The Tender-Years Rule: A Child's First Statement Under MRE 803A

MRE 803A is Michigan's "tender-years" rule. It allows a young child's out-of-court statement describing a sexual act to be put before the judge or jury through another person's testimony, but only to corroborate what the child says in court, and only if five conditions are met.^[1] If the child made several such statements about the same incident, only the first one qualifies.^[2]

If a child is in immediate danger, call 911.^[4] The National Sexual Assault Hotline offers free, confidential support 24/7 at 800-656-HOPE (4673).^[5] Michigan's VOICES4 Hotline is free, confidential and anonymous, with advocates available 24/7 by call or text at 855-864-2374.^[6]

This page goes through the rule one requirement at a time. Hearsay in general, and the constitutional right to confront witnesses, are explained in the sister guide's page on hearsay and the Confrontation Clause.

Why a special rule is needed

Hearsay is a statement that the person did not make while testifying at the current trial or hearing and that a party offers to prove the truth of what it asserts. Hearsay is not admissible unless the rules of evidence provide otherwise.^[7] A child's statement to a parent, repeated in court by the parent to show that the events happened, fits that definition.

The Sexual Assault Benchbook explains that MRE 803A codifies the Michigan common-law hearsay exception known as the tender-years rule, and that although a prosecutor need not corroborate a victim's testimony under the criminal sexual conduct statutes, the rule permits corroborative testimony where the child was under age 10 when the statement was made.^[8] The no-corroboration rule is explained in cases without other witnesses.

Where the rule applies, and what kind of statement it covers

• Type of case. "This rule applies in criminal and delinquency proceedings only."^[1] The benchbook notes that a separate court rule, MCR 3.972(C), applies to child protective proceedings and contains a similar rule.^[8]
• Subject of the statement. It must be "a statement describing an incident that included a sexual act performed with or on the declarant by the defendant or an accomplice."^[1] "Declarant" is the rules' word for the person who made the statement, here the child.
• Purpose. The statement is admissible "to the extent that it corroborates testimony given by the declarant during the same proceeding."^[1]

The five conditions

Condition	Words of the rule
1. Age	"the declarant was under the age of ten when the statement was made"[1]
2. Spontaneity	"the statement is shown to have been spontaneous and without indication of manufacture"[1]
3. Timing	"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"[1]
4. Who testifies	"the statement is introduced through the testimony of someone other than the declarant"[1]
5. Notice	"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"[1]

1. Under ten when the statement was made

The age line is fixed by the date of the statement. A child who was nine when speaking and twelve at trial meets the first condition; a child who first spoke at ten does not.^[1] This is a different line from the one used for statements to medical providers, where the cases distinguish declarants older than 10 from those 10 and younger.^[9] That exception is covered in statements to doctors and SANE nurses.

2. Spontaneous and without indication of manufacture

The leading case is People v Gursky, a 2010 Michigan Supreme Court decision. This page relies on the Sexual Assault Benchbook's quotations from it. The Court said "MRE 803A generally requires the declarant-victim to initiate the subject of sexual abuse."^[3]

That does not mean a statement can never follow a question. According to the benchbook, the Court said admitting a child's answers to an adult's questioning is not necessarily "incompatible with a ruling that the child produced a spontaneous statement," but the questions must be open-ended and nonleading "in order for the statement to be considered the creation of the child."^[10]

Gursky also treats spontaneity as its own requirement. Trial courts review the totality of the circumstances, but "spontaneity is an independent requirement of admissibility rather than one factor that weighs in favor of reliability or admissibility."^[10] In Gursky itself the statements were made in response to questioning by the mother's friend and were held not spontaneous; the benchbook reports that the convictions were nonetheless affirmed because the error was harmless.^[10]

The benchbook contrasts a Court of Appeals case, People v Dunham, where a six-year-old's statements to a Friend of the Court mediator came in response to open-ended questions of the kind asked of children of divorcing parents, and the testimony was upheld.^[11]

How investigators are expected to question children is a related subject. The state protocol tells forensic interviewers to avoid suggesting events and details that children have not mentioned.^[12] See forensic interviews of children.

3. Immediate, or delayed for an excusable reason

The rule does not set a number of days. It asks whether the statement was made "immediately after the incident" or, if not, whether the delay "is excusable as having been caused by fear or other equally effective circumstance."^[1] In Dunham, as the benchbook describes it, an eight- or nine-month delay in reporting was justified given the child's fear of the defendant.^[11] Delay as a broader topic, including the time limits for filing charges, is covered in delayed reporting of sexual assault.

4. Through someone other than the child

The statement "is introduced through the testimony of someone other than the declarant."^[1] In practice that is the person the child told. The child's own account comes from the child's testimony, which the out-of-court statement corroborates.^[1]

5. Advance notice of the statement and its particulars

The side offering the statement has to make known its intent to offer it, and the statement's particulars, early enough "to provide the adverse party with a fair opportunity to prepare to meet it."^[1] The rule gives no fixed deadline. In Dunham, according to the benchbook, the Court of Appeals concluded the defendant was not prejudiced by notice given one day before trial, because he should have anticipated the testimony: the child's mother had testified at the preliminary examination that she became aware of the abuse after the child spoke with the mediator, and the mediator's name was on the witness list.^[11][13] That is one court's conclusion on one set of facts, not a general rule that one day is enough.

Only the first statement

The rule ends with a limit: "If the declarant made more than one corroborative statement about the incident, only the first is admissible under this rule."^[2]

The Sexual Assault Benchbook quotes the Michigan Supreme Court's explanation in People v Douglas (2014): the 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."^[14] The Court read the rule as allowing only the first corroborative statement as to each incident, and said "incident" is commonly understood to mean "an occurrence or event."^[14] The benchbook reports that the Court concluded the evidentiary errors in that case required reversal and a new trial.^[14]

This limit matters for interviews that happen after a child has already told someone. A statement made in a later interview is not the first corroborative statement about an incident the child has already described to another person.^[2]

What MRE 803A does not do

• It does not replace the child's testimony. The statement is admissible only to the extent it corroborates testimony the child gives in the same proceeding.^[1] Courtroom accommodations for young witnesses are explained in child witnesses in Michigan courts.
• It does not let every statement in. Each of the five conditions is separate. Gursky says that even when a statement is spontaneous, the court "must nevertheless also conduct the separate analyses necessary to determine whether the statement meets the other independent requirements of MRE 803A."^[13]
• It is not the only hearsay rule that can apply. A statement that does not fit MRE 803A may be offered under another rule, such as the one for statements made for medical treatment, which has its own requirements.^[15]

For families, what to do when a child first speaks about abuse is covered in when a child discloses sexual abuse. The limits on what expert witnesses may say about a child's behavior are in expert witnesses in child sexual abuse cases.