Hall v. State

For the Court:

I.

Today’s appeal implicates the grand form of our government. The making of rules of evidence to govern trials in our courts is a function at the core of the judicial power. We have exercised that power by adopting the Mississippi Rules of Evidence, effective January 1, 1986. While the ink was yet wet on the pages of our rules book, the legislature purported to change and enlarge upon the Rules of Evidence by enacting the Evidence of Child Sexual Abuse Act. The two clash here, as substantial hearsay evidence presented in prosecution of this child sexual battery case has been held admissible under the statute, although excludable under the rules.

The legislature has enacted upon a matter at the core of the judicial power. In such circumstances the statute should not be enforced. The integrity of the judicial department of the government of this state demands no less.

II.

A.

Michael A. Hall, thirty-six years of age at the time of trial in July of 1986, was married to Sue Ann Strong Hall in 1971. The Halls had two children: Keith, born March 3, 1974, and Chad, born June 2, 1979. Hall and his wife were divorced in February of 1981 and Sue Ann Hall was given custody of the children.

In September, 1983, Sue Ann, by agreement, allowed the boys to go and live with their father, who at the time was living in a trailer in Edwards, Mississippi. Shortly thereafter, Hall moved to Vicksburg taking the boys with him. The next several years saw little stability in the lives of the two boys as they bounced back and forth between Hall and his ex-wife, between Warren and Hinds Counties.

At some time in 1983 the Hinds County Department of Public Welfare received a complaint that Chad was an abused child. In April of 1985, Debbie Graham, a social worker of the Hinds County DPW received a complaint that Chad was being sexually abused by his father. Shortly thereafter, Graham obtained an order from the Youth Court of Hinds County that Keith and Chad be removed from Hall's custody, and they were taken to Christians In Action Center, a children’s emergency shelter.

At the shelter the children were interviewed by Brenda Chance, a social worker specializing in children’s therapy. Chad was also physically examined by Dr. Julia Sherwood, a pediatrician. Collectively, the findings of Graham, Chance and Dr. Sherwood suggested that Hall was engaged in a continuous course of sexual abuse of his then five-year-old son.

B.

These proceedings were commenced on October 29, 1985, when the Grand Jury of the Second Judicial District of Hinds County, Mississippi, formally charged Michael A. Hall with sexual battery upon his son, Chad. See Miss.Code Ann. § 97-3-95 (1985). The indictment specifically charged that between August 1, 1984, and September 30, 1984 — later amended to November 15, 1984 — Hall feloniously engaged in the sexual battery by penetrating Chad’s anal opening with his penis.

On July 10, 1986, the prosecution sought to clear the way for use at trial of hearsay versions of Chad’s complaints against his father, moving for an order declaring Chad “unavailable” as a witness, and citing the provisions of the recently enacted Evidence of Child Sexual Abuse Act, Miss.Laws, ch. 345 (1986), codified as Miss.Code Ann. §§ 13-1-401, et seq. (Supp.1988). The motion recited that there was a substantial likelihood that Chad would experience traumatic or emotional distress if he were required to testify against his father in open court. Chad was examined and evaluated by Dr. Charleton E. Stanley, Ph.D., a psychologist, and by Kimberly Lee McAlister, a psychology technician, each of whom testified in support of the prosecution’s motion. Prior to trial the court held that Chad was unavailable. Miss.Code Ann. § 13 — 1—4Ó3(l)(c)(ii) (Supp.1988). The net ef-feet of this ruling, if the statute be enforceable, was that out-of-court statements Chad had made to Graham and Chance would be admissible as evidence supporting the charge laid in the indictment.

The case was called for trial on July 21, 1986. The prosecution first presented evidence through Keith, Chad’s ten-year-old brother, that Hall had indeed sexually abused Chad. Graham and Chance were called, each of whom reported to the jury conversations had with Chad. The essence of these conversations was statements by Chad describing a course of sexual acts his father performed on him. Beyond this hearsay evidence, Graham and Chance were each allowed to give an opinion that Chad was telling the truth when he said Hall had sexually abused him. Chance was also allowed to give an opinion that Chad exhibited behavior characteristic of a sexually abused child.

The defense consisted primarily of Hall’s denials of any improper or illegal sexual acts toward Chad. The defense called Dr. Daniel Cox, a psychologist, who questioned the credibility of the opinions offered by the prosecution experts.

