An Act to Permit Recordings of a Protected Person to Be Admissible in Evidence
Maine Legislature, Session 131, LD 0765
Committee: Judiciary
Sponsors: CARNEY, HENDERSON, BEEBE-CENTER, BENNETT, DUSON, CLOUTIER, LEE, MILLETT, MOONEN, POIRIER
Amends: 16 MRSA §358, 22 MRSA §4019

Legislative Document
No. 765
S.P. 324
In Senate, February 21, 2023
An Act to Permit Recordings of a Protected Person to Be Admissible 
in Evidence
Reference to the Committee on Judiciary suggested and ordered printed.
DAREK M. GRANT
Secretary of the Senate
Presented by Senator CARNEY of Cumberland.
Cosponsored by Representative HENDERSON of Rumford and
Senators: BEEBE-CENTER of Knox, BENNETT of Oxford, DUSON of Cumberland, 
Representatives: CLOUTIER of Lewiston, LEE of Auburn, MILLETT of Cape Elizabeth, 
MOONEN of Portland, POIRIER of Skowhegan.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  16 MRSA §358 is enacted to read:
§358.  Admissibility of recordings of protected person
1.  Definitions. As used in this section, unless the context otherwise indicates, the 
following terms have the following meanings.
A.  "Forensic interview" means a fact-finding conversation conducted by a forensic 
interviewer using an evidence-based practice.
B.  "Forensic interviewer" means an individual who meets the qualifications in 
subsection 2.
C.  "Protected person" means a person who at the time of a recording of a forensic 
interview:
(1)  Has not attained 18 years of age; or
(2)  Is an adult who is eligible for protective services pursuant to the Adult 
Protective Services Act.
2.  Qualifications of forensic interviewer.  In order to be qualified as a forensic 
interviewer, an individual must:
A.  Be employed by a child advocacy center or affiliated with a child advocacy center;
B.  Have completed a minimum of 32 hours of specialized instruction on an evidence-
supported interview protocol; and
C.  Participate in ongoing education in the field of child maltreatment or forensic 
interviewing. 
3.  Admissibility of recording.  A recording of a forensic interview of a protected 
person is admissible as evidence and is an exception to the hearsay rule pursuant to the 
Maine Rules of Evidence, Rule 802 in the courts of this State if:
A.  The interview was conducted by a forensic interviewer;
B.  The interview is relevant pursuant to the Maine Rules of Evidence, Rule 401;
C.  A relative of the protected person was not present in the room during the substantive 
phase of the interview;
D.  An attorney for any party in a proceeding with the protected person was not present 
in the room with the protected person during the interview;
E.  The recording is both visual and audio;
F.  The recording is a fair and accurate representation of the statements made by the 
protected person and has not been altered except for purposes of relevancy pursuant to 
the Maine Rules of Evidence, Rule 401; and
G.  The protected person is available to testify or be cross-examined by any party in a 
criminal matter.
4.  Recordings of protected persons preserved.  A recording of a protected person 
that is made part of the court record must be preserved under a protective order of the court 
in order to protect the privacy of the protected person. The court shall maintain a copy of 
the recording as part of the court file for 20 years. 
5.  Certification of forensic interview recordings.  Forensic interview recordings are 
admissible as evidence in the courts of this State in accordance with subsection 3. The court 
shall admit copies of the recordings if certified by the forensic interviewer to be true and 
complete and to have met all requirements in subsection 3 and the forensic interviewer 
identifies the location of the interview and the identity of the individuals in the recording 
in the certification.
Sec. 2.  22 MRSA §4019, sub-§1, ¶B, as enacted by PL 2013, c. 364, §1, is 
amended to read:
B.  "Child advocacy center" or "center" means a community-based center that provides 
multidisciplinary services for children and families affected by child sexual abuse and 
other child abuse and neglect, including a center in another jurisdiction.
Sec. 3.  22 MRSA §4019, sub-§1, ¶D is enacted to read:
D.  "Forensic interview" has the same meaning as in Title 16, section 358, subsection 
1, paragraph A.
