Virginia Code
Va. Code Ann. § 19.2-268.3 (2026)
Admissibility of statements by children in certain cases
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A. As used in this section, "offense against children" means a violation or an attempt to violate § 18.2-31, 18.2-32, or 18.2-35, subsection A of § 18.2-47, § 18.2-48, 18.2-51, 18.2-51.2, 18.2-51.6, 18.2-52, 18.2-54.1, 18.2-54.2, 18.2-61, 18.2-67.1, 18.2-67.2, or 18.2-67.3, § 18.2-346.01 if punishable as a felony, § 18.2-355, 18.2-356, 18.2-357, or 18.2-357.1, subsection B of § 18.2-361, subsection B of § 18.2-366, § 18.2-370, 18.2-370.1, 18.2-371.1, 18.2-374.1, 18.2-374.1:1, 18.2-374.3, or 18.2-374.4, § 18.2-386.1 if punishable as a felony, or § 40.1-103.
B. An out-of-court statement made by a child who is under 13 years of age at the time of trial or hearing who is the alleged victim of an offense against children describing any act directed against the child relating to such alleged offense shall not be excluded as hearsay under Rule 2:802 of the Rules of Supreme Court of Virginia if both of the following apply:
1. The court finds, in a hearing conducted prior to a trial, that the time, content, and totality of circumstances surrounding the statement provide sufficient indicia of reliability so as to render it inherently trustworthy. In determining such trustworthiness, the court may consider, among other things, the following factors:
a. The child's personal knowledge of the event;
b. The age, maturity, and mental state of the child;
c. The credibility of the person testifying about the statement;
d. Any apparent motive the child may have to falsify or distort the event, including bias or coercion;
e. Whether the child was suffering pain or distress when making the statement; and
f. Whether extrinsic evidence exists to show the defendant's opportunity to commit the act; and
2. The child:
a. Testifies; or
b. Is declared by the court to be unavailable as a witness; when the child has been declared unavailable, such statement may be admitted pursuant to this section only if there is corroborative evidence of the act relating to an alleged offense against children.
C. At least 14 days prior to the commencement of the proceeding in which a statement will be offered as evidence, the party intending to offer the statement shall notify the opposing party, in writing, of the intent to offer the statement and shall provide or make available copies of the statement to be introduced.
D. This section shall not be construed to limit the admission of any statement offered under any other hearsay exception or applicable rule of evidence.
Notes of Decisions
Cited in 24
cases (18 in the last 5 years), 2017–2026 · leading case: Justo Mazariegos Campos v. Commonwealth of Virginia, 800 S.E.2d 174 (Va. Ct. App. 2017).
Justo Mazariegos Campos v. Commonwealth of Virginia, 800 S.E.2d 174 (Va. Ct. App. 2017). “Although not applicable to the case at bar, this Court notes that the General Assembly recognized the importance of child testimony in prosecutions of offenses against children when it enacted Code § 19.2-268.3 in 2016. That statute provides that out-of-court statements made by…”
Robert McKinley Blankenship v. Commonwealth of Virginia, 823 S.E.2d 1 (Va. Ct. App. 2019). “9 (allowing child to testify by two-way closed-circuit television in certain circumstances).”
Bista v. Commonwealth, 78 Va. App. 391 (Va. 2024). “CHAFIN NOVEMBER 14, 2024 COMMONWEALTH OF VIRGINIA FROM THE COURT OF APPEALS OF VIRGINIA In this case, we consider whether a child’s out-of-court statements describing acts of sexual abuse were properly admitted into evidence pursuant to Code § 19.2-268.3. We also consider…”
Dilliraj Bista v. Commonwealth of Virginia, 880 S.E.2d 828 (Va. Ct. App. 2022). “First, Bista argues that the trial court erroneously admitted the child’s out-of-court statements under Code § 19.2-268.3. As a matter of first impression, we must decide whether that statute conditions admissibility on the declarant’s competency to testify.”
