11.4Admissibility of Child’s Statement

MCR 3.972(C)(2) governs the admissibility of a child’s statement:

“Any statement made by a child under 10 years of age or an incapacitated individual under 18 years of age with a developmental disability as defined in [MCL 330.1100a(27)]^[1] regarding an act of child abuse,^[2] child neglect,^[3] confirmed sexual abuse,^[4] or confirmed sexual exploitation,^[5] as defined in MCL 722.622(g), (k), (q), or (r), performed with or on the child by another person may be admitted into evidence through the testimony of a person who heard the child make the statement as provided in this subrule.^[6]

      (a)    A statement describing such conduct may be admitted regardless of whether the child is available to testify or not, and is substantive evidence of the act or omission if the court has found, in a hearing held before trial, that the circumstances surrounding the giving of the statement provide adequate indicia of trustworthiness. This statement may be received by the court in lieu of or in addition to the child’s testimony.

      (b)    If the child has testified, a statement denying such conduct may be used for impeachment purposes as permitted by the rules of evidence.

      (c)    If the child has not testified, a statement denying such conduct may be admitted to impeach a statement admitted under subrule (2)(a) if the court has found, in a hearing held before trial, that the circumstances surrounding the giving of the statement denying the conduct provide adequate indicia of trustworthiness.”

A.Notice of Intent

A proponent of a statement under MCR 3.972(C) must notify all parties of the intent to introduce the statement at trial. MCR 3.922(F).

Within 21 days after the parties received notice of a trial date (but no later than seven days before trial), the proponent must file with the court and serve all parties the written notice of intent. MCR 3.922(F)(1). The written notice of intent must indicate that the proponent intends to “admit out-of-court hearsay statements under MCR 3.972(C)(2), including the identity of the persons to whom a statement was made, the circumstances leading to the statement, and the statement to be admitted.” MCR 3.922(F)(1)(d).

Within seven days of being notified of the proponent’s intent (but no later than two days before trial) to use a child’s statement, the nonproponent parties must provide written notice to the court of the intent to offer rebuttal testimony or evidence opposing the request. The notice must include the identity of any witnesses to be called. MCR 3.922(F)(2).

“The court may shorten the time periods provided in [MCR 3.922](F) if good cause is shown.” MCR 3.922(F)(3).

B.Testifying to Child’s Statement

“For purposes of a trial with respect to adjudication, a statement by a child under the age of 10 concerning and describing an act of sexual abuse[, child abuse, child neglect, or sexual exploitation] performed on the child by another person may be admitted into evidence ‘through the testimony of a person who heard the child make the statement,’ regardless of the child’s availability, but only if the court finds at a hearing before trial ‘that the circumstances surrounding the giving of the statement provide adequate indicia of trustworthiness.’” In re Martin, 316 Mich App 73, 80 (2016), quoting MCR 3.972(A)(2) (emphasis added).

“[A] videorecorded statement taken in compliance with MCL 712A.17b [(listing statutory requirements for videorecording a child’s statement)⁷] must be admitted at a [pretrial] tender-years hearing and can be used by the trial court to assess whether a proposed witness who took the videorecorded statement should be permitted to testify at trial about the statement, i.e., to assess whether ‘the circumstances surrounding the giving of the statement provide[d] adequate indicia of trustworthiness,’ MCR 3.972(C)(2)(a).” In re Martin, 316 Mich App at 83. In In re Martin, 316 Mich App at 83-84, the Court of Appeals reversed the trial court’s order of adjudication with respect to the respondent-father and the order terminating his parental rights, and “remand[ed] for new adjudication proceedings in compliance with MCR 3.972(C)(2)(a) and other applicable law” where “the forensic interviewer [whose recorded questioning of the child raised claims by the child of sexual abuse by the respondent-father] did not testify at trial with respect to the child’s statements made in the interview[, and t]he trial court did not employ the [videorecorded statement] to determine whether the forensic interviewer should be allowed to testify under MCR 3.972(C)(2)(a)[, but the trial court instead erroneously] . . . used the [videorecorded statement], in and of itself, to adjudicate [the] respondent-father.”

C.Totality of Circumstances Surrounding Child’s Statement

The court must examine the totality of the circumstances surrounding the making of a child’s statement to determine whether there are adequate indicia of trustworthiness. In re Archer, 277 Mich App 71, 82 (2007). Such circumstances include:

•spontaneity of the statement,

•consistent repetition of the statement,

•the child’s mental state,

•the child’s use of terminology unexpected by a child of similar age, and

•lack of a motive to fabricate. In re Archer, 277 Mich App at 82.

In In re Archer, 277 Mich App at 82-83, the minor children’s out-of-court video statements were properly admitted at trial through the testimony of a forensic interviewer under MCR 3.972(C)(2)(a) because the totality of the circumstances provided adequate indicia of trustworthiness when the forensic interviewer was trained to conduct interviews of abused children, the forensic interviewer followed the state’s forensic interviewing protocol when interviewing the children, the children used age-appropriate language in describing the abuse, there was no evidence of the children fabricating the stories or having a motive to lie, and there was photographic evidence to corroborate one of the children’s description of the abuse.