Sec. 4.  22 MRSA §4019, sub-§9, as enacted by PL 2013, c. 364, §1, is amended to 
read:
9.  Confidential records except recordings of forensic interviews.  The Except for 
recordings of forensic interviews, the files, reports, records, communications and working 
papers used or developed in providing services under this section are confidential and are 
not public records for purposes of Title 1, chapter 13, subchapter 1.  Information may be 
disclosed only to the following in order for them to carry out their duties:
A.  The department, department employees, law enforcement agencies, prosecuting 
attorneys assistant attorneys general who are involved in child protective cases, 
medical professionals and other state agencies that provide services to children and 
families;.
B.  The attorney for a child who is the subject of confidential records; and
C.  A guardian ad litem appointed under section 4005 for a child who is the subject of 
confidential records.
Sec. 5.  22 MRSA §4019, sub-§9-A is enacted to read:
9-A.  Recordings of forensic interviews confidential.  The following provisions 
govern recordings of forensic interviews.  Recordings of forensic interviews are 
confidential and are not public records for purposes of Title 1, chapter 13, subchapter 1. 
Information may be disclosed: 
A. To the department, department employees, law enforcement agencies, assistant 
attorneys general who are involved in child protective cases, prosecuting attorneys, 
medical professionals and other state agencies that provide services to children and 
families in order for them to carry out their duties;
B. To the attorney for a child who is the subject of confidential records;
C. To a guardian ad litem appointed under section 4005 for a child who is the subject 
of confidential records;
D. In a matter under Title 18-C or 19-A, upon specific request for the recording of the 
forensic interview by the parties or on the court's own motion. A court may order 
disclosure of the recording of a forensic interview in accordance with section 4008, 
subsection 3, paragraph B if the court finds that access to the recording is necessary for 
the determination of an issue before the court and that the necessity of access to the 
recording outweighs the potential effect on the alleged victim. The court shall follow 
the following procedure.
(1)  Before ordering disclosure of the recording, the court shall require that an 
investigating law enforcement agency, if any, has been given an opportunity to 
indicate its position on disclosure of the recording. 
(2) If the court determines based on the pleadings that the recording is necessary 
for the determination of an issue before the court and that the necessity of access 
to the recording outweighs the potential effect on the alleged victim, the court shall 
order the department, pursuant to section 4008, subsection 3, paragraph B, to 
provide a copy to the court for in camera inspection.  The court shall conduct an in 
camera review of the recording in order to make a determination about who should 
be entitled to view the recording.
(3) If the court determines that the recording should be disclosed, the court shall 
consider whether a guardian ad litem should be appointed in the case if one is not 
already appointed. If there is a guardian ad litem, the court shall consider whether 
to restrict access to the recording only to the guardian ad litem.  
(4) The court shall issue a protective order of confidentiality ordering who is 
allowed to view the recording and how and where viewing will occur.  In making 
its determination, the court shall weigh whether the parties are represented by 
counsel and whether restricting viewing of the recording will be unduly prejudicial 
to a party.  The recording may not be copied, reproduced or disseminated in any 
way.  
(5) If the recording is admitted pursuant to Title 16, section 358, subsection 3, the 
court shall admit the recording under seal; and
E. In a criminal matter, to a defendant pursuant to the Maine Rules of Unified Criminal 
Procedure, Rule 16(b)(6).  Before releasing the recording, the prosecutor shall request 
that the court issue a protective order of confidentiality ordering who is allowed to view 
the recording and how and where viewing will occur.  In making its determination, the 
court shall weigh whether the defendant is represented by counsel and whether 
restricting viewing of the recording will be unduly prejudicial to the defendant.
SUMMARY
This bill creates a comprehensive assessment for courts to apply in evaluating whether 
to admit forensic interviews into evidence in criminal and civil cases by specifying the 
requirements for those interviews to be admissible into evidence.
The bill also clarifies who has access to forensic interviews.  The bill establishes a 
process for civil cases that mirrors how Department of Health and Human Services records 
are accessed in other cases. The bill codifies the current practice used in criminal cases and 
follows the criminal rules of procedure.