{"data":{"id":"us-ky/kre-804a","jurisdiction":"us-ky","citation":"KRE 804A","heading":"Hearsay exceptions: testimony by child victim declarant not reasonably","body":"obtainable\n(a) An out -of-court statement made by a child with a physical, mental, emotional, or\ndevelopmental age of twelve (12) years or less at the time of trial or hear ing\ndescribing any sexual act performed by, with, or on the child or describing any act\nof physical violence directed against the child is not excluded as hearsay under KRE\n802 if all of the following apply:\n(1) The court finds that the totality of the cir cumstances surrounding the making\nof the statement provides particularized guarantees of trustworthiness. In\nmaking its determination of the reliability of the statement, the court shall\nconsider all of the circumstances surrounding the making of the state ment,\nincluding but not limited to spontaneity, the internal consistency of the\nstatement, the mental state of the child, the child's motive or lack of motive to\nfabricate, the child's use of terminology unexpected of a child of similar age,\nthe means by which the statement was elicited, and the lapse of time between\nthe act and the statement;\n(2) Either:\n(A) The child testifies but his or her testimony does not include information\ncontained in the out-of-court statement; or\n(B) The child's testimony is not  reasonably obtainable by the proponent of\nthe statement and there is corroborative evidence of the act that is the\nsubject of the statement;\n(3) The primary purpose of the child's statement was not to create an out -of-court\nsubstitute for trial testimony; and\n(4) At least ten (10) days before the trial or hearing, a proponent of the statement\nhas notified all other parties in writing of the content of the statement, the time\nand place at which the statement was made, the identity of the witness who is\nto testify about the statement, and the circumstances surrounding the\nstatement that are claimed to indicate its trustworthiness.\n(b) (1) The child's testimony is \"not reasonably obtainable by the proponent of the\nstatement\" under subsection (a)(2)(B) of this  rule if one (1) or more of the\nfollowing apply:\n(A) The child claims a lack of memory of the subject matter of the\nstatement;\n(B) The court finds:\n(i) The child is absent from the trial or hearing;\n(ii) The proponent of the statement has been unable to procure the\nchild's attendance or testimony by process or other reasonable\nmeans despite a good-faith effort to do so; and\n(iii) It is probable that the proponent would be unable to procure the\nchild's testimony or attendance if the trial or hearing were delayed\nfor a reasonable time; or\n(C) The court finds:\n(i) The child is unable to testify at the trial or hearing because of:\na. Death;\nb. Physical or mental illness; or\nc. Infirmity, including the child's inability to communicate\nabout the offense because of fear or a similar reason; and\n(ii) The illness or infirmity would not improve sufficiently to permit\nthe child to testify if the trial or hearing were delayed for a\nreasonable time.\n(2) The proponent of  the statement has not established that the child's testimony\nor attendance is not reasonably obtainable if the child's claim of lack of\nmemory, absence, or inability is due to the procurement or wrongdoing of the\nproponent of the statement for the purpose  of preventing the child from\nattending or testifying.\n(c) The court shall make the findings required by this rule on the basis of a hearing\nconducted outside the presence of the jury and shall make findings of fact, on the\nrecord, as to the bases for its ruling.\n(d) If any provision of this rule should conflict with Article VIII of these rules, this rule\nshall prevail.","path":["KENTUCKY RULES OF EVIDENCE ----- Legislative Research Commission Note (7/1/92). Although denominated \"rules,\" the elements of the Kentucky Rules of Evidence were enacted as statutes by the Kentucky General Assembly. See 1990 Ky. Acts ch. 88; 1992 Ky. Acts ch. 324. Originally codified as KRS Chapter 422A in 1990, the Kentucky Rules of Evidence were renumbered by the Reviser of Statutes, effective July 1, 1992, pursuant to 1992 Ky. Acts ch. 324, sec. 34. By an order dated May 12, 1992, the Kentucky Supreme Court \"adopt[ed] so much of the Kentucky Rules of Evidence as enacted by HB 241 [1992 Ky. Acts ch. 324] as comes within the rule making power of the Court, pursuant to Ky. Const. sec. 116.\""],"source_url":"https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=47941","current_through":"Includes enactments through the 2026 Regular Session","vintage":"09/05/2026","retrieved_at":"2026-09-05T21:00:11Z","sha256":"68b3ca43f258e13fa5a7f3a4e0b1733591a02d4b74ef32c4c1eed392f2e76391","source_id":"us-ky","stale":false,"prev":"us-ky/kre-804","next":"us-ky/kre-805"},"notice":"GroundRules: Original legal text. Not legal advice."}