2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 2. Rules of Evidence for Criminal Cases › 46-16-222. Testimony of third person in cases of exploitation of incapacitated person or vulnerable adult

46-16-222. Testimony of third person in cases of exploitation of incapacitated person or vulnerable adult.
(1) Otherwise inadmissible hearsay may be admitted into evidence in a criminal proceeding, as provided in subsections (2) and (3), if:
(a) the declarant of the out-of-court statement is an incapacitated person or vulnerable adult who is:
(i) an alleged victim of exploitation of an incapacitated person or vulnerable adult pursuant to 45-6-333 that is the subject of the criminal proceeding; or
(ii) a witness to an alleged exploitation of an incapacitated person or vulnerable adult pursuant to 45-6-333 that is the subject of the criminal proceeding;
(b) the court finds that the time, content, and circumstances of the statement provide circumstantial guarantees of trustworthiness;
(c) the incapacitated person or vulnerable adult is unavailable as a witness;
(d) the hearsay testimony is offered as evidence of a material fact and is more probative on the point for which it is offered than any other evidence available through reasonable efforts; and
(e) the party intending to offer the hearsay testimony gives sufficient notice to provide the adverse party with a fair opportunity to prepare. The notice must include the content of the statement, the approximate time, date, and location of the statement, the person to whom the statement was made, and the circumstances surrounding the statement that the offering party believes support the statement's reliability.
(2) The court shall issue findings of fact and conclusions of law setting forth the court's reasoning on the admissibility of the testimony.
(3) When deciding the admissibility of offered hearsay testimony under subsections (1) and (2), a court shall consider the following:
(a) the attributes of the hearsay declarant, including:
(i) the individual's age;
(ii) the individual's ability to communicate verbally;
(iii) the individual's ability to comprehend the statements or questions of others;
(iv) the individual's ability to tell the difference between truth and falsehood;
(v) the individual's motivation to tell the truth, including whether the individual understands the general obligation to speak truthfully and not fabricate stories;
(vi) whether the individual possessed sufficient mental capacity at the time of the alleged incident to create an accurate memory of the incident; and
(vii) whether the individual possesses sufficient memory to retain an independent recollection of the events at issue;
(b) information regarding the witness who is relating the individual's hearsay statement, including:
(i) the witness's relationship to the individual;
(ii) whether the relationship between the witness and the individual has an impact on the trustworthiness of the individual's hearsay statement;
(iii) whether the witness has a motive to fabricate or distort the individual's statement; and
(iv) the circumstances under which the witness heard the individual's statement, including the timing of the statement in relation to the incident at issue and the availability of another person in whom the individual could confide;
(c) information regarding the individual's statement, including:
(i) whether the statement contains knowledge not normally attributed to an individual of the declarant's age;
(ii) whether the statement was spontaneous;
(iii) the suggestiveness of statements by other persons to the individual at the time that the individual made the statement;
(iv) if statements were made by the individual to more than one person, whether those statements were consistent;
(v) the nearness in time of the statement to the incident at issue; and
(vi) whether the statement is testimonial or nontestimonial in character; and
(d) other considerations that in the judge's opinion may bear on the admissibility of the individual's hearsay testimony.
(4) As used in this section, the following definitions apply:
(a) "Incapacitated person" has the meaning provided in 72-5-101.
(b) "Vulnerable adult" has the meaning provided in 52-3-803.
History: En. Sec. 1, Ch. 180, L. 2015; amd. Sec. 8, Ch. 12, L. 2023.