Dilliraj Bista v. Commonwealth of Virginia, 891 S.E.2d 711 (Va. Ct. App. 2023). “2 On appeal, a three-judge panel of this Court heard Bista’s challenges to the admission of the child’s out-of-court statements under Code § 19.2-268.3 and to the admission of a video depicting the child’s forensic interview, which he argued violated his right to confrontation…”
Paul Anthony Chenevert v. Commonwealth of Virginia, 840 S.E.2d 590 (Va. Ct. App. 2020). “made during a forensic interview because the letter and drawings were inadmissible hearsay. Although the evidence was hearsay, the trial court correctly held that the letter and drawings were admissible under the hearsay exception provided by Code § 19.”
Dilliraj Bista v. Commonwealth of Virginia, 883 S.E.2d 664 (Va. Ct. App. 2023). “First, Bista argues that the trial court erroneously admitted the child’s out-of-court statements under Code § 19.2-268.3. As a matter of first impression, we must decide whether that statute conditions admissibility on the declarant’s competency to testify.”
Aaron Anthony Marsh v. Commonwealth of Virginia, No. 1011181 (Va. Ct. App. Oct. 15, 2019). “On appeal, he argues that the trial court erred in finding that Code § 19.2-268.3 is constitutional and applicable to his case, as it violates the right to confrontation under the Sixth Amendment of the United States Constitution.”
Antwan Christopher Williams v. Commonwealth of Virginia, No. 0648231 (Va. Ct. App. June 11, 2024). “Williams argues that the trial court erred in admitting into evidence the videotaped forensic interviews of the two victims under the hearsay exception provided by Code § 19.2-268.3, which permits the admission of certain hearsay statements of child victims of specified crimes.”
Sharice Takeya Curtis v. Commonwealth of Virginia, No. 0943234 (Va. Ct. App. Oct. 15, 2024). “’s statements under the “tender years” exception to the rule against hearsay under Code § 19.2-268.3. Specifically, the Commonwealth sought to admit statements S.”
Journy Lee Snead v. Commonwealth of Virginia, No. 1211192 (Va. Ct. App. Feb. 2, 2021). “After she was qualified as an expert, the defense renewed its objections “regarding the admissibility of various statements” that the circuit court previously deemed admissible, arguing that Code § 19.2-268.3 “wipes out the right of confrontation under the constitution.”
Latrice Curtis v. Commonwealth of Virginia, No. 0422234 (Va. Ct. App. Apr. 23, 2024). “She also argues that the trial court erred in admitting a recorded forensic interview under the hearsay exception provided by Code § 19.2-268.3, which permits the admission of certain hearsay statements of child victims of specified crimes.”
Va. Code Ann. § 19.2-268.3(A): 1 case
Bista v. Commonwealth, 78 Va. App. 391 (Va. 2024). “CHAFIN NOVEMBER 14, 2024 COMMONWEALTH OF VIRGINIA FROM THE COURT OF APPEALS OF VIRGINIA In this case, we consider whether a child’s out-of-court statements describing acts of sexual abuse were properly admitted into evidence pursuant to Code § 19.2-268.3. We also consider…”
Va. Code Ann. § 19.2-268.3(B): 12 cases
Dilliraj Bista v. Commonwealth of Virginia, 891 S.E.2d 711 (Va. Ct. App. 2023). “2 On appeal, a three-judge panel of this Court heard Bista’s challenges to the admission of the child’s out-of-court statements under Code § 19.2-268.3 and to the admission of a video depicting the child’s forensic interview, which he argued violated his right to confrontation…”
Sharice Takeya Curtis v. Commonwealth of Virginia, No. 0943234 (Va. Ct. App. Oct. 15, 2024). “’s statements under the “tender years” exception to the rule against hearsay under Code § 19.2-268.3. Specifically, the Commonwealth sought to admit statements S.”
Bista v. Commonwealth, 78 Va. App. 391 (Va. 2024). “CHAFIN NOVEMBER 14, 2024 COMMONWEALTH OF VIRGINIA FROM THE COURT OF APPEALS OF VIRGINIA In this case, we consider whether a child’s out-of-court statements describing acts of sexual abuse were properly admitted into evidence pursuant to Code § 19.2-268.3. We also consider…”
Carlos Artur Alvarez Saucedo v. Commonwealth of Virginia, No. 1440183 (Va. Ct. App. Oct. 29, 2019).
