Child Abuse and the Law - Hearsay Evidence
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The Hearsay Rule
Together with the Sixth Amendment Confrontation Clause, the hearsay rule is intended to prevent the conviction of defendants by reports of evidence offered by someone other than the witness. With a few exceptions, hearsay is inadmissible as testimony because the actual witness cannot be cross-examined and his or her demeanor cannot be assessed for credibility of testimony. Whether or not to accept the hearsay evidence from a child's reports of abuse to a parent has been frequently debated.
Some Exceptions to the Hearsay Rule
Some courts consider spontaneous declarations or excited utterances made by a person right after a stressful experience as reliable hearsay. Courts also allow statements individuals have made to physicians and other medical personnel for purposes of medical treatment or diagnosis. In this case, it is generally assumed that people who consult with physicians are seeking treatment and, therefore, tell the physicians the truth about their illness.
Hearsay evidence is especially important in cases of child sexual abuse. Cases often take years to come to trial, by which time a child may have forgotten the details of the abuse or may have made psychological progress in dealing with the trauma. The parents may be reluctant to plunge the child back into the anxious situation suffered earlier. Hearsay evidence can be crucial in determining the validity of sexual abuse charges in custody cases. In these cases juries need to know when the child first alleged abuse, to whom, under what circumstances, and whether the child ever recanted.
The Supreme Court Rules on Hearsay Evidence: Ohio v. Roberts
In 1980 the U.S. Supreme Court, in a case that was not about child abuse, established the basis for permitting hearsay evidence: the actual witness has to be unavailable and his or her statement has to be reliable enough to permit another person to repeat it to the jury (Ohio v. Roberts, 448 U.S. 56 ). Many judges have chosen to interpret unavailability on physical standards rather than the emotional unavailability that children who are afraid to testify may exhibit. Furthermore, legal experts insist that the reliability of a statement does not refer to whether the statement appears to be truthful, but only that it has sufficient reliability for the jury to decide whether it is true.
WHITE V. ILLINOIS. In White v. Illinois (502 U.S. 346 ), the U.S. Supreme Court dealt with both the hearsay rules and the Confrontation Clause of the Sixth Amendment. Randall White was charged with sexually assaulting a four-year-old girl, S. G., in the course of a residential burglary. The child's screams attracted the attention of her babysitter, who witnessed White leaving the house. S. G. related essentially the same version of her experience to her babysitter, her mother (who returned home shortly after the attack), a police officer, an emergency room nurse, and a doctor. All of these adults testified at the trial. S. G. did not testify, being too emotional each time she was brought to the courtroom.
White was found guilty and appealed on the grounds that, because the defendant had not been able to face the witness who had made the charges of sexual assault, her hearsay testimony was invalid under the Confrontation Clause. The high court, in a unanimous decision, rejected linking the Confrontation Clause and the admissibility of hearsay testimony.
S. G.'s statements fulfilled the hearsay requirements in that they were either spontaneous declarations or made for medical treatment and, therefore, in the eyes of the Supreme Court, "may justifiably carry more weight with a [court] than a similar statement offered in the relative calm of a courtroom." The Supreme Court concluded that whether the witness appeared to testify had no bearing on the validity of the hearsay evidence. Furthermore, because the hearsay statements in this case fit the "medical evidence" and "spontaneous declaration" exceptions, its decision upheld hearsay evidence as valid.
BUGH V. MITCHELL. Richard Bugh was convicted of sexually molesting his four-year-old daughter in 1989. He was convicted based on hearsay testimony. The girl had told four people in out-of-court statements about the sexual abuse: her mother, a counselor, a county social services supervisor, and a medical doctor. Fourteen years later, having gone through a series of appeals, Bugh petitioned the U.S. Court of Appeals for the Sixth Circuit, challenging the hearsay testimony. Bugh claimed that the trial court's admission of hearsay testimony violated his Sixth Amendment confrontation rights.
On May 13, 2003, in Bugh v. Mitchell (No. 01-3417), the appeals court ruled that the hearsay testimonies were admissible. The court added that the defendant's confrontation rights had not been violated because he had the chance to cross-examine the child and the four witnesses. The court rejected Bugh's argument that the child's statements to her mother were not excited utterances because when she told her mother of the alleged molestation "there was no startling event which would have produced nervous excitement." The court noted that the hearsay exception applied in this case, relying on State v. Wagner (508 N.E.2d 164, 167, Ohio Ct. App. ), "in which the Ohio appeals court noted the 'limited reflective powers' of a three-year-old and the lack of motive or reflective capacities to prevaricate the circumstances of an attack, as supporting the trustworthiness of a child's communications to others."
