Bill 2395

                    Current Status

Bill Number:               2395
Ratification Number:       765
Act Number                 649
Introducing Body:          House
Subject:                   Out-of-court statements by certain
                           children

(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.