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§ 11-304. Out-of-court statements of child victims

West's Annotated Code of MarylandCriminal ProcedureEffective: October 1, 2017

West's Annotated Code of Maryland
Criminal Procedure (Refs & Annos)
Title 11. Victims and Witnesses (Refs & Annos)
Subtitle 3. Trial Procedures (Refs & Annos)
Effective: October 1, 2017
MD Code, Criminal Procedure, § 11-304
§ 11-304. Out-of-court statements of child victims
Statement defined
(a) In this section, “statement” means:
(1) an oral or written assertion; or
(2) nonverbal conduct intended as an assertion, including sounds, gestures, demonstrations, drawings, and similar actions.
Cases in which out of court statements admissible as evidence
(b) Subject to subsections (c), (d), and (e) of this section, the court may admit into evidence in a juvenile court proceeding or in a criminal proceeding an out of court statement to prove the truth of the matter asserted in the statement made by a child victim who:
(1) is under the age of 13 years; and
(2) is the alleged victim or the child alleged to need assistance in the case before the court concerning:
(i) child abuse under § 3-601 or § 3-602 of the Criminal Law Article;
(ii) rape or sexual offense under §§ 3-303 through 3-307 of the Criminal Law Article;
(iii) attempted rape in the first degree or in the second degree under §§ 3-309 and 3-310 of the Criminal Law Article; or
(iv) in a juvenile court proceeding, abuse or neglect as defined in § 5-701 of the Family Law Article.
Out of court statements made to physicians, psychologists, nurses, social workers, and school employees
(c) An out of court statement may be admissible under this section only if the statement was made to and is offered by a person acting lawfully in the course of the person's profession when the statement was made who is:
(1) a physician;
(2) a psychologist;
(3) a nurse;
(4) a social worker;
(5) a principal, vice principal, teacher, or school counselor at a public or private preschool, elementary school, or secondary school;
(6) a counselor licensed or certified in accordance with Title 17 of the Health Occupations Article; or
(7) a therapist licensed or certified in accordance with Title 17 of the Health Occupations Article.
Statements admissible to prove the truth of the matter asserted
(d)(1) Under this section, an out of court statement by a child victim may come into evidence in a criminal proceeding or in a juvenile court proceeding other than a child in need of assistance proceeding under Title 3, Subtitle 8 of the Courts Article to prove the truth of the matter asserted in the statement:
(i) if the statement is not admissible under any other hearsay exception; and
(ii) if the child victim testifies.
(2)(i) In a child in need of assistance proceeding in the juvenile court under Title 3, Subtitle 8 of the Courts Article, an out of court statement by a child victim may come into evidence to prove the truth of the matter asserted in the statement:
1. if the statement is not admissible under any other hearsay exception; and
2. regardless of whether the child victim testifies.
(ii) If the child victim does not testify, the child victim's out of court statement will be admissible only if there is corroborative evidence that the alleged offender had the opportunity to commit the alleged abuse or neglect.
(3) To provide the defendant, child respondent, or alleged offender with an opportunity to prepare a response to the statement, the prosecuting attorney shall serve on the defendant, child respondent, or alleged offender and the attorney for the defendant, child respondent, or alleged offender within a reasonable time before the juvenile court proceeding and at least 20 days before the criminal proceeding in which the statement is to be offered into evidence, notice of:
(i) the State's intention to introduce the statement;
(ii) any audio or visual recording of the statement; and
(iii) if an audio or visual recording of the statement is not available, the content of the statement.
(4)(i) The defendant, child respondent, or alleged offender may depose a witness who will testify under this section.
(ii) Unless the State and the defendant, child respondent, or alleged offender agree or the court orders otherwise, the defendant, child respondent, or alleged offender shall file a notice of deposition:
1. in a criminal proceeding, at least 5 days before the date of the deposition; or
2. in a juvenile court proceeding, within a reasonable time before the date of the deposition.
(iii) Except where inconsistent with this paragraph, Maryland Rule 4-261 applies to a deposition taken under this paragraph.
Out of court statements with particularized guarantees of trustworthiness
(e)(1) A child victim's out of court statement is admissible under this section only if the statement has particularized guarantees of trustworthiness.
(2) To determine whether the statement has particularized guarantees of trustworthiness under this section, the court shall consider, but is not limited to, the following factors:
(i) the child victim's personal knowledge of the event;
(ii) the certainty that the statement was made;
(iii) any apparent motive to fabricate or exhibit partiality by the child victim, including interest, bias, corruption, or coercion;
(iv) whether the statement was spontaneous or directly responsive to questions;
(v) the timing of the statement;
(vi) whether the child victim's young age makes it unlikely that the child victim fabricated the statement that represents a graphic, detailed account beyond the child victim's expected knowledge and experience;
(vii) the appropriateness of the terminology of the statement to the child victim's age;
(viii) the nature and duration of the abuse or neglect;
(ix) the inner consistency and coherence of the statement;
(x) whether the child victim was suffering pain or distress when making the statement;
(xi) whether extrinsic evidence exists to show the defendant or child respondent had an opportunity to commit the act complained of in the child victim's statement;
(xii) whether the statement was suggested by the use of leading questions; and
(xiii) the credibility of the person testifying about the statement.
Hearings to determine admissibility of statements
(f) In a hearing outside of the presence of the jury or before the juvenile court proceeding, the court shall:
(1) make a finding on the record as to the specific guarantees of trustworthiness that are in the statement; and
(2) determine the admissibility of the statement.
Court examination of child victim
(g)(1) In making a determination under subsection (f) of this section, the court shall examine the child victim in a proceeding in the judge's chambers, the courtroom, or another suitable location that the public may not attend unless:
(i) the child victim:
1. is deceased; or
2. is absent from the jurisdiction for good cause shown or the State has been unable to procure the child victim's presence by subpoena or other reasonable means; or
(ii) the court determines that an audio or visual recording of the child victim's statement makes an examination of the child victim unnecessary.
(2) Except as provided in paragraph (3) of this subsection, any defendant or child respondent, attorney for a defendant or child respondent, and the prosecuting attorney may be present when the court hears testimony on whether to admit into evidence the out of court statement of a child victim under this section.
(3) When the court examines the child victim as paragraph (1) of this subsection requires:
(i) one attorney for each defendant or child respondent, one attorney for the child victim, and one prosecuting attorney may be present at the examination; and
(ii) the court may not allow a defendant or child respondent to be present at the examination.
Construction with other applicable hearsay exception or rule of evidence
(h)(1) This section does not limit the admissibility of a statement under any other applicable hearsay exception or rule of evidence.
(2) This section does not prohibit the court in a juvenile court proceeding from hearing testimony in the judge's chambers.

