IN RE: J.J. AND T.S.
Court of Appeals of Maryland, Barbera, Nov. 28, 2017,
Hearsay – Tender Years Exception – CP § 11-304 does not require a juvenile court to determine a child’s “truth competency” (ability to distinguish truth from falsehood) when ruling on the admissibility of the child’s out-of-court statement.
Facts:
In 2015, Wicomico police became involved in a sexual child abuse investigation involving JJ and TS. During the course of the investigation, JJ and TS spoke with a social worker at a Child Advocacy Center.
During that interview, JJ stated that her father forced her to perform oral sex on him.
At the CINA hearing, JJ’s interview was brought in as evidence.
JJ’s father objected, arguing that the judge needed to interview JJ and determine whether JJ was “truth competent” (could differentiate truth from falsehood).
The court disagreed and found that JJ was in need of assistance.
JJ’s father appealed, arguing that JJ’s statement was improperly allowed into evidence and that JJ should have been interviewed by the judge.
Held: The Court of Appeals disagreed, holding that a recorded statement does not require examination of the “truth competency” of the child.
Hearsay – Tender Years Exception – Under certain circumstances, an out-of-court statement made by a child under 13 may be admissible in a criminal or CINA case if the child was the victim of child abuse or a sexual offense
Hearsay – Tender Years Exception – In a criminal case, the out-of-court statement is only admissible if the child testifies. In a CINA case, the statement may be admissible regardless of whether the child testifies (though in that case, evidence that the suspect had opportunity to commit the crime is required).
Hearsay – Tender Years Exception – To be admissible, the out-of-court statement must have been made to and offered in court by:
(1) a physician;
(2) a psychologist;
(3) a nurse;
(4) a social worker;
(5) a principal, vice principal, teacher, or school counselor;
(6) a licensed or certified counselor; or
(7) a licensed or certified therapist.
Hearsay – Tender Years Exception – In order to be admitted, a child’s out-of-court statement must have “particularized guarantees of trustworthiness.” If the interview was recorded, judicial examination of the child his/herself is not required.