10 Children’s Legal Rights Journal [Vol. 36: 1 2016]
trauma for the child. An example of this exception is in the Illinois statute, which states that a
hearsay statement will only be admitted after the court determines, in a separate hearing, that the
statement is reliable based on the context in which it was spoken. However, the child must still
testify at trial, or corroborating evidence must be presented if the child is unavailable to testify.97
Many parts of this statute are left open to interpretation. The element of reliability or
trustworthiness is determined based on a “totality of circumstances,” while a witness being
“unavailable” could indicate physical unavailability or emotional unavailability ( i.e., extreme
distress or fear).98
The remaining fourteen states statutes provide lists of factors for the court to consider when
making decisions about the admissibility of hearsay statements. For example, Montana lists a wide
range of factors for the court to consider, including the child’s age, ability to communicate
verbally, comprehension level, ability to distinguish between a truth and a lie, and factors such as
motive and spontaneity.99 State statutes also vary on the age specifics for child witnesses with
regard to the admissibility of hearsay statements. The Arkansas statute applies only to children
under the age of ten;100 Indiana, under age fourteen or developmentally disabled;101 Kansas, under
age thirteen;102 Maryland, under age thirteen;103 Massachusetts, under age ten;104 Missouri, under
age fourteen;105 Montana, under age fifteen;106 Ohio, under age twelve;107 and there is no age
specified for Oregon,108 Rhode Island,109 South Carolina,110 Tennessee,111 Virginia,112 or
Wisconsin.113 Two states (South Carolina114 and Tennessee115) require that hearsay statements be
accompanied by videotaped deposition if the child is not testifying at trial.
Another concern is the ambiguous wording of hearsay exception statutes, particularly as to
statements regarding emotional distress. As noted previously, the court process is usually
traumatizing for children.116 For hearsay exceptions to take effect, the potential for trauma must
be extreme and established by expert testimony that the child will suffer extreme emotional distress
as a result of testifying about their abusive experience.117 For example, Indiana’s statute provides
three exceptions: ( 1) expert testimony stating the child will suffer severe emotional distress by
97725 ILL. COMP. STAT. §115-10 (West 2015). (Certain hearsay exceptions apply to this rule).
98HALL & SALES, supra note 15, at 50.
99MONT. CODE ANN. §46-16-220 (West 2015). (Child hearsay exceptions apply to criminal proceedings, including:
when the child is a victim of a sexual or violent offense, the child is unavailable to testify during trial, or that the
hearsay statement is trustworthy based on the context of when it was made).
100ARK. R. EVID. 804 (West 2015).
101IND. CODE ANN. § 35-37- 4-6 (West 2015).
102KAN. STAT. ANN. § 38-2249 (West 2015).
103MD. CODE ANN., CRIM. PROC. § 11-304 (West 2015).
104MASS. GEN. LAWS ANN. ch. 233,§ 81 (West 2015).
ANN.STAT. § 491.075 (West 2015).
106 MONT. CODE ANN. §46-16-220 (West 2015).
107OHIO. R. EVID. 807.
108OR. R. EVID. 803 ( 18(d)).
109R.I. GEN. LAWS ANN.§ 40-11-7.2 (West 2015) (Pertaining only to admissibility of videotaped interview of children).
110S.C. CODE ANN. § 17-23-175 (West 2015).
111TENN. CODE ANN. § 24-7-123 (West 2015).
112VA. CODE ANN. §
19.2-268.2 (West 2015).
113WIS. STAT. ANN. § 908.08 (West 2015).
114S.C. CODE ANN. § 17-23-175 (West 2015).
115TENN. CODE ANN. § 24-7-123 (West 2015).
116HALL & SALES, supra note 15, at 6.
117Id. at 50.