Among the legislation currently before the Pennsylvania General Assembly is House Bill 156, which seeks to extend the state’s Tender Years Hearsay Act to minors up to age sixteen. As it stands, the legislation only provides for the admissibility of out-of-court statements made by minors up to age twelve.

Unamended, the law, § 5985.1 of Title 42 of the Pennsylvania Consolidated Statutes, reads:

An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger…not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if: (i) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability…

Unlike similar laws in other states, the Pennsylvania statute admits a child’s hearsay in a range of cases from homicide to burglary, in addition to the sexual crimes that are the more usual object of such legislation.

Also worth noting is that the statute doesn’t automatically exempt the child from appearing in court. Indeed, the child’s testimony during court proceedings is, perhaps a bit counterintuitively, the easiest way to open the door to admitting previous hearsay testimony from the child. The alternative of establishing that the child is “unavailable as a witness” requires investigation by the court:

In order to make a finding…that the child is unavailable as a witness, the court must determine…that testimony by the child as a witness will result in the child suffering serious emotional distress that would substantially impair the child's ability to reasonably communicate.

The court may in such a case examine the child (in or out of the courtroom) or hear testimony by a parent or other person who has knowledge of the child. Moreover, “if the court observes or questions the child, the court shall not permit the defendant to be present.”

The idea of keeping the child-witness away from the defendant lies at the heart of the concept of allowing a child’s hearsay to be admissible, as the court is concerned that confronting an alleged abuser may be unnecessarily traumatic to the child. This is precisely how Representative Clint Owlitt, in a memorandum dated December 2, 2020, presented his rationale for reintroducing the legislation in the current session after it passed the House but failed to become law in 2019-2020:

In my district, I have been approached [by] family members of young children who have been victimized by sexual violence and who have been informed by prosecutors that the protections afforded under the Tender Years Hearsay Act do not apply to them because of their age. Sadly, these children have been presented with the seemingly impossible choice of either testifying in an open courtroom before the offender and a group of strangers or watching the sexually violent offender walk free.

He goes on to argue:

This fear of testifying is one of the primary reasons the great majority of sexual assaults go unreported. The child victims in sexual assault cases that do testify are routinely subjected to long periods of cross examination and are often forced to repeatedly describe the explicit details underlying any assault in front of a jury, the media and the offender.

While extending the Tender Years Hearsay Act to include teenagers is stretching the concept of “tender years” a bit far, one can see how it might be of service to young persons trying to bring an abuser to justice. On the other hand – and there is a substantial other hand – there are reasons behind our system of jurisprudence’s general aversion to hearsay, reasons that go back to the Sixth Amendment:

In all criminal prosecutions the accused shall enjoy the right of a speedy and public trial, by an impartial jury…and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

The right to confront one’s accusers is a key aspect of the judicial system set up by the Constitution and precludes secret denunciations and similar practices that stand in the way of clear justice in our American sense of the term. For this reason Representative Greg Vitali spoke out against the bill’s previous incarnation when it came to the House floor for a vote in 2020:

We are all cognitive [sic] of younger children – I guess the current rule is 12 – but now we are talking about people who can drive; not so tender...We have these safeguards, things like the right to confront your accuser, statutes of limitations, proof beyond a reasonable doubt, because it is very important that innocent people are not found guilty, and we understand, when we put these safeguards in, there may be a guilty person who goes free.

He continued by pointing out that this bill is opposed by the American Civil Liberties Union, this is opposed by the Association of Criminal Defense Lawyers, and for good reason. This may sound good, but it compromises a fundamental principle in our judicial system, and I ask for a "no" vote.

“This may sound good” is perhaps a good summation of the pitfalls of extending the Tender Years Hearsay Act to teenagers.

However good that argument, the 2021 version of the bill passed the House by an overwhelming vote of 173-29, thus with a considerable number in support of the measure, whose time has apparently come, at least in Pennsylvania.

Following its passage by the House, the bill has been referred to the Senate Judiciary Committee, where it awaits consideration.