6.9​Tender-Years Exception

MRE 803A codifies the Michigan common-law hearsay exception known as the “tender-years” rule.²⁷ Although a prosecutor need not corroborate the victim’s testimony under the CSC Act, MRE 803A permits corroborative testimony in cases where the sexual assault victim is under age 10 at the time the statement was made. “‘[T]he tender-years rule prefers a child’s first statement over later statements’ because, ‘[a]s time goes on, a child’s perceptions become more and more influenced by the reactions of the adults with whom the child speaks.’” People v Douglas, 496 Mich 557, 577 (2014), quoting People v Katt (Katt II), 468 Mich 272, 296 (2003) (alterations in original).

In criminal and juvenile delinquency proceedings only,²⁸ a child’s statement regarding certain sexual acts involving the child is admissible, provided it corroborates the declarant’s testimony during the same proceeding and:

“(1) the declarant was under the age of ten when the statement was made;

(2) the statement is shown to have been spontaneous and without indication of manufacture;

(3) either the declarant made the statement immediately after the incident or any delay is excusable as having been caused by fear or other equally effective circumstance;

(4) the statement is introduced through the testimony of someone other than the declarant; and

(5) the proponent of the statement makes known to the adverse party the intent to offer it and its particulars sufficiently before the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it.” MRE 803A(b).

“If the declarant made more than one corroborative statement about the incident, only the first is admissible under [MRE 803A].” MRE 803A(b).

“MRE 803A . . . permits only the first corroborative statement as to each ‘incident that included a sexual act performed with or on the declarant by the defendant.’ Though the [rule] does not define the term ‘incident,’ it is commonly understood to mean ‘an occurrence or event,’ or ‘a distinct piece of action, as in a story.’” Douglas, 496 Mich at 575 (citation omitted). Consequently, when a child discloses two separate incidents of abuse in the same interview and the child’s statement about the first incident is inadmissible under MRE 803A because it was not the child’s first corroborative statement about the incident, that inadmissible statement does not become admissible simply because immediately following the inadmissible statement, the child disclosed a second incident and that disclosure was the first corroborative statement of the second incident. Douglas, 496 Mich at 575-576 (also holding that the evidence was inadmissible under the residual hearsay exception in MRE 803(24)²⁹ and ultimately concluding that the evidentiary errors required reversal and a new trial).

“MRE 803A generally requires the declarant-victim to initiate the subject of sexual abuse.” People v Gursky, 486 Mich 596, 613 (2010). Admitting a child’s statements given as answers to an adult’s questioning is not necessarily “incompatible with a ruling that the child produced a spontaneous statement.” Id. at 614. Questions asked when talking to a child about alleged sexual abuse must be open-ended and nonleading “in order for the statement to be considered the creation of the child.” Id. at 614, 626.

In Gursky, 486 Mich at 598, the child’s hearsay statements were made in response to questioning by her mother’s friend and used at trial to corroborate the child’s testimony. Id. at 598, 600. The Michigan Supreme Court held that “the child’s statements were not ‘spontaneous’ and . . . should not have been admitted under the limited ‘tender years’ hearsay exception created by MRE 803A.” Gursky, 486 Mich at 598-599.³⁰ The Court explained:

“Trial courts [must] review the totality of the circumstances surrounding the statement in order to determine the issue of spontaneity. Even though courts should look at the surrounding circumstances and larger context in order to understand whether the statement was spontaneously made, . . . this review is not solely determinative of the question of admissibility. As MRE 803A requires, the statement must be ‘shown to have been spontaneous and without indication of manufacture.’ The language of MRE 803A(2) clearly demonstrates that spontaneity is an independent requirement of admissibility rather than one factor that weighs in favor of reliability or admissibility. Thus, even if, considering the totality of the circumstances, the trial court determines that a statement is spontaneous for the purposes of MRE 803A(2), it must nevertheless also conduct the separate analyses necessary to determine whether the statement meets the other independent requirements of MRE 803A.” Gursky, 486 Mich at 615-616.

In People v Dunham, 220 Mich App 268, 271-272 (1996), the Court of Appeals concluded that the victim’s statements were spontaneous and upheld the admission of testimony from a Friend of the Court mediator corroborating the six-year-old victim’s statements. According to the mediator, the victim’s statements were in response to open-ended questions typically asked of the children of divorcing parents. Id. at 272. Further, the eight- or nine-month delay in reporting the alleged sexual abuse was justified given the victim’s fear of the defendant. Id.

The Court of Appeals also concluded in Dunham, 220 Mich App at 272, that the defendant was not prejudiced by notice—one day before trial started—of the prosecutor’s intent to offer the testimony. Id. The defendant should have anticipated the testimony because the victim’s mother testified at the preliminary examination that she became aware of the abuse after the victim spoke with the mediator, and the mediator’s name appeared on the witness list for trial. Id. at 272-273.