Delaware Code

11 Del. C. § 3513 (2026)

Hearsay exception for child victim’s or witness’s out-of-court statement of abuse

✓ current as of May 2026

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(a) An out-of-court statement made by a child victim or witness who is under 11 years of age at the time of the proceeding concerning an act that is a material element of the offense relating to sexual abuse, physical injury, serious physical injury, death, abuse or neglect as described in any felony delineated in subpart A, B or D of subchapter II of Chapter 5 of this title, or in any of the felonies delineated in § 782, § 783, § 783A, § 787, § 1100A, § 1102, § 1108, § 1109, § 1111, § 1112A, § 1112B, § 1335(a)(6), § 1335(a)(7), § 1353(2), or § 1361(b) of this title or in any attempt to commit any felony delineated in this paragraph that is not otherwise admissible in evidence is admissible in any judicial proceeding if the requirements of subsections (b) through (f) of this section are met.

(b) An out-of-court statement may be admitted as provided in subsection (a) of this section if:

(1) The child is present and the child’s testimony touches upon the event and is subject to cross-examination rendering such prior statement admissible under § 3507 of this title; or

(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 child’s absence from the jurisdiction;

3. The child’s total failure of memory;

4. The child’s persistent refusal to testify despite judicial requests to do so;

5. The child’s physical or mental disability;

6. The existence of a privilege involving the child;

7. The child’s incompetency, including the child’s inability to communicate about the offense because of fear or a similar reason; or

8. Substantial likelihood that the child would suffer severe emotional trauma from testifying at the proceeding or by means of a videotaped deposition or closed-circuit television; and

b. The child’s out-of-court statement is shown to possess particularized guarantees of trustworthiness.

(d) The proponent of the statement must inform the adverse party of the proponent’s intention to offer the statement and the content of the statement sufficiently in advance of the proceeding to provide the adverse party with a fair opportunity to prepare a response to the statement before the proceeding at which it is offered.

(e) In determining whether a statement possesses particularized guarantees of trustworthiness under paragraph (b)(2) of this section, the court may consider, but is not limited to, the following factors:

(1) The child’s personal knowledge of the event;

(2) The age and maturity of the child;

(3) Certainty that the statement was made, including the credibility of the person testifying about the statement;

(4) Any apparent motive the child may have to falsify or distort the event, including bias, corruption or coercion;

(5) The timing of the child’s statement;

(6) Whether more than 1 person heard the statement;

(7) Whether the child was suffering pain or distress when making the statement;

(8) The nature and duration of any alleged abuse;

(9) Whether the child’s young age makes it unlikely that the child fabricated a statement that represents a graphic, detailed account beyond the child’s knowledge and experience;

(10) Whether the statement has a “ring of verity,” has internal consistency or coherence and uses terminology appropriate to the child’s age;

(11) Whether the statement is spontaneous or directly responsive to questions;

(12) Whether the statement is suggestive due to improperly leading questions;

(13) Whether extrinsic evidence exists to show the defendant’s opportunity to commit the act complained of in the child’s statement.

(f) The court shall support with findings on the record any rulings pertaining to the child’s unavailability and the trustworthiness of the out-of-court statement.

68 Del. Laws, c. 362, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 467, § 9; 72 Del. Laws, c. 212, §§ 1-3; 80 Del. Laws, c. 175, § 8;

Notes of Decisions

Cited in 6 cases (4 in the last 5 years), 2010–2026 · leading case: Russell v. State, 5 A.3d 622 (Del. 2010).

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Russell v. State, 5 A.3d 622 (Del. 2010). “§ 3507 and 11 Del. C. § 3513(b)(1) both require a party to establish an adequate foundation before a pretrial out of court statement of a trial witness can be admitted into evidence.”

McCrary v. State (Del. 2023). · cites it 13× “made to her father and to the CAC forensic interviewer under 11 Del. C. § 3513 violated his right to confrontation under the United States Constitution.”

Husbands v. Delaware Dep't of Educ. (Del. Super. Ct. 2019). · cites it 3× “The PSB considered the DOE’s argument that the children’s prior sworn testimony constituted out-of-court statements of abuse under 11 Del. C. § 3513. The PSB noted that under § 3513(b)(2), an out-of- court statement may be admitted if the child is found to be “unavailable” to…”

State v. Roberson (Del. Super. Ct. 2024). · cites it 3× “11 Del. C. § 3513 provides that prior, out of court statements by a child victim under 11 years of age may be admitted at trial, and without the opportunity for cross examination, provided at least one of 8 conditions are met.”

Roberson v. State (Del. 2026). · cites it 3× “18 In McGriff, our Court upheld the constitutionality under the federal and state constitutions of a related statute – 11 Del. C. § 3513 – that addresses a hearsay exception for child victim’s or witness’s out-of-court statements of abuse.”

State v. Massey (Del. Super. Ct. 2023). “In providing guidance for the new trial, the Supreme Court stated, "It would have been appropriate for the trial judge also to have required the prosecutor to demonstrate a substantial need for the additional special accommodation of a teddy bear.”

— 11 Del. C. § 3513(a) — 1 case

McCrary v. State (Del. 2023). “made to her father and to the CAC forensic interviewer under 11 Del. C. § 3513 violated his right to confrontation under the United States Constitution.”

— 11 Del. C. § 3513(b)(1) — 1 case

— 11 Del. C. § 3513(b)(2) — 2 cases

McCrary v. State (Del. 2023). “made to her father and to the CAC forensic interviewer under 11 Del. C. § 3513 violated his right to confrontation under the United States Constitution.”

Roberson v. State (Del. 2026). “18 In McGriff, our Court upheld the constitutionality under the federal and state constitutions of a related statute – 11 Del. C. § 3513 – that addresses a hearsay exception for child victim’s or witness’s out-of-court statements of abuse.”

— 11 Del. C. § 3513(b)(2a)(7) — 1 case

State v. Roberson (Del. Super. Ct. 2024). “11 Del. C. § 3513 provides that prior, out of court statements by a child victim under 11 years of age may be admitted at trial, and without the opportunity for cross examination, provided at least one of 8 conditions are met.”

— 11 Del. C. § 3513(b)(2a)(8) — 1 case

— 11 Del. C. § 3513(c) — 1 case

Husbands v. Delaware Dep't of Educ. (Del. Super. Ct. 2019). “The PSB considered the DOE’s argument that the children’s prior sworn testimony constituted out-of-court statements of abuse under 11 Del. C. § 3513. The PSB noted that under § 3513(b)(2), an out-of- court statement may be admitted if the child is found to be “unavailable” to…”

— 11 Del. C. § 3513(e) — 1 case

McCrary v. State (Del. 2023). “made to her father and to the CAC forensic interviewer under 11 Del. C. § 3513 violated his right to confrontation under the United States Constitution.”

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