At the conclusion of all of the evidence, the jury returned a verdict that Hall was guilty of sexual battery as charged in the indictment. The Circuit Court sentenced Hall to a term of twenty-five years imprisonment in the custody of the Mississippi Department of Corrections. Following denial of the usual post-trial motions, Hall perfected his appeal to this Court and presents a veritable plethora of assignments of error.

III.

A.

Our outcome determinative question concerns the admissibility of the extensive testimony of the two social workers, Debbie Graham and Brenda Chance, of statements Chad made to them. Eschewing the child’s graphics, Graham and Chance had Chad describing the ways in which his father had sexually abused him. Each of these statements is garden variety hearsay. Each is a statement made by another, Chad, to the respective witnesses, Graham and Chance, offered by the prosecution to convince the jury that Hall did to Chad what Chad said he did. See Rule 801(c), Miss.R.Ev.

B.

We first consider our Rules of Evidence, for if the testimony at issue is there found admissible our inquiry is at an end, subject only to Hall’s Confrontation Clause challenge. As we have said, what Chad told Graham and Chance, when relayed to the jury by Graham and Chance, is hearsay. “Hearsay is not admissible except as provided by law.” Rule 802, Miss.R.Ev. [Emphasis supplied] We search for a valid law under which such hearsay may be admitted.

Rule 803, Miss.R.Ev., itemizes twenty-three specific exceptions to the hearsay rule. Evidence falling within one of these exceptions is admissible, notwithstanding that it be hearsay or that the declarant, Chad, be available to be called as a witness. Each of the statements Chad is said to have made to Graham or Chance described events said to have occurred weeks, if not months, earlier. The prosecution gains no profit from the excited utterance exception, Rule 803(2), Miss.R.Ev., nor do we have a statement of Chad’s then existing state of mind, for these are “statement[s] of memory or belief to prove ... fact[s] remembered ...” Rule 803(3), Miss. R.Ev. Nor are these statements made for purposes of medical diagnosis or treatment. Rule 803(4), Miss.R.Ev. Without doubt, Graham and Chance sought to aid and counsel Chad, but neither are they physicians nor may the services they rendered be stretched into the world of the medical. See Cassidy v. State, 74 Md.App. 1, 536 A.2d 666, 678-89 (1988); contrast State Farm Mutual Automobile Insurance Co. v. Gregg, 526 So.2d 554, 557-58 (Miss.1988). No other specific exception within Rule 803 is remotely applicable.

Rule 803(24), Miss.R.Ev., furnishes a dynamic catchall. Hearsay not covered under any of the Rule’s twenty-three specific exceptions may be admitted if it has “equivalent circumstantial guarantees of trustworthiness” and if certain other procedural requisites are met. See Cummins v. State, 515 So.2d 869, 873 (Miss.1987). The record before us fails to reflect any “trustworthiness” finding by the Circuit Court, nor are we prepared to imply one. Moreover, neither we nor the Circuit Court have been presented argument that the statements Chad made to Graham and Chance are “more probative” than “any other evidence which the proponent can procure through reasonable efforts,” See Rule 803(24)(B). Today’s hearsay fails under Rule 803(24), but in so saying we are not saying similar evidence may never be received under this catchall hearsay exception, only that the proponent must satisfy the trial court that each of the requisites of the rule is met. See Cummins v. State, 515 So.2d at 873; State v. Smith, 315 N.C. 76, 90-98, 337 S.E.2d 833, 843-48 (1985). As we must review such matters, the trial court should preserve for the record its findings on each point suggested by the rule. Cf. Peterson v. State, 518 So.2d 632, 636 (Miss.1987).

Rule 804 provides further exceptions to the hearsay rule. These are available to a party only where the declarant is unavailable as a witness. Chad, of course, was physically present within the jurisdiction. He simply was not called. Rule 804(a) legally defines “unavailability as a witness.” We have considered carefully each of the five circumstances of “unavailability” provided in Rule 804 and find it inescapable that within the rule Chad was “available”. The prosecution finds no aid or comfort in Rule 804’s additional hearsay exceptions.

C.

