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By William A. Lisenby, Jr.

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.[i]

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.”[ii] 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.”[iii] 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 provided in Section 15-25-3, and at the time of such testimony is subject to cross-examination about the out-of-court statements.

(2) a. The child is found by the court to be unavailable to testify on any of these grounds:

1. The child’s death;
2. The court finds that there are reasonable grounds to believe that the defendant or someone acting on behalf of the defendant has intentionally removed the child from the jurisdiction of the court;
3. The child’s total failure of memory;
4. The child’s physical or mental disability;
5. The child’s incompetency, including the child’s inability to communicate about the offense because of fear or a similar reason; or,
6. Substantial likelihood that the child would suffer severe emotional trauma from testifying at the proceeding or by means of closed-circuit television; and,
7. The child’s out-of-court statement is shown to the reasonable satisfaction of the court to possess particularized guarantees of trustworthiness.”

In Ex parte B. B. S., the Alabama Supreme Court interpreted this statute to require proof of trustworthiness of the out-of-court statement regardless of whether the child testified or not: “In the Act [Ala. Acts 1989, No. 89-876], the ‘trustworthiness’ requirement appears to apply to a hearsay statement, whether the child is available to testify or not….”[iv] The court went on to hold: “Although the question is not without difficulty, we think the Confrontation Clause, U.S. Const. amend. VI, requires that hearsay testimony should not be admitted without indicia of reliability, even if the declarant testifies.” Id. at 714.

The B. B. S. opinion pre-dated the United States Supreme Court opinion in Crawford vs. Washington[v] which held that the Confrontation Clause should be applied to testimonial statements without regard to whether they possessed particularized guarantees of trustworthiness. (“Although the results of our decisions have generally been faithful to the original meaning of the Confrontation Clause, the same cannot be said of our rationales. Roberts[[vi]] conditions the admissibility of all hearsay evidence on whether it falls under a ‘firmly rooted hearsay exception’ or bears ‘particularized guarantees of trustworthiness.’ 448 U.S., at 66, 100 S. Ct. 2531. This test departs from the historical principles identified above in two respects….”)[vii] But, the court went on to say that:

“Finally, we reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. See California v. Green, 399 U. S. 149, 162, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970). It is therefore irrelevant that the reliability of some out-of-court statements ‘“cannot be replicated, even if the declarant testifies to the same matters in court.”’ Post, at 1377 (quoting United States v. Inadi, 475 U. S. 387, 395, 106 S. Ct. 1121, 89 L. Ed. 2d 390 (1986)). The clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it. (The clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. See Tennessee v. Street, 471 U. S. 409, 414, 105 S. Ct. 2078, 85 L. Ed. 2d 425 (1985).)[viii]

Today, § 15-25-32 provides:

“An out-of-court statement may be admitted as provided in Section 15-25-31, if either of the following occur:

(1) The witness testifies at the proceeding, testifies by means of video deposition as provided by Section 15-25-2, or testifies by means of closed circuit television as is provided in Section 15-25-3, and at the time of the testimony is subject to cross-examination about the out-of-court statements.

(2) The court finds that the witness’s out-of-court statement is shown to the reasonable satisfaction of the court to possess particularized guarantees of trustworthiness and there are reasonable grounds to believe that the defendant or someone acting on behalf of the defendant has intentionally removed the witness from the jurisdiction of the court or that the defendant engaged in wrongdoing that was intended to, and did, procure the unavailability of the witness.” (Emphasis added.)

Subsection (1), with only a few minor word changes, is substantially similar to its predecessor, i.e., if the witness testifies and is subject to cross examination, then the out-of-court statement is admissible. And because the witness is testifying and subject to cross examination, there does not appear to be any Confrontation Clause issues.[ix] However, subsection (2) is almost completely rewritten. It eliminates the various reasons a child may be unavailable and only requires “particularized guarantees of trustworthiness” in instances when a witness is unavailable due to actions by a defendant or someone acting on his behalf.

The mechanics of admissibility

There are four other statutes that require compliance for the admissibility of the out-of-court statement.

Section 15-25-35 requires that the “proponent of the statement must inform the adverse party of the opponent’s intention to offer the statement and the content of the statement sufficiently in advance of the proceeding to provide the defendant with a fair opportunity to prepare a response to the statement before the proceeding at which it is offered.” A failure to give the proper notice or to give it in a timely fashion may prevent the admission of highly relevant testimony.[x]

Section 15-25-34 requires that “[b]efore a statement may be admitted pursuant to this article on the grounds that the declarant i

[i] Although this article specifically addresses the use of child or protected person out-of-court statements in a criminal prosecution if all the requirements are met, such statements may be used in other proceedings. See, e.g., Smallwood v. State Dep’t of Hum. Res., 716 So. 2d 684, 685 (Ala. Civ. App. 1998) (although it held that the out-of-court statement was impermissibly admitted, the court did discuss the application of the statute and rules promulgated by the department of human resources in “a combined child abuse/prerevocation of license hearing….”); State Dep’t of Hum. Res. v. Gibert, 681 So. 2d 560, 561 (Ala. Civ. App. 1995), writ denied sub nom. Ex parte Gibert, 681 So. 2d 564 (Ala. 1996) (“These appeals are from two judgments of the circuit court, one setting aside the decision of an administrative hearing officer that placed an alleged child molester on the statewide central registry for reports of child abuse and neglect, and another setting aside the decision of an administrative hearing officer that revoked the child care facility license of the alleged molester’s wife.”)

[ii] The legislature amended this statute in 2022, effective July 1, 2022, to allow the admission of an out-of-court statement from a “protected person as defined in Section 15-25-1” in certain criminal prosecutions.

[iii] See, Williams v. State, No. CR-2022-0543, 2023 WL 1935283, at *9 (Ala. Crim. App. Feb. 10, 2023) (discussing the amendment and holding, per Kellum, J. and two judges concurring in the result, that “[t]he change to § 15-25-31, Ala. Code 1975, was procedural in nature and not a substantive change in the law.”)

[iv] Ex parte B. B. S., 647 So. 2d 709 (Ala. 1994).

[v] 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

[vi] Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980).

[vii] Crawford, 541 U.S. at 60.

[viii] Crawford, 541 U.S. at 59, fn. 9.

[ix] Crawford, supra; See also, D. L. R. v. State, 188 So. 3d 720, 726-27 (Ala. Crim. App. 2015) (“K. R. personally appeared in court and was subjected to direct questions from defense counsel. No limits or restrictions were placed on defense counsel’s ability to question K. R. as to her out-of-court statements. Although K. R.’s answers to defense counsel’s questions might have been unsatisfactory to him, K. R. did not refuse to answer his questions. The fact that K. R. testified that she could not remember her out-of-court statements does not mean that defense counsel did not have the opportunity to cross-examine her or that she was not ‘subject to cross-examination.” Therefore, the trial court did not violate the Confrontation Clause of the Sixth Amendment or § 15-25-32(1), Ala. Code 1975, by allowing K. R.’s out-of-court statements into evidence.”)

[x] See, e.g., Richerson v. State, 668 So. 2d 130, 136 (Ala. Crim. App. 1995) (“The trial court ruled that any statements offered by the prosecution that were not presented at the original hearing and which the appellant had not been given notice as required by § 15-25-35 were subject to exclusion upon the appellant’s objection.”)