§ 5985.1. Admissibility of certain statements.
(a) General rule.--
(1) An out-of-court statement made by a child victim or witness, who at the time the statement
was made was 16 years of age or younger, describing any of the offenses enumerated
in paragraph (2), 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;
and
(ii) the child either:
(A) testifies at the proceeding; or
(B) is unavailable as a witness.
(2) The following offenses under 18 Pa.C.S. (relating to crimes and offenses) shall apply
to paragraph (1):
Chapter 25 (relating to criminal homicide).
Chapter 27 (relating to assault).
Chapter 29 (relating to kidnapping).
Chapter 30 (relating to human trafficking).
Chapter 31 (relating to sexual offenses).
Chapter 35 (relating to burglary and other criminal intrusion).
Chapter 37 (relating to robbery).
Section 4302 (relating to incest).
Section 4304 (relating to endangering welfare of children), if the offense involved
sexual contact with the victim.
Section 6301(a)(1)(ii) (relating to corruption of minors).
Section 6312(b) (relating to sexual abuse of children).
Section 6318 (relating to unlawful contact with minor).
Section 6320 (relating to sexual exploitation of children).
(a.1) Emotional distress.--In order to make a finding under subsection (a)(1)(ii)(B) that the child is unavailable
as a witness, the court must determine, based on evidence presented to it, 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. In
making this determination, the court may do all of the following:
(1) Observe and question the child, either inside or outside the courtroom.
(2) Hear testimony of a parent or custodian or any other person, such as a person who
has dealt with the child in a medical or therapeutic setting.
(a.2) Counsel and confrontation.--If the court hears testimony in connection with making a finding under subsection
(a)(1)(ii)(B), all of the following apply:
(1) Except as provided in paragraph (2), the defendant, the attorney for the defendant
and the attorney for the Commonwealth or, in the case of a civil proceeding, the attorney
for the plaintiff has the right to be present.
(2) If the court observes or questions the child, the court shall not permit the defendant
to be present.
(b) Notice required.--A statement otherwise admissible under subsection (a) shall not be received into evidence
unless the proponent of the statement notifies the adverse party of the proponent's
intention to offer the statement and the particulars of the statement sufficiently
in advance of the proceeding at which the proponent intends to offer the statement
into evidence to provide the adverse party with a fair opportunity to prepare to meet
the statement.
(Dec. 22, 1989, P.L.730, No.100, eff. 60 days; Dec. 18, 1996, P.L.1077, No.161, eff.
60 days; Oct. 18, 2000, P.L.615, No.84, eff. imd.; July 15, 2004, P.L.736, No.87,
eff. imd.; June 28, 2019, P.L.231, No.31, eff. 60 days; June 30, 2021, P.L.172, No.29,
eff. 60 days)
2021 Amendment. Act 29 amended subsec. (a)(1) intro. par.
2019 Amendment. Act 31 amended subsecs. (a), (a.1) and (a.2).
Notes of Decisions
Cited in
126
cases (
44 in the last 5 years), 1990–2026 · leading case:
Commonwealth v. Strafford, 194 A.3d 168 (Pa. Super. Ct. 2018).
Commonwealth v. Strafford, 194 A.3d 168 (Pa. Super. Ct. 2018).
· cites it 10× “3 On March 18, 2015, the Commonwealth simultaneously lodged its Petition to Admit Out-of-Court Statements Under the "Tender Years Hearsay Exception", 42 Pa.C.S. § 5985.1 [ sic ], 4 as well as a Motion to Allow a Child Witness to Testify Under the Pennsylvania Uniform Child…”
Commonwealth v. Hanawalt, 615 A.2d 432 (Pa. Super. Ct. 1992).
· cites it 26× “[5] On March 1, 1991, the trial court denied Appellant's motion in limine and ruled that the Commonwealth would be allowed to introduce the hearsay statements of the child pursuant to 42 Pa.C.S. § 5985.1 (Purdon Supp.1992) (Tender years exception to the hearsay rule), infra.”
