Section 23.85 Child Witness

• Library: Criminal Practice 2012 Supp

O. (§23.85) Child Witness

Section 491.075, RSMo Supp. 2004, which allows admission as substantive evidence of extrajudicial statements of a victim/witness under the age of 14 in a prosecution commenced under Chapter 565, 566, or 568, RSMo, requires the victim/witness to testify unless the child is unavailable as a witness or if the court finds that the significant emotional or psychological trauma that would result from testifying in the presence of the defendant makes the child unavailable as a witness. The “unavailability” provision found in § 491.075.1(2)(b) has been restricted to circumstances in which a child/witness is either physically unavailable to testify at trial or is deemed unavailable because of lack of responsiveness on the witness stand. See, e.g., State v. Wideman, 940 S.W.2d 18, 20 (Mo. App. W.D. 1997).

A child’s out-of-court statement that does not fall within a firmly rooted hearsay exception is presumed inadmissible absent a showing that the circumstances surrounding the statement provide a sound basis for rebutting this presumption. State v. Jankiewicz, 831 S.W.2d 195, 198–99 (Mo...