H-1765.1  _______________________________________________

                          HOUSE BILL 2151

          _______________________________________________

State of Washington      57th Legislature     2001 Regular Session

By Representatives Carrell and Talcott

Read first time 02/19/2001.  Referred to Committee on Judiciary.

Allowing certain out-of-court statements to be admitted as evidence.

    AN ACT Relating to witness unavailability due to incompetency or death; and adding a new section to chapter 5.60 RCW.

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

NEW SECTION. Sec. 1.  A new section is added to chapter 5.60 RCW to read as follows:

    (1) An out-of-court statement, not otherwise admissible by statute or court rule, made by a person describing an act constituting an assault or a sex offense against the declarant when the act results in substantial bodily harm, as defined in RCW 9A.04.110, to the declarant or in the death of the declarant, is admissible as evidence in a criminal or juvenile offense adjudication proceeding if the court finds:

    (a) That the declarant was competent under RCW 5.60.050 at the time the out-of-court statement was made;

    (b) That the declarant is unavailable as a witness at trial under evidence rule 804(a);

    (c) There is corroborative evidence of the act against the declarant; and

    (d) In a hearing conducted outside the presence of the jury, if any, that the time, content, and circumstances of the out-of-court statement provide sufficient indicia of reliability.

    (2) In making its finding under subsection (1) of this section, the court shall consider whether, at the time the statement was made, the reliability of the declaration was indicated by:

    (a) The general character and trustworthiness of the declarant;

    (b) The timing of the declaration;

    (c) The declarant's lack of motive to lie;

    (d) The relationship of the declarant to the witness;

    (e) Whether the declarant made the statement to more than one person;

    (f) The mental and physical condition and cognitive ability of the declarant;

    (g) Whether the statement was made spontaneously;

    (h) Whether the statement expressed assertions of past fact;

    (i) Whether cross-examination would not have helped to show the declarant's lack of knowledge;

    (j) Whether the possibility of the declarant's recollection being faulty was remote;

    (k) Whether the circumstances surrounding the statements gave no reason to suppose that the declarant misrepresented the defendant's involvement;

    (l) The relationship of the declarant to the actor;

    (m) The nature and duration of the assault or sexual offense; and

    (n) Any other factor deemed appropriate.

    (3) Unless excused for good cause shown, a statement may not be admitted under this section unless the proponent of the statement gives notice to the adverse party of his or her 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 challenge the admissibility of the statement at a hearing.  The court shall state the basis for its ruling by making specific findings of fact on the record.

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