Latrice Curtis v. Commonwealth of Virginia, No. 0422234 (Va. Ct. App. Apr. 23, 2024). “She also argues that the trial court erred in admitting a recorded forensic interview under the hearsay exception provided by Code § 19.2-268.3, which permits the admission of certain hearsay statements of child victims of specified crimes.”
Va. Code Ann. § 19.2-268.3(B)(1): 9 cases
Bista v. Commonwealth, 78 Va. App. 391 (Va. 2024). “CHAFIN NOVEMBER 14, 2024 COMMONWEALTH OF VIRGINIA FROM THE COURT OF APPEALS OF VIRGINIA In this case, we consider whether a child’s out-of-court statements describing acts of sexual abuse were properly admitted into evidence pursuant to Code § 19.2-268.3. We also consider…”
Daniel Justin Rose v. Commonwealth of Virginia, No. 0893231 (Va. Ct. App. July 23, 2024).
Paul Anthony Chenevert v. Commonwealth of Virginia, 840 S.E.2d 590 (Va. Ct. App. 2020). “made during a forensic interview because the letter and drawings were inadmissible hearsay. Although the evidence was hearsay, the trial court correctly held that the letter and drawings were admissible under the hearsay exception provided by Code § 19.”
Latrice Curtis v. Commonwealth of Virginia, No. 0422234 (Va. Ct. App. Apr. 23, 2024). “She also argues that the trial court erred in admitting a recorded forensic interview under the hearsay exception provided by Code § 19.2-268.3, which permits the admission of certain hearsay statements of child victims of specified crimes.”
Journy Lee Snead v. Commonwealth of Virginia, No. 1211192 (Va. Ct. App. Feb. 2, 2021). “After she was qualified as an expert, the defense renewed its objections “regarding the admissibility of various statements” that the circuit court previously deemed admissible, arguing that Code § 19.2-268.3 “wipes out the right of confrontation under the constitution.”
Va. Code Ann. § 19.2-268.3(B)(1)(a): 8 cases
Bista v. Commonwealth, 78 Va. App. 391 (Va. 2024). “CHAFIN NOVEMBER 14, 2024 COMMONWEALTH OF VIRGINIA FROM THE COURT OF APPEALS OF VIRGINIA In this case, we consider whether a child’s out-of-court statements describing acts of sexual abuse were properly admitted into evidence pursuant to Code § 19.2-268.3. We also consider…”
Dilliraj Bista v. Commonwealth of Virginia, 880 S.E.2d 828 (Va. Ct. App. 2022). “First, Bista argues that the trial court erroneously admitted the child’s out-of-court statements under Code § 19.2-268.3. As a matter of first impression, we must decide whether that statute conditions admissibility on the declarant’s competency to testify.”
Dilliraj Bista v. Commonwealth of Virginia, 891 S.E.2d 711 (Va. Ct. App. 2023). “2 On appeal, a three-judge panel of this Court heard Bista’s challenges to the admission of the child’s out-of-court statements under Code § 19.2-268.3 and to the admission of a video depicting the child’s forensic interview, which he argued violated his right to confrontation…”
Dilliraj Bista v. Commonwealth of Virginia, 883 S.E.2d 664 (Va. Ct. App. 2023). “First, Bista argues that the trial court erroneously admitted the child’s out-of-court statements under Code § 19.2-268.3. As a matter of first impression, we must decide whether that statute conditions admissibility on the declarant’s competency to testify.”
Journy Lee Snead v. Commonwealth of Virginia, No. 1211192 (Va. Ct. App. Feb. 2, 2021). “After she was qualified as an expert, the defense renewed its objections “regarding the admissibility of various statements” that the circuit court previously deemed admissible, arguing that Code § 19.2-268.3 “wipes out the right of confrontation under the constitution.”
