Protected Person Hearing vs. Child Hearsay Hearing

The terms “protected person hearing” and “child hearsay hearing” refer to the same proceeding — both are names used interchangeably for the hearing conducted under I.C. 35-37-4-6. There is essentially no substantive legal distinction between the two terms; they both describe the statutory mechanism governing the admissibility of out-of-court statements by children and certain other vulnerable individuals in criminal proceedings. See, e.g., L.H. v. State, 878 N.E.2d 425, 428 (Ind. 2007) (where the court referred to this statute as the “protected person” or “child hearsay” statute).

Procedurally, I.C. 35-37-4-6 requires the following steps: First, the defendant must receive notice of the hearing and notice of the defendant’s right to be present at least ten days before trial. Second, the court must conduct the hearing outside the presence of the jury. Third, the protected person must attend the hearing either in person or by closed circuit television testimony. At this hearing, the court determines whether the time, content, and circumstances of the statement or videotape provide sufficient indications of reliability. Factors considered in the reliability determination include the time and circumstances of the statement, whether there was a significant opportunity for coaching, the nature of the questioning, whether there was a motive to fabricate, the use of age-appropriate terminology, spontaneity, and repetition. Setlak v. State, 234 N.E.3d 215, 220(Ind. 2024).

The protected person must either testify at the trial or be available for cross-examination when the statement or videotape was made. If the protected person is unavailable to testify at trial for reasons including serious emotional distress such that the protected person cannot reasonably communicate, medical reasons, or other incapacity, the statement or videotape may only be admitted if the protected person was available for cross-examination at the protected person hearing or when the statement or videotape was made.

If a statement or videotape is admitted into evidence, the defendant may introduce a transcript or videotape of the hearing into evidence at trial. In addition, if admitted, the court shall instruct the jury that they are to determine the weight and credit to be given the statement or videotape and that, in making that determination, they must consider the mental and physical age of the person making the statement or videotape, the nature of the statement or videotape, and the circumstances under which the statement or videotape was made.

Comparison Chart