S-1652               _______________________________________________

 

                                         SUBSTITUTE SENATE BILL NO. 3452

                        _______________________________________________

 

State of Washington                              49th Legislature                              1985 Regular Session

 

By Senate Committee on Judiciary (originally sponsored by Senators Talmadge and Granlund)

 

 

Read first time 2/26/85.

 

 


AN ACT Relating to civil and criminal proceedings in sexual offense and dependency cases; amending RCW 9A.44.120; adding a new section to chapter 9A.44 RCW; and adding new sections to chapter 13.34 RCW.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

 

          NEW SECTION.  Sec. 1.  A new section is added to chapter 9A.44 RCW to read as follows:

          (1) This section applies only to a  criminal proceeding involving a sexual offense alleged to have been committed against a child under ten years of age.

          (2) The recording of an oral statement of the child made before the proceeding begins is admissible into evidence if the statement is admissible pursuant to RCW 9A.44.120 and if:

          (a) The recording is both visual and aural and is recorded on film or videotape or by other electronic means, or is aural and is recorded on tape or by other electronic means;

          (b) The recording equipment was capable of making an accurate recording, the operator of the equipment was competent, and the recording is accurate and has not been altered;

          (c) The statement was not made in response to questioning calculated to lead the child to make a particular statement;

          (d) Every voice on the recording is identified; and

          (e) All parties to the proceeding or the parties' attorneys are afforded an opportunity to view the recording before it is offered into evidence.

 

 

          NEW SECTION.  Sec. 2.  A new section is added to chapter 13.34 RCW to read as follows:

          (1) This section applies only to a  dependency proceeding involving abuse or neglect alleged to have been committed against a child under ten years of age.

          (2) The recording of an oral statement of the child made before the proceeding begins is admissible into evidence if the statement is admissible pursuant to section 3 of this act and if:

          (a) The recording is both visual and aural and is recorded on film or videotape or by other electronic means, or is aural and is recorded on tape or by other electronic means;

          (b) The recording equipment was capable of making an accurate recording, the operator of the equipment was competent, and the recording is accurate and has not been altered;

          (c) The statement was not made in response to questioning calculated to lead the child to make a particular statement;

          (d) Every voice on the recording is identified; and

          (e) The parties or the attorneys for the parties are afforded an opportunity to view the recording before it is offered into evidence.

 

          NEW SECTION.  Sec. 3.  A new section is added to chapter 13.34 RCW to read as follows:

          A statement made by a child when under the age of ten describing any act of abuse or neglect performed with or on the child by another, not otherwise admissible by statute or court rule, is admissible in evidence in a dependency proceeding brought under this chapter if:

          (1) The court finds that the time, content, and circumstances of the statement provide sufficient indicia of reliability; and

          (2) The child either:

          (a) Testifies at the proceedings; or

          (b) Is unavailable as a witness:  PROVIDED, That when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

          The child witness shall be deemed unavailable for the purposes of this section if the court determines that the child is not competent to testify or that there is a strong probability that the child would experience emotional trauma of a degree and kind that would seriously inhibit the child's ability to testify fully and accurately if the child were required to testify in open court.  Nothing in this section shall limit or expand the court's discretion in exercising reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to protect witnesses from harassment or undue embarrassment.

          A statement shall not be admitted under this section unless the proponent of the statement makes known to the adverse party the proponent's intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings to provide the adverse party with a fair opportunity to prepare to meet the statement.

 

        Sec. 4.  Section 2, chapter 129, Laws of 1982 and RCW 9A.44.120 are each amended to read as follows:

          A statement made by a child when under the age of ten describing any act of sexual contact performed with or on the child by another, not otherwise admissible by statute or court rule, is admissible in evidence in criminal proceedings in the courts of the state of Washington 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) The child either:

          (a) Testifies at the proceedings; or

          (b) Is unavailable as a witness:  PROVIDED, That when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.  The child witness shall be deemed unavailable for the purposes of this section if the court determines that the child is not competent to testify or that there is a strong probability that the child would experience emotional trauma of a degree and kind that would seriously inhibit the child's ability to testify fully and accurately if the child were required to testify in open court.  Nothing in this section shall limit or expand the court's discretion in exercising reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to protect witnesses from harassment or undue embarrassment.

          A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party his intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings to provide the adverse party with a fair opportunity to prepare to meet the statement.