Rule 804a - Hearsay Exception; Putative Victim Age 12 or Under; Person with a Mental Illness or An Intellectual or Developmental Disability(a) Statements by a person who is a child 12 years of age or under or who is a person with a mental illness as defined in 18 V.S.A. § 7101(14) or intellectual or developmental disability as defined in 1 V.S.A. §§ 146, 148 at the time the statements were made are not excluded by the hearsay rule if the court specifically finds at the time they are offered that: (1) the statements are offered in a civil, criminal, or administrative proceeding in which the child or person with a mental illness or intellectual or developmental disability is a putative victim of sexual assault under 13 V.S.A. § 3252, aggravated sexual assault under 13 V.S.A. § 3253, aggravated sexual assault of a child under 13 V.S.A. § 3253a, lewd or lascivious conduct under 13 V.S.A. § 2601, lewd or lascivious conduct with a child under 13 V.S.A. § 2602, incest under 13 V.S.A. § 205, abuse, neglect, or exploitation under 33 V.S.A. § 6913, sexual abuse of a vulnerable adult under 13 V.S.A. § 1379, or wrongful sexual activity and the statements concern the alleged crime or the wrongful sexual activity; or the statements are offered in a juvenile proceeding under chapter 52 of Title 33 involving a delinquent act alleged to have been committed against a child 13 years of age or under or a person with a mental illness or intellectual or developmental disability if the delinquent act would be an offense listed herein if committed by an adult and the statements concern the alleged delinquent act; or the child is the subject of a petition alleging that the child is in need of care or supervision under chapter 53 of Title 33, and the statement relates to the sexual abuse of the child; (2) the statements were not taken in preparation for a legal proceeding and, if a criminal or delinquency proceeding has been initiated, the statements were made prior to the defendant's initial appearance before a judicial officer under Rule 5 of the Vermont Rules of Criminal Procedure; (3) the child or person with a mental illness or intellectual or developmental disability is available to testify in court or under Rule 807; and (4) the time, content, and circumstances of the statements provide substantial indicia of trustworthiness.(b) Upon motion of either party in a criminal or delinquency proceeding, the court shall require the child or person with a mental illness or intellectual or developmental disability to testify for the state. Added 1985, No. 82, § 2, eff. 7/1/1985; amended Oct. 30, 1986, eff. 3/1/1987; 1993, No. 100, § 11; Oct. 23, 2002, eff. 1/1/2003; 2009, No. 1, § 28, eff. 7/1/2009; No. 58, § 22, eff. 7/2/2009; amended January 6, 2020, effective 3/9/2020.Reporter's Notes-2020 Amendment
Rule 804a is amended to reflect the Legislature's efforts to eliminate offensive language, and to make this rule's language more consistent with the language of Rule 807. Note, however, that Rule 804a maintains the definition of "mental illness" provided in 18 V.S.A. § 7101(14), rather than using the term "psychiatric disability" provided by 1 V.S.A. § 147. The latter is a broader term that encompasses a wider arc of impairments. Its use here would cause the expansion of a rule that was originally intended to be applied narrowly.