BILL REQ. #:  H-4286.1 

Read first time 01/23/2004.   Referred to Committee on Judiciary.

     AN ACT Relating to the admissibility of statements made by dependent persons; adding new sections to chapter 10.58 RCW; and creating a new section.

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

NEW SECTION.  Sec. 1   The legislature finds that the state has a compelling interest in making it possible for the courts to adequately and fairly conduct cases involving dependent persons who are the victims of crimes.
     The legislature further finds that court proceedings involving dependent persons may be hindered or precluded by circumstances related to the dependent person's situation, such as, but not limited to, memory problems associated with the length of time between the act or crime and the related court proceedings, even though the dependent person made a reliable statement about the crime or event shortly after it occurred, and the unavailability of the dependent person as a witness because of his or her physical or mental condition or difficulties with verbal communication, or because participation in the trial or proceeding has a substantial likelihood of resulting in significant emotional, mental, or physical harm.
     The legislature intends that this act make admissible as evidence the reliable hearsay of dependent persons beyond what is currently admissible, while respecting the constitutional rights of other parties. When utilizing the hearsay exception pursuant to this act, courts may find guidance in State v. Ryan, 103 Wn.2d 165 (1984), while recognizing the different factors set forth in this act as well as other factors that may apply to dependent persons. The legislature intends this act to facilitate fair and just adjudication of criminal and juvenile cases involving dependent persons in this state.

NEW SECTION.  Sec. 2   A new section is added to chapter 10.58 RCW to read as follows:
     The definitions in this section apply to section 3 of this act, unless the context clearly requires otherwise.
     (1) "Assault" means assault in the first degree, assault in the second degree, assault in the third degree, or assault in the fourth degree, as those crimes are defined in chapter 9A.36 RCW.
     (2) "Coercion" has the same meaning as defined in RCW 9A.36.070.
     (3) "Criminal mistreatment" means any of the crimes as defined in chapter 9A.42 RCW.
     (4) "Dependent person" has the same meaning as defined in RCW 9A.42.010.
     (5) "Fraud" means any of the crimes as defined in chapter 9A.60 RCW.
     (6) "Extortion" means extortion in the first degree and extortion in the second degree, as those crimes are defined in chapter 9A.56 RCW.
     (7) "Sex offense" means rape in the first degree, rape in the second degree, rape in the third degree, and indecent liberties, as those crimes are defined in chapter 9A.44 RCW.
     (8) "Unavailable" means the dependent person is unavailable under ER 804 in the Washington state court rules of evidence.

NEW SECTION.  Sec. 3   A new section is added to chapter 10.58 RCW to read as follows:
     (1) An out-of-court statement made by a dependent person describing an assault, a sex offense, coercion, criminal mistreatment, extortion, or fraud committed against the dependent person declarant is admissible in evidence in a criminal trial or juvenile offense adjudication proceeding if:
     (a) The court finds in a hearing conducted outside the presence of the jury, if any, that the time, content, and circumstances of the statement provide sufficient indicia of reliability. In making its determination, the court may consider: (i) The reliability of the declarant; (ii) the timing of the declaration; (iii) whether the declarant had an apparent motive to lie; (iv) the relationship of the declarant to the witness; (v) the relationship of the declarant to the actor; (vi) whether the declarant made the statement to more than one person; (vii) the mental and physical condition and cognitive ability of the dependent person; (viii) the nature and duration of the crime, neglect, abuse, sexual abuse, or exploitation; and (ix) any other factor deemed appropriate; and
     (b) The dependent person either:
     (i) Testifies; or
     (ii) The court finds the dependent person is unavailable as a witness, but when the dependent person is unavailable as a witness, the statement may be admitted only if there is corroborative evidence of the act.
     (2) 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.