These things said, we can but conclude that nothing in the Mississippi Rules of Evidence affords legal undergirding for Graham and Chance to tell the jury what Chad said. The State argues, however, that the Rules of Evidence are not the only form of law which may supply the rule it seeks. The State points to the Evidence of Child Sexual Abuse Act, Miss.Code Ann. §§ 13-1-401, et seq. (Supp.1988), effective July 1, 1986 — some three weeks before trial. Section 13-1-403 of that statutory enactment does indeed appear to suggest admissibility. That section defines “unavailability” quite otherwise than Rule 804(a), providing that a child such as Chad is “unavailable” if “the child’s participation in the trial would result in a substantial likelihood of traumatic emotional or mental distress.” The record reflects expert testimony that, if required to testify in court against his father, Chad would likely experience such an adverse effect.

When Rule 802 declares that hearsay is not admissible “except as provided by law,” it means “except as provided by valid law.” Law is valid only when it emanates from a source having authority to make it. Jones By Jones v. Harris, 460 So.2d 120, 124 (Miss.1984) (Robertson, J., concurring). Our question then is whether the legislature had authority to confer legal validity upon the Evidence of Child Sexual Abuse Act. The question brings us face to face with whether the act invades the constitutionally grounded rule-making authority of this Court and is thus void.

D.

The rules and standards by which evidence is adjudged competent for use in a trial are the concern of the department of government where trials take place: the judicial department. The authority to act upon that concern is similarly situated. That authority has become known as the rule-making power. However problematic the point may once have been, the rule-making power has become established as a permanent part of the authority of the Supreme Court of Mississippi. Still, it is helpful to reflect upon whence we have come.

Twenty years ago Chief Justice W.N. Ethridge, Jr., speaking for the Court in Southern Pacific Lumber Co. v. Reynolds, 206 So.2d 334, 336 (Miss.1968), wrote:

The phrase “judicial power” in Section 144 of the Constitution includes the power to make rules of practice and procedure, not inconsistent with the constitution, for the efficient disposition of judicial business.

Southern Pacific’s more famous offspring, Newell v. State, 308 So.2d 71, 76 (Miss.1975), trumpeted:

The inherent power of this Court to promulgate procedural rules emanates from the fundamental constitutional concept of the separation of powers and the vesting of judicial powers in the courts.

In those early post-Newell days, this Court exercised its rule-making power in addressing specific or isolated problems of procedure and practice. See Haralson v. State, 308 So.2d 222 (Miss.1975) (holding invalid a statute requiring ten days notice to a court reporter in order to perfect an appeal); Scott v. State, 310 So.2d 703 (Miss.1975) (upholding rule requiring pre-filing of proposed jury instructions); Jackson v. State, 337 So.2d 1242, 1253-57 (Miss.1976) (“amending” statutory procedure for sentencing phase of capital murder trials).

On May 26,1981, we crossed the Rubicon as the Court entered its Order Adopting the Mississippi Rules of Civil Procedure. Since that time judicial rule making has proceeded at a dizzying pace. Best known are the two further sets of rules largely patterned after comparable federal rules: the Mississippi Rules of Evidence and, most recently, the Mississippi Supreme Court Rules. Lesser known, but quite significant and equally a product of this Court’s rule-making power, are the Uniform Circuit Court Rules, the Uniform Criminal Rules of Circuit Court Practice, the Uniform Chancery Court Rules, the Uniform County Court Rules and the Uniform Criminal Rules of County Court Practice.

What is important to remember is that this Court’s rulemaking power is a function of our constitution’s command that the three great governmental powers be separate. Miss. Const. Art. I, §§ 1 and 2 (1890). Glenn v. Herring, 415 So.2d 695, 696 (Miss.1982); Newell v. State, 308 So.2d at 76; Matthews v. State, 288 So.2d 714, 715 (Miss.1974). At its heart that doctrine of separation of powers provides that no officer of one department of government may exercise a power at the core of the power constitutionally committed to one of the other departments. Alexander v. State By and Through Allain, 441 So.2d 1329, 1345, 1346 (Miss.1983).

The powers vested in the judicial department and in this Court have been broadly declared. Miss. Const. Art 6, § 144 (1890) is primary.

The judicial power of the state shall be vested in a Supreme Court and such other courts as are provided for in this constitution.