Va. Code Ann. § 19.2-268.3(B)(1)(b): 4 cases
Bista v. Commonwealth, 78 Va. App. 391 (Va. 2024). “CHAFIN NOVEMBER 14, 2024 COMMONWEALTH OF VIRGINIA FROM THE COURT OF APPEALS OF VIRGINIA In this case, we consider whether a child’s out-of-court statements describing acts of sexual abuse were properly admitted into evidence pursuant to Code § 19.2-268.3. We also consider…”
Dilliraj Bista v. Commonwealth of Virginia, 880 S.E.2d 828 (Va. Ct. App. 2022). “First, Bista argues that the trial court erroneously admitted the child’s out-of-court statements under Code § 19.2-268.3. As a matter of first impression, we must decide whether that statute conditions admissibility on the declarant’s competency to testify.”
Dilliraj Bista v. Commonwealth of Virginia, 891 S.E.2d 711 (Va. Ct. App. 2023). “2 On appeal, a three-judge panel of this Court heard Bista’s challenges to the admission of the child’s out-of-court statements under Code § 19.2-268.3 and to the admission of a video depicting the child’s forensic interview, which he argued violated his right to confrontation…”
Dilliraj Bista v. Commonwealth of Virginia, 883 S.E.2d 664 (Va. Ct. App. 2023). “First, Bista argues that the trial court erroneously admitted the child’s out-of-court statements under Code § 19.2-268.3. As a matter of first impression, we must decide whether that statute conditions admissibility on the declarant’s competency to testify.”
Va. Code Ann. § 19.2-268.3(B)(1)(c): 5 cases
Dilliraj Bista v. Commonwealth of Virginia, 880 S.E.2d 828 (Va. Ct. App. 2022). “First, Bista argues that the trial court erroneously admitted the child’s out-of-court statements under Code § 19.2-268.3. As a matter of first impression, we must decide whether that statute conditions admissibility on the declarant’s competency to testify.”
Dilliraj Bista v. Commonwealth of Virginia, 891 S.E.2d 711 (Va. Ct. App. 2023). “2 On appeal, a three-judge panel of this Court heard Bista’s challenges to the admission of the child’s out-of-court statements under Code § 19.2-268.3 and to the admission of a video depicting the child’s forensic interview, which he argued violated his right to confrontation…”
Dilliraj Bista v. Commonwealth of Virginia, 883 S.E.2d 664 (Va. Ct. App. 2023). “First, Bista argues that the trial court erroneously admitted the child’s out-of-court statements under Code § 19.2-268.3. As a matter of first impression, we must decide whether that statute conditions admissibility on the declarant’s competency to testify.”
Chris Lee Thompson Stevens v. Commonwealth of Virginia, No. 0075242 (Va. Ct. App. July 22, 2025).
Journy Lee Snead v. Commonwealth of Virginia, No. 1211192 (Va. Ct. App. Feb. 2, 2021). “After she was qualified as an expert, the defense renewed its objections “regarding the admissibility of various statements” that the circuit court previously deemed admissible, arguing that Code § 19.2-268.3 “wipes out the right of confrontation under the constitution.”
Va. Code Ann. § 19.2-268.3(B)(1)(d): 4 cases
Dilliraj Bista v. Commonwealth of Virginia, 880 S.E.2d 828 (Va. Ct. App. 2022). “First, Bista argues that the trial court erroneously admitted the child’s out-of-court statements under Code § 19.2-268.3. As a matter of first impression, we must decide whether that statute conditions admissibility on the declarant’s competency to testify.”
