In 1989 the Pennsylvania General Assembly adopted an oddly named law of evidence titled: “Admissibility of Certain Statements.” The thrust of the statute is that under limited circumstances, if a court finds the hearsay statement “reliable” the statement of a child will be admitted for the truth of the matter asserted. The statement must relate to a fairly substantial crime. Without being exhaustive the crimes include assault, kidnapping, human trafficking, sexual offenses, and corruption of minors.

The declarant doesn’t have to be a victim. The evidence comes in whether the matter is civil (e.g., custody, protection from abuse) or criminal. The declarant has to have been under age 17 when the hearsay statement was made. It was age 12 until this month when the law was amended.

In order to admit the statement, the child declarant has to either testify or be “unavailable.” To do that requires a judicial ruling that the child’s testimony will result in serious emotional distress that impairs reasonable communication. To make that assessment the court is told to observe and question the child inside or outside the courtroom and/or hear testimony of a parent or custodian about the serious emotional distress. If the court is hearing parents or custodians relate the danger to the child the parties and their counsel have a right to be present. If the court is doing the examination of the child directly about the emotional distress, the defendant is not permitted. One assumes that rule comes out of concern that the defendant will intimidate the child although in a custody proceeding, it could be that the plaintiff is the person who is alleged to have committed a criminal offense.

This is a tricky statute by any measure. Let’s assume a 16 year old child expressing distress in school is called in by a counselor. During that conversation the child utters the words: “My father raped me last week.” The counselor makes the appropriate telephone calls, the authorities do their investigation and decide not to charge father. A custody case follows and let us assume the child now will not testify or wants to do some form of recant. If the child simply clams up and will not testify, the mother calls the counselor as a witness. The counselor takes the stand and it would appear that all parties are to be present. On these facts at least we have some reliable circumstances. The Child reveals embarrassing facts while away from both parents and in a place where she has not been “encouraged” to disclose a horrific experience.

My example is a simplistic version of a reported case from September 3, 2021 captioned Interest of D.C. A Minor, 2021 Pa.Super. 179.  This is a juvenile proceeding where a 15 year old boy is alleged to have sexually abused his three year old sister*. In June, 2019 the two children and their seven year old brother were staying with grandparents. The three year old informed grandma that her older brother had displayed his penis, asked his sister to lick it and showed her videos of others engaged in fellatio. The three year old is reported to have repeated this story to her mother in a phone call with her grandmother. She also told her grandfather about the incident. He recorded the child’s statement on his cellular phone.

Grandmother summons local police and the child was taken to be evaluated at Children’s Hospital of Philadelphia. Six months later he was placed in custody and charged with aggravated indecent assault. Soon afterward, the district attorney filed what the Court terms a “Tender Years Motion” under 42 Pa.C.S. 5985.1 asking the court to admit the statements the three year old made to her mother, grandparents and two investigators. Critically, the attorney for the alleged perpetrator filed a motion asking that the child victim be deemed incompetent to testify. Suffice to say that when the court granted that request, it would seemed to have unlocked the door to the Commonwealth’s request to admit the hearsay statements of the child to her family and investigators.

In this case, the court held a hearing to decide if the child’s testimony would cause serious emotion distress and concluded it would. The evidence presented included Mother’s testimony that the child shuts down when discussing her interactions with the defendant in therapy. The grandmother testified that the child victim is “very sensitive.” The court also questioned and observed the victim before making the ruling. The trial court did err in permitting the child interview to take place in the defendant’s presence but the court found that error was waived by failure to interpose an objection during the proceeding. The decision also notes that admissibility of evidence is evaluated using an abuse of discretion standard, even while acknowledging that the ruling does involve the Confrontation Clause found in the sixth amendment. (footnote 2).

The reported decision informs us that courts must evaluate the totality of circumstances when deciding to invoke the Tender Years Hearsay Act. Commonwealth v. Lyons, 833 A.2d 245, 253 (Pa.Super. 2003). This includes review whether the hearsay statements offered appeared spontaneous, consistent, and lacking circumstances where fabrication could be involved. Com. v. Strafford, 194 A.3d 168, 173 (Pa. Super. 2018).

There are some aspects of this decision which do present some sixth amendment concerns. This child seemed to have no reticence to speak to many people when the incident occurred. No reference is made to whether the video of the child’s disclosure recorded by the grandfather made it into evidence. It does appear that the incident involved a blended family and not all families blend nicely; a topic which goes to the matter of fabrication. Meanwhile one would hope that such animus would not leave an otherwise innocent teenager with a sex abuse adjudication.

The takeaway is that this Tender Years business is relevant in a custody or abuse proceeding and those actions do not present Sixth Amendment challenges. Thus, the threshold to allow the kiddie hearsay into evidence is far lower and would avoid the need for kids to testify “against” a parent. On the other hand the motivation/fabrication opportunities are still present and troubling. Suffice to say that it is a tool in the family lawyer’s chest and one which can be useful on several levels.

• Later facts imply that the victim and defendant may have been step siblings.

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