The judicial power has been authoritatively read as including the power to make rules of practice, procedure and evidence. That reading of the power is as much a part of our constitution as the doctrine of judicial review, at no point written in so many words but recognized as a core reality within our constitution in an unbroken line of cases from Runnels v. State, Walker (1 Miss.) 146 (1823) through Alexander v. State By and Through Attain, 441 So.2d 1329 (Miss.1983).

We have today the question who sets the criteria by which we assign credibility to evidence so that it ought be considered by a court charged to decide life or liberty. The hearsay rule and its exceptions effect a delicate balance between the twin towering goals of the trial process: truth and fairness. We want our triers of fact to have all evidence that will aid them in the search for truth and at once we want every citizen brought before the bar of justice to have every fair opportunity to test the worth of that evidence. It is no truism but an article of faith that cross-examination is the best tool we have for exposing truth. Lanier v. State, 533 So.2d 473, 488 (Miss.1988); Pulliam v. State, 515 So.2d 945, 947 (Miss.1987); Prewitt v. State, 156 Miss. 731, 735, 126 So. 824, 825 (1930). Admitting evidence that has not been cured in the crucible of cross-examination challenges the soul of the trial process. Deciding when and whether that fateful step may be taken is a matter lying “at the core of the judicial function,” State v. Robinson, 153 Ariz. 191, 197, 735 P.2d 801, 807 (1987).

Historically, admissibility vel non of hearsay evidence has been a subject of exclusive concern of the judiciary of this state. Our rules developed in a common law fashion and date back into the last century. See, e.g., Wells v. Shipp, Walker (1 Miss.) 353 (1829); Melius v. Houston, 41 Miss. 59, 63 (1866); Barclay v. Smith, 36 So. 449 (Miss.1904); Simmons v. State, 105 Miss. 48, 56-57, 61 So. 826 (1913). By order entered September 24, 1985, this Court invoked its rule-making power and declared a codification of the hearsay rule and exceptions thereto. This declaration took the form of the Mississippi Rules of Evidence, the hearsay provisions of which appear in Rules 801-806. Our order implementing these Rules is the ultimate authoritative declaration that the making of rules of evidence, and particularly rules regulating the use of hearsay evidence, lies on judicial turf. As trials are the core activity of the judiciary, so the promulgation of rules for the regulation of trials lie at the core of the judicial power. That being so, it only follows that the officers of neither the legislative nor executive departments of government, acting jointly or severally, had authority to confer legal validity upon the Evidence of Child Sexual Abuse Act. As that act enjoys no legal validity, it may not be regarded “law” within Rule 802, Miss.R.Ev.

E.

To the point at hand, concern for the problems of hearsay evidence belongs to the judiciary historically, functionally, but practicably as well. We are well aware that the matters addressed by the Evidence of Child Sexual Abuse Act have been the subject of nationwide study and controversy. Suffice it to say that the empirical assumptions of the act are hotly disputed by experts in the field. We would regard it precipitous to enact such amendments to our Rules of Evidence without careful empirical investigation and thoughtful reflection.

The social phenomenon of child sexual abuse has been thrust upon society’s collective conscience. Its cruelty has seared that conscience. Society demands vigorous prosecution of those who sexually abuse children, and rightly so. Among the difficulties we encounter en route to such prosecutions are the content of the rules for receiving or rejecting evidence. Few charges are more difficult to defend. Yet we are told that the needs of the victim and the practical realities of such prosecutions require rules of evidence different — and more relaxed — than those we would otherwise enforce.

We are fortunate that we have available the resources and dedication of the Advisory Committee on Rules. That Committee performed the gargantuan task of developing our Mississippi Rules of Evidence which this Court adopted with only a handful of changes. The raison d’etre of that committee is to facilitate the competent study of proposed amendments to our Rules and, in the end, to make recommendations to the Court. That Committee has modest financial resources with which to obtain the services of experts with advice regarding difficult matters just such as that now before us. We take this means of referring to our Advisory Committee the entire subject of evidence of child sexual abuse and charge that with all deliberate speed the Committee study and investigate the matter and, in the end, recommend whether and to what extent we ought amend the Mississippi Rules of Evidence. In the end, the Justices of this Court, with their training, experience and competence, aided by an able staff of law clerks, accept responsibility for adopting or rejecting any amendments that may be suggested.