Credits

Added by Acts 2001, c. 10, § 2, eff. Oct. 1, 2001. Amended by Acts 2002, c. 213, § 6, eff. Oct. 1, 2002; Acts 2002, c. 273, § 3, eff. Oct. 1, 2002; Acts 2003, c. 21, § 1, eff. April 8, 2003; Acts 2011, c. 87, § 1, eff. Oct. 1, 2011; Acts 2011, c. 88, § 1, eff. Oct. 1, 2011; Acts 2017, c. 161, § 1, eff. Oct. 1, 2017; Acts 2017, c. 162, § 1, eff. Oct. 1, 2017.
Formerly Art. 27, § 775.

Editors' Notes

LEGISLATIVE NOTES
Revisor's Note (Acts 2001, c. 10):
This section is new language derived without substantive change from former Art. 27, § 775.
In subsections (d), (e), and (g) of this section, the reference to a child “victim” is added for clarity.
In subsections (d)(3) and (g)(2) and (3)(i) of this section, the references to a “child respondent” are added to the reference to “defendant” to clarify that these provisions apply to juvenile court as well as to criminal court.
In subsection (d)(3) of this section, the reference to the attorney “for the defendant or child respondent” is added to state expressly what formerly was merely implied--that an attorney for a defendant or child respondent is entitled to receive notice.
In subsection (d)(4)(i) of this section, the reference to a “defendant” is added to clarify that this provision applies to criminal court.
In subsection (d)(4)(ii) of this section, the reference to a “child respondent” is added for clarity.
In subsection (e)(2)(vi) of this section, the reference to a child victim's “expected” knowledge is added for clarity.
In subsection (e)(2)(viii) of this section, the reference to the nature and duration of the abuse “or neglect” is added to conform to the standards used in the Family Law Article. See, e.g., Fl §§ 5-702 and 5-704
In subsections (e)(2)(xi) and (g)(3)(ii) of this section, the references to a “child respondent” are added. See General Revisor's Note to title.
In subsection (g)(1) of this section, the phrase “that the public may not attend” is substituted for the former phrase “in camera” for clarity.
Also in subsection (g)(1) of this section, the reference to an examination “in the judge's chambers, the courtroom, or another suitable location” is added to clarify that the former reference to “in camera” was meant to exclude the public and not to limit where the examination occurred.
In subsection (g)(2) of this section, the reference to an attorney for a “child respondent” is added to state what formerly was merely implied--an attorney for a child respondent may be present when the court hears testimony.
Defined terms: “Child respondent” § 11-101
“Person” § 1-101
“Prosecuting attorney” § 11-101
HISTORICAL AND STATUTORY NOTES
2001 Legislation
Acts 2001, c. 10, § 14, provides:
“SECTION 14. AND BE IT FURTHER ENACTED, That the creation in this Act of separate definitions for the terms ‘victim’ and ‘victim's representative’ from broad definitions of ‘victim’ in the former law is intended for stylistic purposes only and does not narrow the meaning of the word ‘victim’ as used in Article 47 of the Constitution of Maryland.”
2002 Legislation
Acts 2002, c. 213, § 6, corrected references to former Article 27 to be references to the Criminal Law Article.
Acts 2002, c. 273, § 3, in subsec. (b)(2)(i), corrected references to Article 27 to be references to the Criminal Law Article.
2003 Legislation
Acts 2003, c. 21, § 1, throughout subsec. (d), substituted “the child respondent, or alleged offender” for “the child respondent.”
2011 Legislation
Acts 2011, c. 87, § 1, and Acts 2011, c. 88, § 1, in subsec. (b)(a), replaced “12 years” with “13 years”; and rewrote subsecs. (c), (d), and (g), which previously had read:
