2010 Pennsylvania Code
Chapter 59 - Depositions and Witnesses
5985.1 - Admissibility of certain statements.

     § 5985.1.  Admissibility of certain statements.
        (a)  General rule.--An out-of-court statement made by a child
     victim or witness, who at the time the statement was made was 12
     years of age or younger, describing any of the offenses
     enumerated in 18 Pa.C.S. Chs. 25 (relating to criminal
     homicide), 27 (relating to assault), 29 (relating to
     kidnapping), 31 (relating to sexual offenses), 35 (relating to
     burglary and other criminal intrusion) and 37 (relating to
     robbery), not otherwise admissible by statute or rule of
     evidence, is admissible in evidence in any criminal or civil
     proceeding if:
            (1)  the court finds, in an in camera hearing, that the
        evidence is relevant and that the time, content and
        circumstances of the statement provide sufficient indicia of
        reliability; and
            (2)  the child either:
                (i)  testifies at the proceeding; or
                (ii)  is unavailable as a witness.
        (a.1)  Emotional distress.--In order to make a finding under
     subsection (a)(2)(ii) that the child is unavailable as a
     witness, the court must determine, based on evidence presented
     to it, that testimony by the child as a witness will result in
     the child suffering serious emotional distress that would
     substantially impair the child's ability to reasonably
     communicate. In making this determination, the court may do all
     of the following:
            (1)  Observe and question the child, either inside or
        outside the courtroom.
            (2)  Hear testimony of a parent or custodian or any other
        person, such as a person who has dealt with the child in a
        medical or therapeutic setting.
        (a.2)  Counsel and confrontation.--If the court hears
     testimony in connection with making a finding under subsection
     (a)(2)(ii), all of the following apply:
            (1)  Except as provided in paragraph (2), the defendant,
        the attorney for the defendant and the attorney for the
        Commonwealth or, in the case of a civil proceeding, the
        attorney for the plaintiff has the right to be present.
            (2)  If the court observes or questions the child, the
        court shall not permit the defendant to be present.
        (b)  Notice required.--A statement otherwise admissible under
     subsection (a) shall not be received into evidence unless the
     proponent of the statement notifies the adverse party of the
     proponent's intention to offer the statement and the particulars
     of the statement sufficiently in advance of the proceeding at
     which the proponent intends to offer the statement into evidence
     to provide the adverse party with a fair opportunity to prepare
     to meet the statement.
     (Dec. 22, 1989, P.L.730, No.100, eff. 60 days; Dec. 18, 1996,
     P.L.1077, No.161, eff. 60 days; Oct. 18, 2000, P.L.615, No.84,
     eff. imd.; July 15, 2004, P.L.736, No.87, eff. imd.)

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