Bista v. Commonwealth, 78 Va. App. 391 (Va. 2024). “CHAFIN NOVEMBER 14, 2024 COMMONWEALTH OF VIRGINIA FROM THE COURT OF APPEALS OF VIRGINIA In this case, we consider whether a child’s out-of-court statements describing acts of sexual abuse were properly admitted into evidence pursuant to Code § 19.2-268.3. We also consider…”
Dilliraj Bista v. Commonwealth of Virginia, 891 S.E.2d 711 (Va. Ct. App. 2023). “2 On appeal, a three-judge panel of this Court heard Bista’s challenges to the admission of the child’s out-of-court statements under Code § 19.2-268.3 and to the admission of a video depicting the child’s forensic interview, which he argued violated his right to confrontation…”
Dilliraj Bista v. Commonwealth of Virginia, 883 S.E.2d 664 (Va. Ct. App. 2023). “First, Bista argues that the trial court erroneously admitted the child’s out-of-court statements under Code § 19.2-268.3. As a matter of first impression, we must decide whether that statute conditions admissibility on the declarant’s competency to testify.”
Va. Code Ann. § 19.2-268.3(B)(1)(e): 3 cases
Dilliraj Bista v. Commonwealth of Virginia, 880 S.E.2d 828 (Va. Ct. App. 2022). “First, Bista argues that the trial court erroneously admitted the child’s out-of-court statements under Code § 19.2-268.3. As a matter of first impression, we must decide whether that statute conditions admissibility on the declarant’s competency to testify.”
Dilliraj Bista v. Commonwealth of Virginia, 891 S.E.2d 711 (Va. Ct. App. 2023). “2 On appeal, a three-judge panel of this Court heard Bista’s challenges to the admission of the child’s out-of-court statements under Code § 19.2-268.3 and to the admission of a video depicting the child’s forensic interview, which he argued violated his right to confrontation…”
Dilliraj Bista v. Commonwealth of Virginia, 883 S.E.2d 664 (Va. Ct. App. 2023). “First, Bista argues that the trial court erroneously admitted the child’s out-of-court statements under Code § 19.2-268.3. As a matter of first impression, we must decide whether that statute conditions admissibility on the declarant’s competency to testify.”
Va. Code Ann. § 19.2-268.3(B)(1)(f): 5 cases
Dilliraj Bista v. Commonwealth of Virginia, 880 S.E.2d 828 (Va. Ct. App. 2022). “First, Bista argues that the trial court erroneously admitted the child’s out-of-court statements under Code § 19.2-268.3. As a matter of first impression, we must decide whether that statute conditions admissibility on the declarant’s competency to testify.”
Bista v. Commonwealth, 78 Va. App. 391 (Va. 2024). “CHAFIN NOVEMBER 14, 2024 COMMONWEALTH OF VIRGINIA FROM THE COURT OF APPEALS OF VIRGINIA In this case, we consider whether a child’s out-of-court statements describing acts of sexual abuse were properly admitted into evidence pursuant to Code § 19.2-268.3. We also consider…”
Dilliraj Bista v. Commonwealth of Virginia, 891 S.E.2d 711 (Va. Ct. App. 2023). “2 On appeal, a three-judge panel of this Court heard Bista’s challenges to the admission of the child’s out-of-court statements under Code § 19.2-268.3 and to the admission of a video depicting the child’s forensic interview, which he argued violated his right to confrontation…”
Dilliraj Bista v. Commonwealth of Virginia, 883 S.E.2d 664 (Va. Ct. App. 2023). “First, Bista argues that the trial court erroneously admitted the child’s out-of-court statements under Code § 19.2-268.3. As a matter of first impression, we must decide whether that statute conditions admissibility on the declarant’s competency to testify.”
Daniel Justin Rose v. Commonwealth of Virginia, No. 0893231 (Va. Ct. App. July 23, 2024).
Va. Code Ann. § 19.2-268.3(B)(2): 5 cases
Paul Anthony Chenevert v. Commonwealth of Virginia, 840 S.E.2d 590 (Va. Ct. App. 2020). “made during a forensic interview because the letter and drawings were inadmissible hearsay. Although the evidence was hearsay, the trial court correctly held that the letter and drawings were admissible under the hearsay exception provided by Code § 19.”
Journy Lee Snead v. Commonwealth of Virginia, No. 1211192 (Va. Ct. App. Feb. 2, 2021). “After she was qualified as an expert, the defense renewed its objections “regarding the admissibility of various statements” that the circuit court previously deemed admissible, arguing that Code § 19.2-268.3 “wipes out the right of confrontation under the constitution.”