The Court Rejects Hearsay Evidence
In 2003 the Indiana Supreme Court heard an appeal by William Carpenter, who had been found guilty of sexually molesting his three-year-old daughter, A. C., in 2000 (Carpenter v. State, 786 N.E.2d 696). Among the evidence presented at the 2000 trial were out-of-court statements made by the child to her mother and grandfather. Relying on its decision in Pierce v. State (677 N.E.2d 39, Ind. ), the state supreme court noted that in Pierce, the child's statements were spontaneous and took place soon after the alleged molestation. On the other hand, in Carpenter's case, the state could not establish the precise time of alleged molestation or whether the child's statements occurred immediately after the alleged molestation. The court observed:
We find that the testimony recounting A. C.'s statements to her mother and grandfather and her videotape interview failed to exhibit sufficient indications of reliability as the protected person statute requires because of the combination of the following circumstances: there was no indication that A. C.'s statements were made close in time to the alleged molestations, the statements themselves were not sufficiently close in time to each other to prevent implantation or cleansing, and A. C. was unable to distinguish between truth and falsehood.
Crawford v. Washington Overrules Ohio v. Roberts
On March 8, 2004, the U.S. Supreme Court, in Crawford v. Washington (No. 02-9410), overturned its 1980 ruling in Ohio v. Roberts, which held that the Sixth Amendment right of confrontation does not prohibit hearsay evidence if a judge deems that evidence reliable and trustworthy. Crawford was not a child abuse case. In 1999 Michael Crawford stabbed a man who allegedly attempted to rape his wife. During the trial the state introduced an out-of-court, tape-recorded statement to police by his wife, who was present during the assault. The state wanted to show that Crawford did not stab the man in self-defense as he had told police. His wife did not testify during the trial because of Washington's spousal privilege, which prohibits one spouse from testifying against the other without the other's consent. The trial court found the wife's statement to be reliable and trustworthy and accepted it as evidence. Crawford was convicted of assault with a deadly weapon.
Upon Crawford's appeal, the Washington Court of Appeals reversed the trial court ruling. The Washington Supreme Court subsequently reinstated the conviction. The U.S. Supreme Court agreed to hear the case to determine whether the state's use of the wife's statement violated the Confrontation Clause. In reversing the judgment of the Washington Supreme Court, the U.S. Supreme Court held that when a hearsay statement is "testimonial," the Confrontation Clause bars the state from using that statement against a criminal defendant unless the person who made the statement is available to testify at trial, or the defendant had a prior opportunity to cross-examine that person.
Although the U.S. Supreme Court stated, "We leave for another day any effort to spell out a comprehensive definition of 'testimonial,'" it gave as an example of a testimonial statement that which is made during police interrogations (for example, the pretrial statement of Crawford's wife). The Supreme Court added that their Crawford ruling holds regardless of whether or not the statement is a hearsay exception or is judged reliable, thus overruling Ohio v. Roberts. The case was sent back to the Washington Supreme Court for further proceedings. Although Crawford was not a child abuse case, some experts believe it will have implications in child abuse cases.
A CALIFORNIA COURT INTERPRETS CRAWFORD V. WASHINGTON. In a California case defendant Seum Sisavath was convicted, among other things, of several child sexual abuse charges involving two sisters, ages four and eight. The younger child was not at trial because she was found incompetent to testify. Based on the hearsay testimonies of an officer who responded to the mother's call to police and of an investigator from the district attorney's office who attended a videotaped interview of the younger child, the court admitted the statements. Sisavath was found guilty of most of the sexual charges and sentenced to thirty-two years to life. The defendant petitioned the California Court of Appeals.
While the appeal was pending, the U.S. Supreme Court decided Crawford v. Washington. Consequently, the appeals court ruled that the "testimonial" hearsay statements against the defendant were inadmissible under Crawford because they violated the Confrontation Clause of the Sixth Amendment. Since the U.S. Supreme Court did not define "testimonial," the appeals court observed,
It is more likely that the Supreme Court meant simply that if the statement was given under circumstances in which its use in a prosecution is reasonably foreseeable by an objective observer, then the statement is testimonial…. We have no occasion here to hold, and do not hold, that statements made in every MDIC [Multidisciplinary Interview Center] interview are testimonial under Crawford. We hold only that Victim 2's [younger victim's] statements in the MDIC interview in this case were testimonial. [The MDIC is a facility specially designed and staffed for interviewing children suspected of being victims of abuse.]