F.

In view of what we have said above, we may only hold that the Circuit Court erred when it admitted Chad’s out-of-court statements through the witnesses Graham and Chance. There is, to be sure, other evidence in the record suggesting Hall’s guilt. We have the physical findings of Dr. Julia Sherwood suggesting that Chad had experienced unnatural sexual contact. Keith, Chad’s ten-year-old brother, gave particularly damning testimony. Still, we attribute great impact to Chance’s telling the jury the childlike but picturesque story Chad told her. And the same of Graham.

Our question becomes whether receipt of this evidence denied Hall a substantial right. Rule 103(a), Miss.R.Ev. Our hearsay rules are designed to secure to both prosecution and defense a fair trial. Where, as here, substantial evidence of a material fact has been admitted in violation of our hearsay rules, it follows as the night the day that the defendant has been denied a fair trial. See Ponthieux v. State, 532 So.2d 1239, 1248 (Miss.1988).

The judgment of the Circuit Court that Michael A. Hall stand convicted of the crime of sexual battery and the sentence of imprisonment imposed thereon are reversed and this case is remanded to the Circuit Court for a new trial.

G.

Two further points merit note.

The effect of our decision is that the Circuit Court erred as well in denying Hall’s motion for a new trial. Hall will now get that new trial. When we reverse and remand for a new trial, both sides begin anew, no balls, no strikes. Except as we may otherwise direct, all issues are for trial ab initio. In the present context, the prosecution may have the opportunity to offer again Graham’s and Chance’s testimony and to attempt to qualify that testimony for admissibility under Rule 803(24), Miss.R.Ev.

We recognize that Hall has this day tendered to us numerous issues above and beyond that considered and decided above. Some of these issues are difficult or important, or both. At times where such issues are likely to recur at retrial, we give our views for the guidance of the court and counsel. What we have said above is adequate to adjudge this appeal. The bite is quite as much as we this day ought chew.

REVERSED AND REMANDED FOR A NEW TRIAL.

ROY NOBLE LEE, C.J., PRATHER, SULLIVAN, ANDERSON and ZUCCARO, JJ., concur.

DAN M. LEE, P.J., concurs in result only.

HAWKINS, P.J., dissents by separate written opinion.

PITTMAN, J., not participating.

. Admissibility of opinion testimony (a) that a child exhibits the characteristics of a sexually abused child and (b) that the child is telling the truth are hotly disputed legal issues we find it unnecessary to address or decide today. Cf. House v. State, 445 So.2d 815, 822 (Miss.1984).

. Graham holds a bachelor’s degree in sociology and has nine years experience as a social worker associated with the Hinds County Department of Public Welfare. Her principal experience is in the area of child sexual abuse problems.

.Chance holds a master's degree in clinical social work and works as a child therapist in a clinical setting, with psychiatrists and psychologists. She has been associated with the Hinds County DPW, the Jackson Mental Health Center, and is now in private practice.

. For reasons which will become apparent below, we find it unnecessary to consider or decide whether admission of this hearsay evidence violated rights secured to Hall (a) by Article 3, Section 26 of the Mississippi Constitution of 1890 or (b) by the Sixth and Fourteenth Amendments to the Constitution of the United States.

. Rule 803(2), Miss.R.Ev., reads:

(2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

. Rule 803(3), Miss.R.Ev., reads:

(3) Then Existing Mental, Emotional, or Physical Condition. A statement of the de-clarant's then existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

. Rule 803(4) reads:

(4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. The official comment to Rule 803(4) reads:

(4) Statements for Purposes of Medical Diagnosis or Treatment. Rule 803(4) represents a deviation from previous Mississippi practice in three significant ways. First, Rule 803(4) permits statements of past symptoms as well as present symptoms. Second, the rule allows for statements which relate to the source or cause of the medical problem whereas Mississippi courts formerly disallowed such statements. See Field v. State, 57 Miss. 474 (1879) and Mississippi Cent. R.R. Co. v. Turnage, 95 Miss. 854, 49 So. 840 (1909), for prerule Mississippi law. While statements about cause are permissible, statements concerning fault are still excludable. Third, the statements may be made either to a physician or to diagnostic medical personnel. Mississippi’s pre-rule practice distinguished between narrative statements made to a treating physician and those made to an examining physician who was retained for use as an expert witness in the litigation. Statements made to the former were generally admissible, whereas no statements made to the latter were admissible. See Mississippi Cent. R.R. Co. v. Turnage, 95 Miss. 854, 49 So. 840 (1909). Rule 803(4) eliminates that distinction and permits statements made both for treating and diagnostic purposes. Under Rule 803(4) the statement need not be made to a physician. This is consistent with traditional Mississippi practice.