In the Int. of: D.C., Appeal of: D.C., 2021 Pa. Super. 179 (Pa. Super. Ct. 2021).
· cites it 6× “Appellant challenges the trial court’s application of the Tender Years Hearsay Act, 42 Pa.C.S. § 5985.1, and the sufficiency of the evidence.”
Commonwealth v. Barnett, 50 A.3d 176 (Pa. 2012).
· cites it 5× “Did the Trial Court err in admitting out-of-court statements of the ten-year-old and twelve-year-old sexual assault complainants under the Tender Years Act, 42 Pa.C.S. § 5985.1 where the time, content and circumstances of the statements did not provide sufficient indicia of…”
Idaho v. Wright, 497 U.S. 805 (1990).
· cites it 2× “460 (1989); 42 Pa. Cons. Stat. § 5985.1 (1989); S. D.”
Com. v. Luster, D., 234 A.3d 836 (Pa. Super. Ct. 2020).
· cites it 4× “-2- J-S21013-20 Tender Years Hearsay Act (“the Act”), 42 Pa.C.S. §5985.1(a). Id. at 9. During jury selection, the Commonwealth gave oral notice a second time.”
Commonwealth v. Shearer, 882 A.2d 462 (Pa. 2005).
· cites it 4× “[1] Prior to trial, on August 11, 2000, the Commonwealth filed a notice pursuant to the Tender Years Hearsay Act, 42 Pa.C.S. § 5985.1, [2] notifying the trial court and Appellee that it intended to introduce testimony from Complainant that had been videotaped by Butler County…”
Commonwealth v. Halsted, 666 A.2d 655 (Pa. 1995).
· cites it 12× “The Concurring and Dissenting Opinion would uphold Appellant's conviction on the basis that Trooper Danko's statement was admissible as substantive evidence under 42 Pa.C.S. § 5985.1 ("Tender Years Hearsay Act" or "Act").”
Commonwealth v. Walter, 93 A.3d 442 (Pa. 2014).
· cites it 2× “See 42 Pa.C.S. § 5985.1(a)(1). To the extent the alleged victim has a generalized difficulty distinguishing fiction from reality, or believes it is normal and acceptable to lie, the reliability of his or her prior hearsay statements is called into question, as such statements…”
Commonwealth v. Wilson, 707 A.2d 1114 (Pa. 1998).
· cites it 5× “Badran's testimony concerning Nicole's statements may have been admissible pursuant to the Tender Years Hearsay Act, 42 Pa.C.S. § 5985.1. This section provides, in relevant part, as follows: § 5985.”
Commonwealth v. McClelland, 165 A.3d 19 (Pa. Super. Ct. 2017).
· cites it 2× “42 Pa.C.S. § 5985.1 (permitting introduction of out-of-court statement made by a child victim or witness under certain conditions).”
— 42 Pa. Cons. Stat. § 5985.1(1)(i) — 1 case
— 42 Pa. Cons. Stat. § 5985.1(a) — 30 cases
Commonwealth v. Strafford, 194 A.3d 168 (Pa. Super. Ct. 2018).
“3 On March 18, 2015, the Commonwealth simultaneously lodged its Petition to Admit Out-of-Court Statements Under the "Tender Years Hearsay Exception", 42 Pa.C.S. § 5985.1 [ sic ], 4 as well as a Motion to Allow a Child Witness to Testify Under the Pennsylvania Uniform Child…”
Com. v. Luster, D., 234 A.3d 836 (Pa. Super. Ct. 2020).
“-2- J-S21013-20 Tender Years Hearsay Act (“the Act”), 42 Pa.C.S. §5985.1(a). Id. at 9. During jury selection, the Commonwealth gave oral notice a second time.”
In the Int. of: D.C., Appeal of: D.C., 2021 Pa. Super. 179 (Pa. Super. Ct. 2021).