“(c) An out of court statement may be admissible under this section only if the statement was made to and is offered by a person acting lawfully in the course of the person's profession when the statement was made who is:
“(1) a physician;
“(2) a psychologist;
“(3) a nurse;
“(4) a social worker; or
“(5) a principal, vice principal, teacher, or school counselor at a public or private preschool, elementary school, or secondary school.
“(d)(1) Under this section, an out of court statement by a child victim may come into evidence to prove the truth of the matter asserted in the statement:
“(i) if the statement is not admissible under any other hearsay exception; and
“(ii) regardless of whether the child victim testifies.
“(2) If the child victim does not testify, the child victim's out of court statement will be admissible only if there is corroborative evidence that:
“(i) the defendant had the opportunity to commit the alleged crime; or
“(ii) the child respondent or the alleged offender had the opportunity to commit the alleged abuse or neglect.
“(3) To provide the defendant, child respondent, or alleged offender with an opportunity to prepare a response to the statement, the prosecuting attorney shall serve on the defendant, child respondent, or alleged offender and the attorney for the defendant, child respondent, or alleged offender within a reasonable time before the juvenile court proceeding and at least 20 days before the criminal proceeding in which the statement is to be offered into evidence, notice of:
“(i) the State's intention to introduce the statement; and
“(ii) the content of the statement.
“(4)(i) The defendant, child respondent, or alleged offender may depose a witness who will testify under this section.
“(ii) Unless the State and the defendant, child respondent, or alleged offender agree or the court orders otherwise, the defendant, child respondent, or alleged offender shall file a notice of deposition:
“1. in a criminal proceeding, at least 5 days before the date of the deposition; or
“2. in a juvenile court proceeding, within a reasonable time before the date of the deposition.
“(iii) Except where inconsistent with this paragraph, Maryland Rule 4-261 applies to a deposition taken under this paragraph.”
“(g)(1) In making a determination under subsection (f) of this section, the court shall examine the child victim in a proceeding in the judge's chambers, the courtroom, or another suitable location that the public may not attend unless the child victim:
“(i) is deceased; or
“(ii) is absent from the jurisdiction for good cause shown or the State has been unable to procure the child victim's presence by subpoena or other reasonable means.
“(2) Except as provided in paragraph (3) of this subsection, any defendant or child respondent, attorney for a defendant or child respondent, and the prosecuting attorney may be present when the court hears testimony on whether to admit into evidence the out of court statement of a child victim under this section.
“(3) When the court examines the child victim as paragraph (1) of this subsection requires:
“(i) one attorney for each defendant or child respondent, one attorney for the child victim, and one prosecuting attorney may be present at the examination; and
“(ii) the court may not allow a defendant or child respondent to be present at the examination.”
2017 Legislation
Acts 2017, c. 161, § 1, and Acts 2017, c. 162, § 1, rewrote (b)(2)(iii), which prior thereto read:
“(iii) attempted rape or attempted sexual offense in the first degree or in the second degree under §§ 3-309 through 3-312 of the Criminal Law Article; or”
MD Code, Criminal Procedure, § 11-304, MD CRIM PROC § 11-304
Current through all legislation from the 2018 Regular Session of the General Assembly
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