Legal Definitions - tender-years hearsay exception

The tender-years hearsay exception is a specific rule in evidence law that allows certain out-of-court statements made by very young children to be admitted as evidence in court, even though they would ordinarily be considered inadmissible hearsay.

To understand this exception, it's helpful to first understand hearsay. Hearsay generally refers to a statement made outside of court that is offered in court to prove the truth of the matter asserted. The general rule against hearsay exists because the person who made the statement cannot be cross-examined in court, which raises concerns about the statement's reliability and the opposing party's ability to challenge it.

However, courts recognize that young children, often referred to as being of "tender years," may have significant difficulty testifying directly in court. This difficulty can stem from their age, developmental stage, emotional vulnerability, or the trauma associated with the events they witnessed or experienced. The tender-years hearsay exception is designed to allow important information from these children to be presented in court, particularly in sensitive cases such as child abuse, neglect, or other crimes where a child is a victim or witness.

For a statement to be admitted under this exception, states typically have specific statutes or judicial precedents that outline strict conditions. These conditions often include factors that indicate the statement's reliability, such as the context in which it was made, the child's age, the consistency of the statement, and sometimes require corroborating evidence or advance notice to the opposing party. The goal is to balance the need to protect children and ensure justice with the defendant's constitutional right to a fair trial.

Here are a few examples illustrating how the tender-years hearsay exception might apply:

• Child Abuse Disclosure: A 4-year-old girl tells her daycare teacher that her father touched her "private parts" in a way that made her feel scared. The teacher immediately reports this to child protective services. In a subsequent criminal trial against the father, if the child is deemed too young or too traumatized to testify effectively in court, her statement to the daycare teacher might be admitted as evidence under the tender-years hearsay exception, provided the court finds it reliable and meets other statutory requirements.

  This example demonstrates the exception because the child's out-of-court statement (to the teacher) about a sensitive event is admitted into court as evidence, bypassing the usual hearsay rule due to the child's "tender years" and the nature of the alleged crime.

• Witnessing an Accident: A 6-year-old boy is playing in his front yard and sees a car run a stop sign and collide with another vehicle. Immediately after the crash, he runs inside and tells his mother, "The blue car didn't stop at the red sign!" In a civil lawsuit for damages resulting from the accident, if the child is later unable to clearly recall or articulate these details in court due to the passage of time or the intimidating court environment, his spontaneous statement to his mother might be admitted as evidence under this exception.

  This illustrates the exception by allowing the child's immediate, out-of-court description of a critical event to be presented in court, acknowledging the difficulty a young child might have providing direct testimony.

• Description of an Intruder: A 5-year-old girl is home with her older sister when an unknown person briefly enters their house through an unlocked door before quickly leaving. Frightened, the girl immediately tells her sister, "A man with a red hat and a big beard came inside!" If the police investigate a potential home invasion, and the young girl is too scared or confused to testify in court about the intruder's appearance, her statement to her sister could potentially be admitted under the tender-years hearsay exception to help identify the suspect.

  This example shows the exception being used to introduce a young child's description of a perpetrator, recognizing that the child's direct testimony might be compromised by fear or developmental limitations.