Tender-Years Exception to the Hearsay Rule

Submitted by New Jersey Sex Crime Lawyer, Jeffrey Hark.

The tender-years exception to the hearsay rule which states:

[A] statement made by a child under the age of 12 relating to sexual misconduct committed with or against that child is admissible in a criminal, juvenile, or civil proceeding if (a) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; and (c) either (i) the child testifies at the proceeding, or (ii) the child is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse; provided that no child whose statement is to be offered in evidence pursuant to this rule shall be disqualified to be a witness in such proceeding by virtue of the requirements of Rule 601. [N.J.R.E. 803(c)(27).]

When there is Medical Evidence of Sexual Assault

In other words, if the state determines that a child is younger than 12, and does not want them to be cross examined at trial by a defendant and his attorney, the state can invoke this rule of evidence and request the court have a hearing under Rule 104.  If the court finds (a) trustworthiness of the statement when it was given, the child is unavailable and there is corroborative evidence of sexual assaultive conduct (medical evidence), than the evidence will come in without the actual testimony of the minor child actually testifying.

Read the complete case of New Jersey versus RK