December 10, 1998


98-18


Proposed Amendments of Rule
803A of the Michigan Rules of
Evidence, and Rule 5.972 of
the Michigan Court Rules
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          On order of the Court, this is to advise that the Court
is considering amendments of Rule 803A of the Michigan Rules of
Evidence, and Rule 5.972 of the Michigan Court Rules.  Before
determining whether the proposal should be adopted, changed
before adoption, or rejected, this notice is given to afford any
interested person the opportunity to comment on the form or the
merits of the proposal.  We welcome the views of all who wish to
address the proposal or who wish to suggest alternatives. 

          As whenever this Court publishes an administrative
proposal for comment, we emphasize that publication of this
proposal does not mean that the Court will issue an order on the
subject, nor does it imply probable adoption of the proposal in
its present form.

[The present language would be amended as indicated below.]

ICLE Editor's Note:

MRE 803A  HEARSAY EXCEPTION; CHILD'S STATEMENT ABOUT SEXUAL ACT.

A statement describing an incident that included a sexual
act performed with or on the declarant by the defendant or
an accomplice is admissible to the extent that it
corroborates testimony given by the declarant during the
same proceeding, provided:

(1) - (4)      [Unchanged.]

If the declarant made more than one corroborative statement
about the incident, only the first is admissible under this
rule.

A statement may not be admitted under this rule unless the
proponent of the statement makes known to the adverse party
the intent to offer the statement, and the particulars of
the statement, sufficiently in advance of the trial or
hearing to provide the adverse party with a fair opportunity
to prepare to meet the statement.

This rule applies in criminal, [and]
delinquency, and child protective proceedings only.


RULE 5.972     TRIAL

(A) - (B)      [Unchanged.]

(C)  Evidence; Standard of Proof

[(1)]   Except as otherwise provided in these rules,
     the rules of evidence for a civil proceeding and the
     standard of proof by a preponderance of evidence apply
     at the trial, notwithstanding that the petition
     contains a request to terminate parental rights.

[(2)   A statement made by a child under ten years of age
     describing an act of child abuse as defined in section
     2(c) of the child protection law, MCL 722.622(c); MSA
     25.248(2)(c), performed with or on the child, not
     otherwise admissible under an exception to the hearsay
     rule, may be admitted into evidence at the trial if the
     court has found, in a hearing held prior to trial, that
     the nature and circumstances surrounding the giving of
     the statement provide adequate indicia of
     trustworthiness, and that there is sufficient
     corroborative evidence of the act.]

          Staff Comment:  The proposed amendments of MRE
803A and MCR 5.972 would move the so-called "tender years"
exception to the hearsay rule in child-protective proceedings
from the Michigan Court Rules to the Michigan Rules of Evidence.

The staff comment is published only for the benefit of the bench
and bar and is not an authoritative construction by the Court.  
          _____________________________________________

Publication of this proposal does not mean
that the Court will issue an order on the
subject, nor does it imply probable adoption
in its present form.  Timely comments will be
substantively considered, and your assistance
is appreciated by the Court.                 
          _______________________________________________

          A copy of this order will be given to the secretary of
the State Bar and to the State Court Administrator so that they
can make the notifications specified in MCR 1.201.  Comments on
this proposal may be sent to the Supreme Court clerk within 60
days after it is published in the Michigan Bar Journal.  When
filing a comment, please refer to our file No. 98-18.