CHAPTER 362

FORMERLY

SENATE BILL NO. 380

AS AMENDED BY SENATE AMENDMENT NO. 2

AN ACT TO AMEND CHAPTER 35, TITLE 11, DELAWARE CODE RELATING TO ADMISSIBILITY OF HEARSAY EVIDENCE IN CHILD ABUSE PROSECUTIONS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 35, Subchapter I, Title 11, Delaware Code by

adding a new section 3513 as follows:

"Section 3513. Hearsay Exception for Child Victim's Out-of-Court Statement of Abuse.

(A) An out-of-court statement made by a child under eleven years of age at the time of the proceeding concerning an act that is a material element of the offense relating to sexual abuse, or physical abuse as delineated in Sections 765, 766, 768, 769, 770, 771, 772, 773, 775, 783, 783A, 611, 612, 613 and 1108 of this Title that is not otherwise admissible in evidence is admissible in any judicial proceeding if the requirements of sections B through F are met.

(B) An out-of-court statement may be admitted as provided in Section A if:

(1) The child is present and his or her testimony touches upon the event and is subject to cross-examination rendering such prior statement admissible under Section 3507 of this title; or

(2)(a) the child is found by the court to be unavailable to testify on any of these grounds:

I) the child's death;

the child's absence from the jurisdiction;

the child's total failure of memory;

the child's persistent refusal to testify despite judicial
requests to do so;

the child's physical or mental disability;

the existence of a privilege involving the child;

the child's incompetency, including the child's inability to
communicate about the offense because of fear or a similar reason; or

substantial likelihood that the child would suffer severe
emotional trauma from testifying at the proceeding or by means of a videotaped deposition or closed-circuit television; and

(b) the child's out-of-court statement is shown to possess

particularized guarantees of trustworthiness.

(C) A finding of unavailability under section B(2)(a)(viii) must be

supported by expert testimony.

(D) The proponent of the statement must inform the adverse party of the proponent's intention to offer the statement and the content of the statement sufficiently in advance of the proceeding to provide the adverse party with a fair opportunity to prepare a response to the statement before the proceeding at which it is offered.

(E) In determining whether a statement possesses particularized guarantees of trustworthiness under section B(2), the court may consider, but is not limited to, the following factors:

(1) the child's personal knowledge of the event;

the age and maturity of the child;

certainty that the statement was made, including the credibility of the person testifying about the statement;

any apparent motive the child may have to falsify or distort the event, including bias, corruption, or coercion;

the timing of the child's statement;

whether more than one person heard the statement;

whether the child was suffering pain or distress when making the statement;

the nature and duration of any alleged abuse;

whether the child's young age makes it unlikely that the child fabricated a statement that represents a graphic, detailed account beyond the child's knowledge and experience;

whether the statement has a "ring of verity", has internal consistency or coherence, and uses terminology appropriate to the child's age;

whether the statement is spontaneous or directly responsive to questions.

whether the statement is suggestive due to improperly leading questions.

whether extrinsic evidence exists to show the defendant's opportunity to commit the act complained of in the child's statement.

(F) The court shall support with findings on the record any rulings

pertaining to the child's unavailability and the trustworthiness of the out-of-court statement."

Approved July 10, 1992.