. We are aware that some courts have played fast and loose with rules worded as’ our Rule 803(4) and have allowed the hearsay statements of child abuse victims to be admitted through the testimony of mental health professionals under the purported authority of that rule. United States v. Renville, 779 F.2d 430, 436-37 (8th Cir.1985); State v. Nelson, 138 Wis.2d 418, 406 N.W.2d 385, 390-91 (1987). We find such efforts disingenuous and resist the temptation to elasticize our Rule 803(4) hearsay exception beyond the diagnosis and treatment of matters medical. Cassidy v. State, 536 A.2d at 678-89. (noting in the context of child sexual abuse that the exception is being stretched “beyond its breaking point."); J. Weinstein & M. Berger, Evidence § 803(4)[1] (1984); C. McCormick, Law of Evidence at 840 n. 8 (3d ed. 1984). Whether Rule 803(4) should be amended to include such evidence is a matter that ought first be considered by the Advisory Committee on Rules. See Part III(E) below.

. Rule 803(24) reads:

(24) Other Exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

The official comment to Rule 803(24) reads:

(24) Other Exception. The rule reflects the realization that the law is not stagnant. As the FRE Advisory Committee’s Note indicates, it would be presumptuous to assume that the contemporary legal community has enumerated every single hearsay exception which possibly could exist. The exceptions are not a closed system, and Rule 803(24) and its counterpart Rule 804(b)(5) allow for the future development of the law when the guarantees of reliability and trustworthiness can be found. While these two rules allow for judicial discretion, they do not permit an unfettered discretion which could ultimately devour the hearsay rule. One of the clearest examples of the circumstances meeting the criteria of rule 803(24) is found in Dallas County v. Commercial Union Assur. Co., 286 F.2d 388 (5th Cir.1961).

. The definition in its entirety reads:

Rule 804. Hearsay Exceptions; Declarant Unavailable

(a) Definition of Unavailability. “Unavailability as a witness” includes situations in which the declarant:

(1) Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement; or

(2) Persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so; or

(3) Testifies to a lack of memory of the subject matter of his statement; or

(4) Is unable to be present or testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(5) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), his attendance or testimony) by process or other reasonable means.

A declarant is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of his statement for the purpose of preventing the witness from attending or testifying.

.Section 13-1-403 in its entirety reads:

§ 13-1-403. Admissibility of child’s out-of-court statements.

(1)An out-of-court statement made by a child under the age of twelve (12) describing any act of child abuse, sexual abuse, or any other offense involving an unlawful sexual act, contact, intrusion or penetration performed in the presence of, with, by or on the declarant child, not otherwise admissible, is admissible in evidence to prove the contents thereof, if:

(a) Such statement is made for the purpose of receiving assistance or advice in order to prevent or mitigate the recurrence of the offenses, or in order to obtain advice about the psychological, social or familial consequences associated with the offenses; and

(b) Such statement is made to a person on whom the child should reasonably be able to rely for assistance, counseling or advice; and

(c) The child either:

(i) Is available to testify; or

(ii) Is unavailable as a witness, provided that there is other corroborative evidence of the abuse or offense. A finding of unavailability except in those situations specified by Rule 804 of the Mississippi Rules of Evidence, shall require a finding by the court, based on the specific behavioral indicators described in § 13-1-411, that the child's participation in the trial would result in a substantial likelihood of traumatic emotional or mental distress; and

(d) The court finds in a hearing conducted outside the presence of the jury that the time, content and circumstances of the statement provide sufficient guarantees of trustworthiness. In determining the trustworthiness of the statement, the court may consider the age and maturity of the child, the nature and duration of the abuse or offense alleged, factors which may detract from the declar-ant’s credibility, information provided about the child’s reliability based on the specific behavioral indicators described in § 13-1-411, or any other factor deemed appropriate.

