491.075. Statement of child under fourteen admissible, when.
Statement of child under fourteen admissible, when.
491.075. 1. A statement made by a child under the age of fourteenrelating to an offense under chapter 565, 566, 568 or 573, RSMo, performedwith or on a child by another, not otherwise admissible by statute or courtrule, is admissible in evidence in criminal proceedings in the courts ofthis state as substantive evidence to prove the truth of the matterasserted if:
(1) The court finds, in a hearing conducted outside the presence ofthe jury that the time, content and circumstances of the statement providesufficient indicia of reliability; and
(2) (a) The child testifies at the proceedings; or
(b) The child is unavailable as a witness; or
(c) The child is otherwise physically available as a witness but thecourt finds that the significant emotional or psychological trauma whichwould result from testifying in the personal presence of the defendantmakes the child unavailable as a witness at the time of the criminalproceeding.
2. Notwithstanding subsection 1 of this section or any provision oflaw or rule of evidence requiring corroboration of statements, admissionsor confessions of the defendant, and notwithstanding any prohibition ofhearsay evidence, a statement by a child when under the age of fourteen whois alleged to be victim of an offense under chapter 565, 566, 568 or 573,RSMo, is sufficient corroboration of a statement, admission or confessionregardless of whether or not the child is available to testify regardingthe offense.
3. A statement may not be admitted under this section unless theprosecuting attorney makes known to the accused or the accused's counselhis or her intention to offer the statement and the particulars of thestatement sufficiently in advance of the proceedings to provide the accusedor the accused's counsel with a fair opportunity to prepare to meet thestatement.
4. Nothing in this section shall be construed to limit theadmissibility of statements, admissions or confessions otherwise admissibleby law.
(L. 1985 H.B. 366, et al., A.L. 1992 S.B. 638, A.L. 2004 H.B. 1453, A.L. 2008 S.B. 714, et al.)Effective 6-30-08
(2002) Subsection 1 of section does not require child-declarant to be a victim in order to admit his or her hearsay statements. State v. Bass. 81 S.W.3d 595 (Mo.App.W.D.).
(2002) Section does not impose a burden on either party to prove reliability or unreliability, but places burden of production on proponent of hearsay statement. State v. Porras, 84 S.W.3d 153 (Mo.App.W.D.).
(2006) Application of section is subject to the confrontation clause of the Sixth Amendment to the U.S. Constitution; child's out-of-court statements regarding molestation were testimonial statements made without defendant's opportunity to cross-examine the witness. State v. Justus, 205 S.W.3d 872 (Mo.banc).
(2007) Absence of law enforcement factor in child victim's statements to her mother made them non-testimonial; admission of statements under section does not violate confrontation clause of Sixth Amendment. In re N.D.C., 229 S.W.3d 602 (Mo.banc).
(2009) Section allowing admission of hearsay statements of child victim of sexual offenses is constitutional under the Confrontation Clause. State v. Perry, 275 S.W.3d 237 (Mo.banc).