CHAPTER 334

FORMERLY

HOUSE BILL NO. 558

AS AMENDED BY HOUSE AMENDMENT NOS. 1 AND 2

AN ACT TO AMEND TITLE 11 OF THE DELAWARE CODE RELATING TO A HEARSAY EXCEPTION FOR INFIRM ADULTS AND PATIENTS AND RESIDENTS OF NURSING HOMES AND RELATED FACILITIES.

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

Section 1. Amend Chapter 35, Title 11 of the Delaware Code, by adding a new section 3516 which shall read as follows:

"Section 3516. Hearsay exception for infirm adult or patient or resident victim's out-of-court statement of abuse.

(a) An out-of-court statement made by an infirm adult, as defined in 31 Del.C. Section 3902, or by a patient or resident of a state facility, as defined in 16 Del.C, Section 1131, at the time of the proceeding concerning an act that is a material element of any of the following offenses:

(1) abuse, neglect, exploitation or mistreatment of an infirm adult or a patient/resident, as set forth in Section 3913 of Title 31 and §1136 of Title 16 respectively or;

(2) any felony set forth in Title 11 which is defined as a violent felony pursuant to Section 4201 of Title 11; or

(3) any felony set forth in Subparts D, E, H or I of Subchapter III of Chapter 5 of Title 11, that is not otherwise admissible in evidence, is admissible in any judicial proceeding if the requirements of subsections (b) through (f) of this section are met.

(b) An out-of-court statement may be admitted as provided in subsection (a) of this section if.

(1) the victim is present and the victim's 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 victim is found by the court to be unavailable to testify on any of these grounds and there is corroborative evidence to support the out-of-court statement;

1. the victim's death;

2. the victim's absence from the jurisdiction;

3. the victim's total failure of memory due to age or other infirmity;

0. the victim's physical or mental disability including the inability to communicate about the offense because of fear or a similar reason; or

5. Substantial likelihood that the victim would suffer severe medical or emotional trauma from testifying at the proceeding or by means of a videotaped deposition or closed-circuit television; and

b. The victim's out-of-court statement is shown to possess particularized guarantees of trustworthiness;

A finding of unavailability under subparagraph (b)(2)a.5. of this section must be supported by expert testimony;

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;

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

(1)The victim's personal knowledge of the event

(2)The victim's communicative and cognitive abilities at the time the statement is made;

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

(4)Any apparent motive the victim may have to falsify or distort the event, including bias, corruption, coercion or a history of false reporting;

(5)The timing of the victim's statement;

(6)Whether more than one person heard the statement;

(7)Whether the victim was suffering pain or distress when making the statement;

(8)The nature and duration of any alleged abuse, neglect, exploitation, or mistreatment;

(9)Whether the statement has a 'ring of verity', has internal consistency or coherence and uses terminology appropriate to the victim's mental abilities;

(10)Whether the statement is spontaneous or directly responsive to questions;

(11)Whether the statement is suggestive due to improperly leading questions; or

(12)Whether extrinsic evidence exists to show the defendant's opportunity to commit the act complained of in the victim's statement.

(f) The court shall support with findings on the record any rulings pertaining to the victim's unavailability and the trustworthiness of the out-of-court statement."

Approved June 29, 1998