(2) The defendant shall be notified no later than ten (10) days before trial that an out-of-court statement as described in this section shall be offered in evidence at trial. The notice shall include a written statement of the content of the child’s statement, the time the statement was made, the circumstances surrounding the statement which indicate its reliability and such other particulars as necessary to provide full disclosure of the statement.

(3) The court shall make specific findings of fact, on the record, as to the basis for its ruling under this section.

. In Hosford v. State, 525 So.2d 789, 790 n. 1 (Miss.1988), we acknowledged this as "a question yet to be addressed”.

. See Page, Constitutionalism and Judicial Rule . Making: Lessons From the Crisis in Mississippi, 3 Miss.Coll.L.Rev. 1 (1982); Herbert, Process, Procedure and Constitutionalism: A Response to Professor Page, 3 Miss.Coll.L.Rev. 45 (1982). See also Franck, Practice and Procedure in Mississippi: An Ancient Recipe for Modem Reform, 43 Miss.L.J. 287 (1972).

. Less than two months ago we promulgated new Uniform Chancery Court Rules. See Order entered December 14, 1988.

. Of lesser significance today, Miss. Const. Art. 6, § 146 (1890, as amended), provides:

The Supreme Court shall have such jurisdiction as properly belongs to a court of appeals and shall exercise no jurisdiction on matters other than those specifically provided by this Constitution or by general law.

See also Miss.Code Ann. § 9-3-9 (Supp.1988). It goes without saying that this Court seeks to exercise no authority except that within the judicial power.

.This power has been recognized in Miss.Code Ann. § 9-3-61 (Supp.1988). Legislative attempts to limit the rule making power, see, e.g., Miss.Code Ann. § 9-3-71 (Supp.1988), are, of course, of no force or effect.

. For a summary of the judicial development of the hearsay rule in this state, and exceptions to that rule, see Goodman, Hearsay Evidence, published in 23rd Annual Mississippi Law Institute: Evidence 65-134 (1968). 0

. See Order In The Matter of the Adoption of the Mississippi Rules of Evidence, entered November 24, 1985, as reproduced in Mississippi Rules of Court 240-41 (1988).

. Particularly articulate spokesmen for a view of judicial rule-making authority in the present context are Vice Chief Justice Stanley G. Feldman of the Arizona Supreme Court, State v. Robinson, 153 Ariz. 191, 735 P.2d 801, 806-08 (1987), and Justice John I. Purtle of the Arkansas Supreme Court, Smart v. State, 297 Ark. 324, 761 S.W.2d 915, 917 (1988) and Cogburn v. State, 292 Ark. 564, 732 S.W.2d 807, 813, 817 (1987) (Purtle, J., concurring).

.This is not to say that the judiciary should give the back of its hand to every legislative enactment arguably encroaching upon its rule-making turf. Deference ought to be given such legislative expressions, not out of obligation but comity, not out of accession to authority, but in respect for the legislature as that branch of government closest to the people whom all branches have been created to serve. Where the invasion is minor and where otherwise the legislature has enacted upon a matter well within legislative authority, we may adopt the legislated rule as our own. See Hudspeth v. State Highway Commission of Mississippi, 534 So.2d 210, 213 (Miss.1988). For when all is said and done, law is not an end, but a means to the end of a society in which we should all want to live, and legislatures are one structure democratic theory has devised for identifying the shape of that popularly desired society.

For example, Miss.Code Ann. §§ 13-1-261, et seq. (1972) sets forth a procedure for examining a judgment debtor. That statute enjoys legal validity, however, not because it has been enacted by the legislature but because this Court has declared in Rule 69(b), Miss.R.Civ.P., that a judgment creditor may proceed "as provided by statute.” H & W Transfer and Cartage Service, Inc. v. Griffin, 511 So.2d 895, 900 (Miss.1987). See also First Mississippi National Bank v. KLH Industries, Inc., 457 So.2d 1333, 1337-38 (Miss.1984) (garnishment statutes remain enforceable by virtue of Rule 69(a), Miss.R.Civ.P. Quite arguably the Mississippi Uniform Post-Conviction Collateral Relief Act, codified as Miss.Code Ann. §§ 99-39-1, et seq. (Supp.1988) invades our rule-making power — indeed, Section 99-39-3 blatantly announces that it "supersedes Rule 8.07 of the Mississippi Uniform Rules of Circuit Court Practice." But see, Reynolds v. State, 521 So.2d 914, 915 (Miss.1988). The act may be enforced, however, not because of any validity given it but legislative flat, but because this Court has so provided by rule. See Rule 22, Miss.Sup.Ct.Rules (1988).

