceptions; admissibility of statements by children in certain cases.


VIRGINIA ACTS OF ASSEMBLY -- CHAPTER
An Act to amend the Code of Virginia by adding a section numbered 19.2-268.3, relating to hearsay exceptions regarding the admissibility of statements by children in certain cases.
[H 227]
Approved
 

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia is amended by adding a section numbered 19.2-268.3 as follows:

§ 19.2-268.3. Admissibility of statements by children in certain cases.

A. As used in this section, "offense against children" means a violation or an attempt to violate § 18.2-31, 18.2-32, or 18.2-35, subsection A of § 18.2-47, § 18.2-48, 18.2-51, 18.2-51.2, 18.2-51.6, 18.2-52, 18.2-54.1, 18.2-54.2, 18.2-61, 18.2-67.1, 18.2-67.2, or 18.2-67.3, subsection B of § 18.2-346 if punishable as a felony, § 18.2-355, 18.2-356, 18.2-357, or 18.2-357.1, subsection B of § 18.2-361, subsection B of § 18.2-366, § 18.2-370, 18.2-370.1, 18.2-371.1, 18.2-374.1, 18.2-374.1:1, 18.2-374.3, or 18.2-374.4, § 18.2-386.1 if punishable as a felony, or § 40.1-103.

B. An out-of-court statement made by a child who is under 13 years of age at the time of trial or hearing who is the alleged victim of an offense against children describing any act directed against the child relating to such alleged offense shall not be excluded as hearsay under Rule 2:802 of the Rules of Supreme Court of Virginia if both of the following apply:

1. The court finds, in a hearing conducted prior to a trial, that the time, content, and totality of circumstances surrounding the statement provide sufficient indicia of reliability so as to render it inherently trustworthy. In determining such trustworthiness, the court may consider, among other things, the following factors:

a. The child's personal knowledge of the event;

b. The age, maturity, and mental state of the child;

c. The credibility of the person testifying about the statement;

d. Any apparent motive the child may have to falsify or distort the event, including bias or coercion;

e. Whether the child was suffering pain or distress when making the statement; and

f. Whether extrinsic evidence exists to show the defendant's opportunity to commit the act; and

2. The child:

a. Testifies; or

b. Is declared by the court to be unavailable as a witness; when the child has been declared unavailable, such statement may be admitted pursuant to this section only if there is corroborative evidence of the act relating to an alleged offense against children.

C. At least 14 days prior to the commencement of the proceeding in which a statement will be offered as evidence, the party intending to offer the statement shall notify the opposing party, in writing, of the intent to offer the statement and shall provide or make available copies of the statement to be introduced.

D. This section shall not be construed to limit the admission of any statement offered under any other hearsay exception or applicable rule of evidence.


HOUSE BILL NO. 227
AMENDMENT IN THE NATURE OF A SUBSTITUTE
(Proposed by the Senate Committee for Courts of Justice
on February 29, 2016)
(Patron Prior to Substitute--Delegate Albo)
A BILL to amend the Code of Virginia by adding a section numbered 19.2-268.3, relating to hearsay exceptions regarding the admissibility of statements by children in certain cases.

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia is amended by adding a section numbered 19.2-268.3 as follows:

§ 19.2-268.3. Admissibility of statements by children in certain cases.

A. As used in this section, "offense against children" means a violation or an attempt to violate § 18.2-31, 18.2-32, or 18.2-35, subsection A of § 18.2-47, § 18.2-48, 18.2-51, 18.2-51.2, 18.2-51.6, 18.2-52, 18.2-54.1, 18.2-54.2, 18.2-61, 18.2-67.1, 18.2-67.2, or 18.2-67.3, subsection B of § 18.2-346 if punishable as a felony, § 18.2-355, 18.2-356, 18.2-357, or 18.2-357.1, subsection B of § 18.2-361, subsection B of § 18.2-366, § 18.2-370, 18.2-370.1, 18.2-371.1, 18.2-374.1, 18.2-374.1:1, 18.2-374.3, or 18.2-374.4, § 18.2-386.1 if punishable as a felony, or § 40.1-103.

B. An out-of-court statement made by a child who is under 13 years of age at the time of trial or hearing who is the alleged victim of an offense against children describing any act directed against the child relating to such alleged offense shall not be excluded as hearsay under Rule 2:802 of the Rules of Supreme Court of Virginia if both of the following apply:

1. The court finds, in a hearing conducted prior to a trial, that the time, content, and totality of circumstances surrounding the statement provide sufficient indicia of reliability so as to render it inherently trustworthy. In determining such trustworthiness, the court may consider, among other things, the following factors:

a. The child's personal knowledge of the event;

b. The age, maturity, and mental state of the child;

c. The credibility of the person testifying about the statement;

d. Any apparent motive the child may have to falsify or distort the event, including bias or coercion;

e. Whether the child was suffering pain or distress when making the statement; and

f. Whether extrinsic evidence exists to show the defendant's opportunity to commit the act; and

2. The child:

a. Testifies; or

b. Is declared by the court to be unavailable as a witness; when the child has been declared unavailable, such statement may be admitted pursuant to this section only if there is corroborative evidence of the act relating to an alleged offense against children.

