Child Hearsay in Criminal Cases

In order for the State of Indiana to meet their burden of “beyond a reasonable doubt” they often have to rely upon the testimony of witnesses as to what they heard, saw, or otherwise experienced through their senses.  From a constitutional standpoint, this testimony is generally requiring the witness to appear in court so that an individual can “confront and cross-examine” (Sixth Amendment to the U.S. Constitution) or otherwise meet them “face-to-face” (Article I, Section 13 of the Indiana Constitution).  This requirement also supports the Indiana Rules of Evidence general provision excluding hearsay evidence (an out of court statement used to prove the truth of the matter asserted.  Stated otherwise: Someone saying what someone or something else says). However, under Rule 807 to the Indiana Rules of Evidence, this general requirement can be circumvented in certain circumstances that the Rules of Evidence permit  or that is permitted via statute.  One such statute involves children or other “protected persons.”

What is The Protected Person Statute?

Indiana Code (“IC”) 35-37-4-6, also known as “The Protected Person Statute” codifies a special procedure for introducing otherwise inadmissible evidence in select cases involving crimes against children (typically we see these in child molest cases, however a “protected person” is not limited to children alone).  The Protected Person Statute places the responsibility on the trial court judge to make a number of findings outside the presence of a jury, where the ultimate goal is to determine the competency and credibility of the protected person, with significant focus on the circumstances surrounding the statements made outside of the courtroom to ensure reliability in them.  This reliability is key since the ultimate effect of the Protected Person Statute is to allow or not allow “testimony” from the protected person without them actually being physically present in the courtroom (be it video, audio or through a transcript read to the jury).

Matters that the trial court must specifically find are that:

1). The statement is made by a “protected person” (someone under 14 years of age or otherwise incapacitated)

2). The statement must concern an act that is a material element of the charged offense(s) (generally this is talking about the physical action of the crime, i.e. touching, hitting, etc.)

3). The statement is not otherwise admissible in evidence (under the Indiana Rules of Evidence there are exceptions to hearsay statements that might apply)

4). The protected person must attend a hearing, be subject to cross examination, and found unavailable at trial (i.e. the protected person does not understand the nature and obligation of an oath to tell the truth)

5). The time, content, and circumstances of the statement(s) must be found to provide sufficient indications of reliability.

Undoubtedly reading above one sees the logically inconsistent situation where we allow in a statement from someone who does not understand the nature and obligation of an oath to tell the truth.  Certainly that logic seems strange, however the reasoning for allowing such a statement to come in is due, as state above, to the time, circumstances, and content of the statements providing such reliability that we will not subject that protected person to the stress of trial testimony.  Central to any Protected Person’s Hearing will be the reliability of the statements.

Determining Reliability

When determining reliability, the trial court should consider all of the circumstances in which the statements were made, looking at (but not limited to):

1). The time and circumstances of the statement,

2). Whether there was a motive to fabricate,

3). The use of age-appropriate terminology,

4). Whether there was significant opportunity for coaching,

5). Spontaneity and repetition of the statement(s),

6). The relationship between the protected person and any witness to the statement(s).

If the trial court finds reliability and admissibility of the statements at the hearing, the protected person is subject to cross examination at the hearing, and if that person is found to be unavailable for trial (again, they don’t understand the oath), then their statement(s) can be introduced as evidence at trial through video, audio, transcript or other witness testimony (but if through witness testimony as to what they heard the protected person say, there is a limit as to how many separate witnesses can testify to the same thing).  If you are the adverse party to the statement coming in, you can certainly request that video, audio or transcription reading of the cross-examination be introduced at trial (from a fairness perspective).

The Protected Person’s Statute allowing such evidence to be introduced at trial is a relatively new area of the law, with very few cases ever having been heard in Indiana Trial Courts or Appellate Courts on these issues.  Also, there are many additional issues that arise in Protected Person’s Hearings that cannot be addressed in one blog (such as how the evidence is best brought in, whether any constitutional violations still exist after a hearing, if the Rules of Evidence bar this evidence, etc.).  It is also extremely important to note that the Protected Person’s Statute can be exercised by either the State of Indiana OR an Individual accused of a crime, so it is imperative for someone to find an attorney who is not only familiar with the procedure but also with how the statute can be used to someone’s advantage.

If you or somebody you know has recently been convicted of a crime or has questions about the criminal case process, contact the experienced criminal defense attorneys at Banks & Brower, LLC.  We are available at all times by calling us at 317-870-0019 or by emailing