The importance of the tender years hearsay exception

When allegations of abuse or neglect of a child arise, having the child found a Child in Need of Assistance can provide significant protection for the child.

However, the allegations of abuse and neglect in the CINA Petition must be proven at an adjudication hearing where the rules of evidence are in effect, including the prohibition of hearsay testimony.

Often allegations of abuse or neglect include statements made by the victim child to a professional, such as a physician or a therapist, in an out-of-court setting.

In general, such out-of-court statements which are offered to prove the truth of the matter asserted are inadmissible hearsay, unless permitted by statute or rule. In re J.J., 456 Md. 428, 432 (2017).

However, Maryland’s Criminal Procedure Article provides a “tender years” exception to the hearsay rule allowing the admission of out-of-court statements of a child under 13 years of age if made to certain specified professionals and if satisfying other required conditions.

Using the “tender years” exception to admit a child’s statements can relieve the child from the trauma of testifying in court.

“This statute addresses the inherent questions of trustworthiness raised by […] a young child’s out-of-court statement and balances the need to protect child victims from the trauma of court proceedings with the fundamental right of the accused to test the reliability of evidence proffered against him or her.” Montgomery Cnty. Dep’t of Health & Hum. Servs. v. P.F, 137 Md. App. 243, 272 (2001); see also Prince George’s County Department of Social Services v. Taharaka, 254 Md. App. 155 (2022).

Although the tender years exception is found in the Criminal Procedure Article, it applies in CINA cases.

The exception requires that the child’s statements concerning the abuse or neglect must have been made to a physician, psychologist, nurse, social worker, therapist, counselor, forensic interviewer, teacher or other specified school personnel in the course of their professional duties.

The statements of the child victim may be written, oral and may include “sounds, gestures, demonstrations, drawings and similar actions.”

The alleged offender, and the alleged offender’s attorney, are entitled to advance notice of the intention to introduce the statement, and of the content of the statement, which in a CINA case means “within a reasonable time before the juvenile court proceeding.”

The court may admit the child victim’s statements in a CINA case only “if there is corroborative evidence that the alleged offender had the opportunity to commit the alleged abuse or neglect” and “only if the statement has particularized guarantees of trustworthiness.”

To determine whether a statement has particularized guarantees of trustworthiness, the court considers an expansive set of 13 factors, including whether the statement was spontaneous; whether leading questions were used to elicit the statement; any motivation to fabricate the statement, including by bias or coercion; whether the child’s alleged terminology is appropriate to the child’s age; the credibility of the person testifying to the child’s statements; and the internal coherence of the child’s statement.

In determining specific guarantees of trustworthiness, the court must also examine the child victim, unless the statements come in the form of a recording.

In an unreported case, the Appellate Court of Maryland held that the alleged abuser’s attorney was not entitled to be present during the juvenile court’s examination of the child victim under § 11-304(g)(2), as the statute permitted the attorney for a “defendant” to be present, but a parent in a CINA case is not a defendant. In re I.W., 2023 WL 3642083 (May 25, 2023).

After examining the child, the court must make a finding on the record as to the particularized guarantees of trustworthiness and the admissibility of the child’s statements.

Notably, the Maryland Supreme Court has held there is no prerequisite that the juvenile court determine the child’s “truth competency”, the demonstration that a child can distinguish between a truth and a falsehood, before admitting the child’s statements. In re J.J., 456 Md. 428, 433 (2017).

The tender years exception is an important tool for child advocates, to protect children from re-experiencing the trauma of their original abuse or neglect while testifying.

Advocates must pay careful attention to the § 11-304 procedural requirements so that the child’s out-of-court statements are admissible.

Richard Perry is a Supervising Attorney at Maryland Legal Aid.