Beyond this, there are a wide variety of legislative enactments on points of practice and procedure that we continue to use. See, e.g., Miss. Code Ann. § 11-7-123 (1972) describing a procedure for obtaining a continuance, McFadden v. State, 408 So.2d 476, 478-79 (Miss.1982); and Miss.Code Ann. § 99-19-101(7) (Supp.1988) providing certain findings a jury must make before it may impose a death sentence, Pinkton v. State, 481 So.2d 306, 309 (Miss.1985). And we will continue to use such rules, though we did not think of them, subject always to our responsibility when appropriate to exercise the judicial rule-making power.

. See, e.g., McCord, Expert Psychological Testimony About Child Complaints In Sexual Abuse Prosecutions, 77 J. of Crim.Law & Criminology 1 (1986); Cohen, The Unreliability of Expert Testimony on the Typical Characteristics of Sexual Abuse Victims, 74 Geo.L.J. 429 (1985); Graham, The Confrontation Clause, the Hearsay Rule, and Child Sexual Abuse Prosecution: The State of the Relationship, 72 Minn.L.Rev. 523 (1988); Serrato, Note: Expert Testimony in Child Sexual Abuse Prosecutions: A Spectrum of Uses 66 B.U.L.Rev. 155 (1988); Lacayo, "Sexual Abuse or Abuse of Justice?”, Time, May 11, 1987, at 49; Kelly, Comment: Legislative Responses to Child Sexual Abuse Cases: The Hearsay Exception and the Videotape Deposition, 34 Cath.U.L. Rev. 1021 (1985); "Studies Find Sexual Abuse of Child is Widespread”, New. York Times, May 13, 1982, at C1, Col. 1; “Child Sexual Abuse: What Your Children Should Know” (PBS, Sept.1984); "The Sexual Abuse of Children" (NBC-TV, Aug. 25, 1984); The Testimony of Child Victims in Sex Abuse Prosecution: Two Legislative Innovations, 98 Harv.L.Rev. 806 (1985).

. The Advisory Committee on Rules was created by Order of this Court entered November 9, 1983. Its membership includes a broad cross-section of the bench, bar and academia. It is not to be confused with the now defunct Advisory Committee on Rules of Civil Practice and Procedure. See Miss.Code Ann. § 9-3-65 (Supp.1988).

. See notes 1, 4 and 8, supra. Following any such recommendation, our customary procedure requires that we publish any such proposed rule changes and accept public comment before taking final action. The course we followed in Hudspeth is the exception, and not the rule.

. When, after considering the outcome determinative issue, we go forward and "decide” issues likely to recur on retrial, we are, in effect, advising the trial court, “if, upon the new trial, the evidence and procedural posture are substantially the same as at the first trial, then you should decide the issue as we here advise.” But this does not change the fact that the new trial is a trial de novo in every sense of the word. Johnson v. State, 529 So.2d 577, 579 (Miss.1988); West v. State, 519 So.2d 418, 425 (Miss.1988). See, e.g., Gibson v. State, 503 So.2d 230 (Miss.1987). On Gibson’s first appeal, we reversed Gibson v. State, 458 So.2d 1046 (Miss.1984), holding that the prosecution had failed to lay a proper foundation for introduction of the results of a blood alcohol test. The incident at issue had occurred on September 19, 1981. Authorities had used a blood collection kit marked with an expiration date of December, 1980. This fact was not explained. At Gibson’s new trial all began anew and the prosecution satisfactorily explained "that the expired kit’s contents had no effect on the results of the blood test.” Gibson II, 503 So.2d at 232. See generally Weems v. American Security Insurance Co., 486 So.2d 1222, 1226 (Miss.1986) (when Supreme Court reverses and remands for a new trial, the case is to be tried de novo on all issues); Miller v. Watson, 467 So.2d 672, 674 (Miss.1985) (same).