ROBERTSON, JUSTICE, FOR THE COURT:
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.
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.
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. 13-1-403 (1)(c)(ii) (Supp.1988). The net effect 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. *fn1
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 ...