A Prosecutor's Tool in Child and Protected Person Victim Cases
| Jurisdiction | Alabama,United States |
| Pages | 0198 |
| Citation | Vol. 84 No. 4 Pg. 0198 |
| Publication year | 2023 |
When a prosecutor receives a case file from a law enforcement agency, he knows that for a successful prosecution he must be able to prove the elements of his case with witness or documentary evidence.
Because most crimes against a child or a protected person - both terms are defined in Ala. Code § 15-25-1 (1975) - are not committed in front of someone else, most of the evidence has to come from the victim. Therefore, a prosecutor needs to use every tool he has to get the child's or protected person's story before a jury in the most convincing way possible.
One such tool is the statute that allows the use of an out-of-court statement.1
And to use it effectively, it is important to know and understand both the 2016 and the 2022 amendments to that statute.
Section 15-25-31
Ala. Code § 15-25-31 (1975) provides: "[a]n out-of-court statement made by a child under 12 years of age at the time the statement is made, or by a protected person as defined in Section 15-25-1, concerning an act that is a material element of any crime involving a physical offense, sexual offense, or violent offense, as defined in Section 15-25-39, which statement is not otherwise admissible in evidence, is admissible in evidence in criminal proceedings, if the requirements of Section 15-25-32 are met."2 This statute authorizes the admission into evidence in a criminal trial of what would otherwise be inadmissible hearsay from a child under 12 years of age or a protected person.
There are three important points in this statute.
First, the child witness must have been "under 12 years of age at the time the statement is made." When the statute first authorized the admission of a child's out-of-court statement, the child had to be under the age of 12 at the time of the proceeding.
The statute was amended in 2016 to allow the out-of-court statement of a child to be under the age of 12 "at the time the statement is made."3 This is a significant change because it may take several years before a case actually goes to trial. Under this amendment, the statement is, in effect, locked in place at the time it is made regardless of when the case proceeds to trial.
Second, the out-of-court statement by the child under 12 or a protected person must "concern [ ] an act that is a material element of any crime involving a physical offense, sexual offense, or violent offense as defined in Section 15-25-39." The 2022 amendment significantly increased the kinds of criminal offenses to which this exception applies. Prior to the amendment, § 15-25-39 limited the kind of case such an out-of-court statement was admissible to certain named offenses involving "a child physical offense, sexual offense, and exploitation[,] or violent offense."
Section 15-25-39 now provides:
"For purposes of this article, 'a physical offense, sexual offense, or violent offense' is defined to include the following crimes, when one or more of the victims is a child under 12 years of age or is a protected person as provided in Section 15-25-1:
(1) A sex offense pursuant to Section 15-20A-5.
(2) A violent offense pursuant to Section 12-25-32.
(3) Aggravated child abuse as provided in Section 26-15-3.1.
(4) Assault in any degree.
(5) Any offense involving domestic violence, elder abuse, or a violation of a protection order.
(6) Any attempt to commit any of the offenses listed in subdivisions (1) to (5), inclusive."
This expansion of criminal offenses will allow prosecutors to pursue more cases where there is a hesitant child witness or protected person or when the person has difficulty in communicating.
Section 15-25-32
The third important point is that the requirements of Section 15-25-32 must be met before the out-of-court statement is admissible. This is probably the most significant change brought about by the 2022 amendment. Prior to the amendment, § 15-25-32 read as follows:
"An out-of-court statement may be admitted as provided in Section 15-25-31,...
"(1) The child testifies at the proceeding, testifies by means of video tape deposition as provided by Section 15-25-2, or testifies by means of closed circuit television as is
To continue reading
Request your trial