Latrice Curtis v. Commonwealth of Virginia, No. 0422234 (Va. Ct. App. Apr. 23, 2024). “She also argues that the trial court erred in admitting a recorded forensic interview under the hearsay exception provided by Code § 19.2-268.3, which permits the admission of certain hearsay statements of child victims of specified crimes.”
Antwan Christopher Williams v. Commonwealth of Virginia, No. 0648231 (Va. Ct. App. June 11, 2024). “Williams argues that the trial court erred in admitting into evidence the videotaped forensic interviews of the two victims under the hearsay exception provided by Code § 19.2-268.3, which permits the admission of certain hearsay statements of child victims of specified crimes.”
Sharice Takeya Curtis v. Commonwealth of Virginia, No. 0943234 (Va. Ct. App. Oct. 15, 2024). “’s statements under the “tender years” exception to the rule against hearsay under Code § 19.2-268.3. Specifically, the Commonwealth sought to admit statements S.”
Va. Code Ann. § 19.2-268.3(B)(2)(a): 4 cases
Bista v. Commonwealth, 78 Va. App. 391 (Va. 2024). “CHAFIN NOVEMBER 14, 2024 COMMONWEALTH OF VIRGINIA FROM THE COURT OF APPEALS OF VIRGINIA In this case, we consider whether a child’s out-of-court statements describing acts of sexual abuse were properly admitted into evidence pursuant to Code § 19.2-268.3. We also consider…”
Travis Larone Kimble v. Commonwealth of Virginia, No. 1621244 (Va. Ct. App. Jan. 13, 2026).
Carlos Artur Alvarez Saucedo v. Commonwealth of Virginia, No. 1440183 (Va. Ct. App. Oct. 29, 2019).
Dilliraj Bista v. Commonwealth of Virginia, 891 S.E.2d 711 (Va. Ct. App. 2023). “2 On appeal, a three-judge panel of this Court heard Bista’s challenges to the admission of the child’s out-of-court statements under Code § 19.2-268.3 and to the admission of a video depicting the child’s forensic interview, which he argued violated his right to confrontation…”
Va. Code Ann. § 19.2-268.3(B)(2)(b): 4 cases
Dilliraj Bista v. Commonwealth of Virginia, 880 S.E.2d 828 (Va. Ct. App. 2022). “First, Bista argues that the trial court erroneously admitted the child’s out-of-court statements under Code § 19.2-268.3. As a matter of first impression, we must decide whether that statute conditions admissibility on the declarant’s competency to testify.”
Dilliraj Bista v. Commonwealth of Virginia, 891 S.E.2d 711 (Va. Ct. App. 2023). “2 On appeal, a three-judge panel of this Court heard Bista’s challenges to the admission of the child’s out-of-court statements under Code § 19.2-268.3 and to the admission of a video depicting the child’s forensic interview, which he argued violated his right to confrontation…”
Bista v. Commonwealth, 78 Va. App. 391 (Va. 2024). “CHAFIN NOVEMBER 14, 2024 COMMONWEALTH OF VIRGINIA FROM THE COURT OF APPEALS OF VIRGINIA In this case, we consider whether a child’s out-of-court statements describing acts of sexual abuse were properly admitted into evidence pursuant to Code § 19.2-268.3. We also consider…”
Dilliraj Bista v. Commonwealth of Virginia, 883 S.E.2d 664 (Va. Ct. App. 2023). “First, Bista argues that the trial court erroneously admitted the child’s out-of-court statements under Code § 19.2-268.3. As a matter of first impression, we must decide whether that statute conditions admissibility on the declarant’s competency to testify.”
Va. Code Ann. § 19.2-268.3(C): 1 case
Aaron Anthony Marsh v. Commonwealth of Virginia, No. 1011181 (Va. Ct. App. Oct. 15, 2019). “On appeal, he argues that the trial court erred in finding that Code § 19.2-268.3 is constitutional and applicable to his case, as it violates the right to confrontation under the Sixth Amendment of the United States Constitution.”
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