H*2395 Session 107 (1987-1988)
H*2395(Rat #0765, Act #0649 of 1988) General Bill, By P. Evatt, D.M. Beasley,
Hayes and T.E. Huff
A Bill to amend Chapter 1, Title 19, Code of Laws of South Carolina, 1976,
relating to evidence, by adding Section 19-1-180 so as to provide that an
out-of-court statement made by a child less than twelve years of age in
specified legal proceedings may be admitted into evidence under certain
circumstances; to amend Chapter 11, Title 19, relating to competency of
witnesses, by adding Section 19-11-25 so as to provide that every child who is
an alleged victim of abuse or neglect is presumed to be a competent witness,
may be allowed to testify in a judicial proceeding related thereto, and to
allow this presumption to be rebutted.-amended title
02/04/87 House Introduced and read first time HJ-390
02/04/87 House Referred to Committee on Judiciary HJ-390
02/17/88 House Committee report: Favorable with amendment
Judiciary HJ-1222
02/24/88 House Amended HJ-1442
02/24/88 House Read second time HJ-1442
02/25/88 House Read third time and sent to Senate HJ-1514
03/01/88 Senate Introduced and read first time SJ-15
03/01/88 Senate Referred to Committee on Judiciary SJ-15
04/06/88 Senate Committee report: Majority favorable with amend.,
minority unfavorable Judiciary SJ-128
05/26/88 Senate Minority report removed
05/31/88 Senate Amended SJ-61
05/31/88 Senate Read second time SJ-64
05/31/88 Senate Unanimous consent for third reading on next
legislative day SJ-64
06/01/88 Senate Read third time SJ-8
06/01/88 Senate Returned SJ-8
06/01/88 House Concurred in Senate amendment and enrolled HJ-4477
06/02/88 Ratified R 765
06/03/88 Signed By Governor
06/03/88 Effective date 06/03/88
06/03/88 Act No. 649
06/21/88 Copies available
(A649, R765, H2395)
AN ACT TO AMEND CHAPTER 1, TITLE 19, CODE OF LAWS OF SOUTH CAROLINA, 1976,
RELATING TO EVIDENCE, BY ADDING SECTION 19-1-180 SO AS TO PROVIDE THAT AN
OUT-OF-COURT STATEMENT MADE BY A CHILD LESS THAN TWELVE YEARS OF AGE IN SPECIFIED
LEGAL PROCEEDINGS MAY BE ADMITTED INTO EVIDENCE UNDER CERTAIN CIRCUMSTANCES; TO
AMEND CHAPTER 11, TITLE 19, RELATING TO COMPETENCY OF WITNESSES, BY ADDING
SECTION 19-11-25 SO AS TO PROVIDE THAT EVERY CHILD WHO IS AN ALLEGED VICTIM OF
ABUSE OR NEGLECT IS PRESUMED TO BE A COMPETENT WITNESS, MAY BE ALLOWED TO TESTIFY
IN A JUDICIAL PROCEEDING RELATED THERETO, AND TO ALLOW THIS PRESUMPTION TO BE
REBUTTED.
Be it enacted by the General Assembly of the State of South Carolina:
Out-of-court statements by certain children
SECTION 1. Chapter 1, Title 19 of the 1976 Code is amended by adding:
"Section 19-1-180. (A) An out-of-court statement made by a child under
twelve years of age at the time of the family court proceeding brought pursuant
to Section 20-7-610 or 20-7-736 concerning an act of abuse or neglect as defined
by Section 20-7-490 that is not otherwise admissible in evidence is admissible
in the family court proceeding if the requirements of this section are met.
(B) An out-of-court statement may be admitted as provided in subsection (A)
if:
(1) the child testifies at the proceeding or testifies by means of
videotaped deposition or closed-circuit television, and at the time of the
testimony the child is subject to cross-examination about the statement; or
(2) (a) the child is found by the court to be unavailable to testify on any
of these grounds:
( i) the child's death;
( ii) the child's physical or mental disability;
(iii) the existence of a privilege involving the child;
( iv) the child's incompetency, including the child's inability to
communicate about the offense because of fear;
( v) substantial likelihood that the child would suffer severe
emotional trauma from testifying at the proceeding or by means of videotaped
deposition or closed-circuit television; and
(b) the child's out-of-court statement is shown to possess
particularized guarantees of trustworthiness.
(C) The proponent of the statement shall inform the adverse party of the
proponent's intention to offer the statement and the content of the statement
sufficiently in advance of the proceeding to provide the defendant with a fair
opportunity to prepare a response to the statement before the proceeding at which
it is offered.
(D) In determining whether a statement possesses particularized guarantees of
trustworthiness under subsection (B)(2)(b), the court may consider, but is not
limited to, the following factors:
( 1) the child's personal knowledge of the event;
( 2) the age and maturity of the child;
( 3) certainty that the statement was made, including the credibility of the
person testifying about the statement;
( 4) any apparent motive the child may have to falsify or distort the event,
including bias, corruption, or coercion;
( 5) whether more than one person heard the statement;
( 6) whether the child was suffering pain or distress when making the
statement;
( 7) the nature and duration of any alleged abuse;
( 8) whether the child's young age makes it unlikely that the child
fabricated a statement that represents a graphic, detailed account beyond the
child's knowledge and experience;
( 9) whether the statement has a ring of verity, has internal consistency
or coherence, and uses terminology appropriate to the child's age;
(10) whether extrinsic evidence exists to show the defendant's opportunity
to commit the act complained of in the child's statement.
(E) The court shall support with findings on the record any rulings pertaining
to the child's unavailability and the trustworthiness of the out-of-court
statement.
(F) Any hearsay testimony admissible under this section shall not be
admissible in any other proceeding.
(G) If the parents of the child are separated or divorced, the hearsay
statement shall be inadmissible if (1) one of the parents is the alleged
perpetrator of the alleged abuse or neglect and (2) the allegation was made after
the parties separated or divorced."
Presumed competency of children as witnesses
SECTION 2. Chapter 11, Title 19 of the 1976 Code is amended by adding:
"Section 19-11-25. Every child who is an alleged victim of abuse or
neglect as defined in Section 20-7-490 shall be presumed to be a competent
witness and shall be allowed to testify in any judicial proceeding regarding the
alleged abuse or neglect. However, the presumption may be rebutted by evidence
to the contrary. The trier of fact shall determine the weight and credibility
of the testimony."
Videotaped deposition of children
SECTION 3. Any party, including a guardian ad litem, during a family court
proceeding relating to abuse or neglect, may request a videotaped deposition of
a child with appropriate notice to all other parties who shall be given the right
of cross-examination. Failure without good cause to attend the deposition or to
cross-examine shall not be a ground for objection to the admissibility of the
deposition in any proceeding related to the pending action.
Time effective
SECTION 4. This act takes effect upon approval by the Governor. |