C. At least 14 days prior to the commencement of the proceeding in which a statement will be offered as evidence, the party intending to offer the statement shall notify the opposing party, in writing, of the intent to offer the statement and shall provide or make available copies of the statement to be introduced.

D. This section shall not be construed to limit the admission of any statement offered under any other hearsay exception or applicable rule of evidence.


HOUSE BILL NO. 227
AMENDMENT IN THE NATURE OF A SUBSTITUTE
(Proposed by the House Committee for Courts of Justice
on January 27, 2016)
(Patron Prior to Substitute--Delegate Albo)
A BILL to amend the Code of Virginia by adding a section numbered 19.2-268.3, relating to hearsay exceptions regarding the admissibility of statements by children in certain cases.

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia is amended by adding a section numbered 19.2-268.3 as follows:

§ 19.2-268.3. Admissibility of statements by children in sexual abuse, physical violence, or neglect cases.

A. An out-of-court statement made by a child who is under 13 years of age at the time of trial or hearing describing any sexual abuse of the child or describing any act of physical violence or neglect directed against the child shall not be excluded as hearsay under Rule 2:802 of the Rules of Supreme Court of Virginia if both of the following apply:

1. The court finds, in a hearing conducted prior to a trial, that the time, content, and totality of circumstances surrounding the statement provide sufficient indicia of reliability so as to render it inherently trustworthy. In determining such trustworthiness, the court may consider, among other things, the following factors:

a. The child's personal knowledge of the event;

b. The age, maturity, and mental state of the child;

c. The credibility of the person testifying about the statement;

d. Any apparent motive the child may have to falsify or distort the event, including bias or coercion;

e. Whether the child was suffering pain or distress when making the statement; and

f. Whether extrinsic evidence exists to show the defendant's opportunity to commit the act; and

2. The child:

a. Testifies; or

b. Is declared by the court to be unavailable as a witness; when the child has been declared unavailable, such statement may be admitted pursuant to this section only if there is corroborative evidence of the act of sexual abuse, physical violence, or neglect.

B. At least 14 days prior to the commencement of the proceeding in which a statement will be offered as evidence, the party intending to offer the statement shall notify the opposing party, in writing, of the intent to offer the statement and shall provide or make available copies of the statement to be introduced.

C. This section shall not be construed to limit the admission of any statement offered under any other hearsay exception or applicable rule of evidence.

HOUSE BILL NO. 227

Offered January 13, 2016
Prefiled December 29, 2015
A BILL to amend the Code of Virginia by adding a section numbered 19.2-268.3, relating to hearsay exceptions regarding the admissibility of statements by children and incapacitated adults in certain cases.
Patron-- Albo

Committee Referral Pending

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia is amended by adding a section numbered 19.2-268.3 as follows:

§ 19.2-268.3. Admissibility of statements by children and incapacitated adults in sexual abuse, physical violence, or neglect cases.

A. An out-of-court statement made by a child who is under 13 years of age at the time of trial or hearing or an "incapacitated adult" as defined in subsection C of § 18.2-369 describing any sexual abuse of the child or incapacitated adult or describing any act of physical violence or neglect directed against the child or incapacitated adult shall not be excluded as hearsay under Rule 2:802 of the Rules of Supreme Court of Virginia if both of the following apply:

1. The court finds, in a hearing conducted prior to a trial, that the time, content, and totality of circumstances surrounding the statement provide sufficient indicia of reliability so as to render it inherently trustworthy. In determining such trustworthiness, the court may consider, among other things, the following factors:

a. The child's or incapacitated adult's personal knowledge of the event;

b. The age, maturity, and mental state of the child or incapacitated adult;

c. The credibility of the person testifying about the statement;

d. Any apparent motive the child or incapacitated adult may have to falsify or distort the event, including bias or coercion;

e. Whether the child or incapacitated adult was suffering pain or distress when making the statement; and

f. Whether extrinsic evidence exists to show the defendant's opportunity to commit the act; and

2. The declarant:

a. Testifies or is available to testify at the proceedings; or

b. Is declared by the court to be unavailable as a witness; when the declarant has been declared unavailable, such statement may be admitted pursuant to this section only if there is corroborative evidence of the act of sexual abuse, physical violence, or neglect.

B. A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at least 10 days in advance of the proceedings.

C. This section shall not be construed to limit the admission of any statement offered under any other hearsay exception or applicable rule of evidence.