For Immediate Release
5/07/07

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Paula Fogarty
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Senate Approves Greenleaf Bill On Child Testimony

HARRISBURG—The State Senate unanimously approved Senate Bill 699, offered by Sen. Stewart J. Greenleaf, R-Montgomery/Bucks, to shore up a law pertaining to child testimony.

The measure was offered in response to a recent State Superior Court decision (Commonwealth v. Kriner) vacating a rape conviction on the grounds that the death of a child victim did not meet the unavailability standard of the tender years hearsay exception law.  The tender years exception law allows a court to admit out-of-court statements by a child age 12 and under if the child is unavailable and the statements are determined by the court in a pre-trial hearing to meet standards of reliability and relevance.  The law applies to child witnesses in cases involving charges of criminal homicide, kidnapping, assault, sexual offenses, burglary and criminal intrusion, and robbery.

The court based its decision to vacate the rape conviction on changes made to the tender years hearsay exception law following the passage of an amendment to the Pennsylvania Constitution allowing child witnesses to testify by electronic means if the child would suffer severe emotional distress.  However, Greenleaf said that the appellate court's interpretation of unavailability in the Kriner case frustrates the intent of the tender years hearsay exception law and conflicts with how unavailability is commonly interpreted in the Pennsylvania rules of evidence and the federal rules of evidence in court.

In the Kriner case, the victim was 11-years-old when she died as the result of an automobile accident.  She had made statements concerning her sexual abuse at the hands of the defendant to her mother, grandmother, sister, doctor and child welfare workers, but the court denied the admissibility of those statements because it said her death did not meet the definition of unavailability for the purposes of the tender years hearsay exception law.  The court held that the only applicable cause of unavailability in that law is "severe emotional distress."

To address the Superior Court decision, Greenleaf's legislation would further define unavailability for the tender years hearsay exception to include death of the witness or the witness's then existing physical or mental illness or infirmity.  Basically, this legislation incorporates the definition of unavailability of a witness from Rule 804 of the Pennsylvania Rules of Evidence.  "It is unfortunate that the Legislature needs to pass legislation re-stating one of the state rules of evidence as it pertains to the tender years exception," he said. "But, if that is what needs to be done to ensure access to justice for children in the commonwealth, then it is important that it be done as soon as possible," Greenleaf said.

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