Legislative Update for 2022
There’s lots to talk about from the 2022 legislative session, Maryland’s 444th. We’ll start today with a bill that flew under the radar but could have a real impact on trials throughout the state.
OUT OF COURT STATEMENTS – CHILD VICTIMS AND WITNESSES - Senate Bill 20/House Bill 284
This bill changes Maryland’s “tender years” statute. That statute allows a teacher, social worker, therapist, or doctor to testify in a criminal trial as to what a child told them. The law provides it is not hearsay, although the child is required to testify. This is important because a judge or jury hears the testimony from both the child and from the trusted adult; prosecutors refer children to be interviewed by well-trained social workers who can then repeat what the child said to them. Those social workers tend to be much better witnesses - and the video-recorded statements made by children on prior occasions can be hard to challenge. The current law allows this exception only for victims in rape and child abuse cases, as long as the person is 12 years old or younger when they take the witness stand. The age at the time of trial or hearing matters, not the age when the person was alleged to have been a victim or witness.
The new law does two major things: first, it allows a witness, not just a victim, to testify “through” a trusted adult like a teacher or social worker and second, it expands the exception from child abuse and rape to all Maryland crimes of violence, using the list around in Criminal Law Article Section 14-101.
What does this mean? Well, you can anticipate that in high-profile cases with child witnesses, prosecutors will refer them for interviews with social workers and then introduce their testimony through the social worker. Look for this in murder and other cases. Challenging this sort of testimony requires a well-prepared and well-resourced attorney, able to interview and depose the witness in advance of the trial or hearing and to use mental health experts to highlight the potentially unreliable nature of “tender years” testimony.