Statutes | Lummi Nation Code of Laws Title 5 Chapter 5.09C Subchapter 5.09C.04 ยง 5.09C.04.030 | 2020
(a) With the legislative purpose in mind to find the truth while allowing a child protection from trauma to the extent that is constitutionally permitted, the Lummi Tribal Court may adopt state or federal rules of procedure regarding the admissibility of evidence, including, but not limited to, hearsay, video-taped depositions, or testimony by closed-circuit television. The LIBC declares that protection of child witnesses in sexual assault and physical abuse cases is a substantial and compelling interest of the Lummi Nation. Sexual and physical abuse cases are some of the most difficult cases to prosecute, in part because frequently no witnesses exist except the child victim. When abuse is prosecuted, a child victim may suffer serious emotional and mental trauma from exposure to the abuser or from testifying in open court. In rare cases, the child is so traumatized that the child is unable to testify at trial and is unavailable as a witness or the childs ability to communicate in front of the jury or defendant is so reduced that the truthseeking function of trial is impaired. In other rare cases, the child is able to proceed to trial but suffers long-lasting trauma as a result of testifying in court or in front of the defendant. The creation of procedural devices designed to enhance the truth-seeking process and to shield child victims from the trauma of exposure to the abuser and the courtroom is a compelling tribal interest.
(b) A statement made by a child when under the age of 12 describing any act of sexual contact performed with or on the child by another or describing any attempted act of sexual contact with or on the child by another, or any other act of abuse or neglect against the child, not otherwise admissible by this Code, a statute, Lummi Court Rules, Federal Rules of Evidence (including hearsay exceptions), or any other set of rules agreed to by the parties or designated by the Court, is admissible as evidence in any criminal and civil proceedings, including juvenile offense adjudications, in the courts of the Lummi Nation when:
(1) the Court finds, in a hearing conducted prior to trial, or at a minimum outside the presence of the jury, that the time, content,
and circumstances of the statement provide sufficient indicia of reliability and
(2) the child either:
(A) testifies at the proceedings or
(B) is unavailable as a witness provided, that when the child is unavailable as a witness, such statement may be admitted only if:
(i) there is some corroborative evidence of the act and
(ii) the party against whom the statement is admitted has had an opportunity to cross-examine the witness.
(c) The defendant shall be given notice of the intent to use these statements no later than 10 days before trial. If defective notice under this Section is provided to the opposing party, the Court shall conduct a hearing to determine whether the opposing party has been prejudiced. If no prejudice is found, such statements may be admitted into evidence. The notice shall include:
(1) a written statement of the content of the childs statement
(2) the time and place at which the statement was made
(3) the circumstances surrounding the statement which indicate its reliability and
(4) such other particulars as may be necessary to provide full disclosure of the statement.
(d) The Court shall make specific findings of fact, on the record, as to the basis for its ruling under this Subsection.