“Appellant challenges the trial court’s application of the Tender Years Hearsay Act, 42 Pa.C.S. § 5985.1, and the sufficiency of the evidence.”
— 42 Pa. Cons. Stat. § 5985.1(a)(1) — 21 cases
Commonwealth v. Strafford, 194 A.3d 168 (Pa. Super. Ct. 2018).
“3 On March 18, 2015, the Commonwealth simultaneously lodged its Petition to Admit Out-of-Court Statements Under the "Tender Years Hearsay Exception", 42 Pa.C.S. § 5985.1 [ sic ], 4 as well as a Motion to Allow a Child Witness to Testify Under the Pennsylvania Uniform Child…”
Commonwealth v. Barnett, 50 A.3d 176 (Pa. 2012).
“Did the Trial Court err in admitting out-of-court statements of the ten-year-old and twelve-year-old sexual assault complainants under the Tender Years Act, 42 Pa.C.S. § 5985.1 where the time, content and circumstances of the statements did not provide sufficient indicia of…”
Commonwealth v. Walter, 93 A.3d 442 (Pa. 2014).
“See 42 Pa.C.S. § 5985.1(a)(1). To the extent the alleged victim has a generalized difficulty distinguishing fiction from reality, or believes it is normal and acceptable to lie, the reliability of his or her prior hearsay statements is called into question, as such statements…”
Commonwealth v. Halsted, 666 A.2d 655 (Pa. 1995).
“The Concurring and Dissenting Opinion would uphold Appellant's conviction on the basis that Trooper Danko's statement was admissible as substantive evidence under 42 Pa.C.S. § 5985.1 ("Tender Years Hearsay Act" or "Act").”
— 42 Pa. Cons. Stat. § 5985.1(a)(1)(2)(i) — 1 case
Commonwealth v. Strafford, 194 A.3d 168 (Pa. Super. Ct. 2018).
“3 On March 18, 2015, the Commonwealth simultaneously lodged its Petition to Admit Out-of-Court Statements Under the "Tender Years Hearsay Exception", 42 Pa.C.S. § 5985.1 [ sic ], 4 as well as a Motion to Allow a Child Witness to Testify Under the Pennsylvania Uniform Child…”
— 42 Pa. Cons. Stat. § 5985.1(a)(1)(i) — 4 cases
In the Int. of: D.C., Appeal of: D.C., 2021 Pa. Super. 179 (Pa. Super. Ct. 2021).
“Appellant challenges the trial court’s application of the Tender Years Hearsay Act, 42 Pa.C.S. § 5985.1, and the sufficiency of the evidence.”
— 42 Pa. Cons. Stat. § 5985.1(a)(1)(ii)(A) — 1 case
— 42 Pa. Cons. Stat. § 5985.1(a)(2) — 2 cases
— 42 Pa. Cons. Stat. § 5985.1(a)(2)(h) — 1 case
Commonwealth v. Walter, 93 A.3d 442 (Pa. 2014).
“See 42 Pa.C.S. § 5985.1(a)(1). To the extent the alleged victim has a generalized difficulty distinguishing fiction from reality, or believes it is normal and acceptable to lie, the reliability of his or her prior hearsay statements is called into question, as such statements…”
— 42 Pa. Cons. Stat. § 5985.1(b) — 15 cases
Com. v. Luster, D., 234 A.3d 836 (Pa. Super. Ct. 2020).
“-2- J-S21013-20 Tender Years Hearsay Act (“the Act”), 42 Pa.C.S. §5985.1(a). Id. at 9. During jury selection, the Commonwealth gave oral notice a second time.”
Commonwealth v. Halsted, 666 A.2d 655 (Pa. 1995).
“The Concurring and Dissenting Opinion would uphold Appellant's conviction on the basis that Trooper Danko's statement was admissible as substantive evidence under 42 Pa.C.S. § 5985.1 ("Tender Years Hearsay Act" or "Act").”
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