Section 491.075

Title XXXIII EVIDENCE AND LEGAL ADVERTISEMENTS

Chapter 491

Effective - 28 Aug 2012, 3 histories   

  491.075.  Statement of child under fourteen or vulnerable person admissible, when. — 1.  A statement made by a child under the age of fourteen, or a vulnerable person, relating to an offense under chapter 565, 566, 568 or 573, performed by another, not otherwise admissible by statute or court rule, is admissible in evidence in criminal proceedings in the courts of this state as substantive evidence to prove the truth of the matter asserted if:

  (1)  The court finds, in a hearing conducted outside the presence of the jury that the time, content and circumstances of the statement provide sufficient indicia of reliability; and

  (2)  (a) The child or vulnerable person testifies at the proceedings; or

  (b)  The child or vulnerable person is unavailable as a witness; or

  (c)  The child or vulnerable person is otherwise physically available as a witness but the court finds that the significant emotional or psychological trauma which would result from testifying in the personal presence of the defendant makes the child or vulnerable person unavailable as a witness at the time of the criminal proceeding.

  2.  Notwithstanding subsection 1 of this section or any provision of law or rule of evidence requiring corroboration of statements, admissions or confessions of the defendant, and notwithstanding any prohibition of hearsay evidence, a statement by a child when under the age of fourteen, or a vulnerable person, who is alleged to be victim of an offense under chapter 565, 566, 568 or 573 is sufficient corroboration of a statement, admission or confession regardless of whether or not the child or vulnerable person is available to testify regarding the offense.

  3.  A statement may not be admitted under this section unless the prosecuting attorney makes known to the accused or the accused's counsel his or her intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings to provide the accused or the accused's counsel with a fair opportunity to prepare to meet the statement.

  4.  Nothing in this section shall be construed to limit the admissibility of statements, admissions or confessions otherwise admissible by law.

  5.  For the purposes of this section, "vulnerable person" shall mean a person who, as a result of an inadequately developed or impaired intelligence or a psychiatric disorder that materially affects ability to function, lacks the mental capacity to consent, or whose developmental level does not exceed that of an ordinary child of fourteen years of age.

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(L. 1985 H.B. 366, et al., A.L. 1992 S.B. 638, A.L. 2004 H.B. 1453, A.L. 2008 S.B. 714, et al., A.L. 2012 S.B. 628)

(2002) Subsection 1 of section does not require child-declarant to be a victim in order to admit his or her hearsay statements.  State v. Bass. 81 S.W.3d 595 (Mo.App.W.D.).

(2002) Section does not impose a burden on either party to prove reliability or unreliability, but places burden of production on proponent of hearsay statement.  State v. Porras, 84 S.W.3d 153 (Mo.App.W.D.).

(2006) Application of section is subject to the confrontation clause of the Sixth Amendment to the U.S. Constitution; child's out-of-court statements regarding molestation were testimonial statements made without defendant's opportunity to cross-examine the witness.  State v. Justus, 205 S.W.3d 872 (Mo.banc).

(2007) Absence of law enforcement factor in child victim's statements to her mother made them non-testimonial; admission of statements under section does not violate confrontation clause of Sixth Amendment.  In re N.D.C., 229 S.W.3d 602 (Mo.banc).

(2009) Section allowing admission of hearsay statements of child victim of sexual offenses is constitutional under the Confrontation Clause.  State v. Perry, 275 S.W.3d 237 (Mo.banc).

(2011)  Section allowing hearsay statements of a minor less than fourteen to be admitted as substantive evidence under certain conditions is constitutional.  State v. Biggs, 333 S.W.3d 472 (Mo.banc).