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STATE OF MAINE
_____
IN THE YEAR OF OUR LORD
TWO THOUSAND TWENTY-THREE
_____
S.P. 324 - L.D. 765
An Act to Establish an Exception to the Hearsay Rule for Forensic Interviews
of a Protected Person
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 16 MRSA §358 is enacted to read:
§358. Recordings of protected person
1. Definitions.
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.
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. Exception to hearsay rule.
rule under the Maine Rules of Evidence, Rule 802, for the recording of a forensic interview
of a protected person. A party seeking to offer all or a portion of a recording of a forensic
interview of a protected person into evidence shall file a motion in limine. After providing
APPROVED
JUNE 16, 2023
BY GOVERNOR
CHAPTER
193
PUBLIC LAW Page 2 - 131LR0999(05)
all parties the opportunity to be heard on the motion, the court shall determine whether, in
addition to satisfying all of the other requirements of this section, the following criteria
have been met:
A. The interview was conducted by a forensic interviewer;
B. Statements made by the protected person during the forensic interview were not
made in response to suggestive or leading questions;
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 admissibility;
G. In a criminal matter, the protected person is available to testify or be cross-examined
by any party and is called as a witness by the party offering the recording in evidence
immediately following the presentation of the recording to the trier of fact and made
available for cross-examination, unless all other parties expressly waive the
requirement that the witness testify; and
H. The portion of the interview to be admitted in evidence is relevant pursuant to the
Maine Rules of Evidence, Rule 401, and is not otherwise inadmissible under the Maine
Rules of Evidence.
In the event that the protected person was the subject of more than one forensic interview,
the exception to hearsay established under this subsection does not apply to statements
from more than one forensic interview related to the same event or incident.
4. Recordings of protected persons preserved.
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.
Sec. 2. 22 MRSA §4019, sub-§1, ¶B,
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 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 Page 3 - 131LR0999(05)
13, subchapter 1. Information Except for recordings of forensic interviews, which are
governed by subsection 9-A, 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 adult and 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.
govern recordings of forensic interviews used or developed in providing services under this
section. 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 adult and 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. Page 4 - 131LR0999(05)
(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.