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Provision for Admission of Child Hearsay
The purpose of Utah Criminal Code ¤76-5-411 is to set standards for the admission of a child's hearsay statements, including visually recorded
statements (Utah Rules of Criminal Procedure 15.5) of alleged criminal sexual conduct. The court must make express findings which focus on the trustworthiness and reliability of the out-of-court
statements. These findings are necessary to satisfy federal and state confrontation clause concerns.
According to Utah Code Ann. ¤76-5-411(2), for the court to admit any out-of-court statement into evidence, the judge must consider: "...the age and maturity of the child, the nature and duration
of the abuse, the relationship of the child to the offender, and the reliability of the assertion and of the child."
Constitutional requirements are met if the declarant is available for cross examination, either at trial or by closed-circuit or videotaped testimony. Otherwise, according to Utah R. Crim. P. 15.5
(1)(h), the court must determine that "the child is unavailable as a witness to testify at trial.... '[U]navailable' includes a determination, based on medical or psychological evidence or
expert testimony, that the child would suffer serious emotional or mental strain if required to testify at trial."
In Idaho v. Wright, the United States Supreme Court held that before a court may admit hearsay statements of a child who is unavailable to testify, a requirement of "indicia of
reliability" must be met. This requirement is met if 1) "the hearsay statement 'falls within a firmly rooted hearsay exception,'" or 2) the hearsay is "supported by 'a showing of
particularized guarantees of trustworthiness.'" 497 U.S. 805, 816, quoting Ohio v. Roberts, 448 U.S. 56, 66 (1980).
Firmly rooted exceptions useful in sexual abuse cases include excited utterances, statements for purposes of medical diagnosis or treatment, and prompt report of sexual assault, all circumstances not
capable of duplication in the courtroom.1
According to Wright, if the hearsay does not fall into one of the firmly rooted exceptions, it is presumed to be unreliable and inadmissible, but the presumption may be rebutted by "a
showing of particularized guarantees of trustworthiness." These must "be drawn from the totality of circumstances that surround the making of the statement and that render the declarant
particularly worthy of belief." The hearsay "must be at least as reliable as evidence admitted under a firmly rooted hearsay exception," and "must similarly be so trustworthy that
adversarial testing would add little to its reliability."
Furthermore, evidence that corroborates the truth of the statement is not to be considered as a method of demonstrating trustworthiness. State v. Matsamas, 808 P.2d 1048, 1054 (1991), citing Wright. The Wright Court broadly accepts that if a child's statements are so clear from the surrounding circumstances that cross-examination would be of marginal utility, then the statement may be admitted.
Wright supplies no specific test of reliability but, to determine "particularized guarantees of trustworthiness," a number of factors were considered: spontaneity and consistent
repetition; mental state of the declarant; use of terminology unexpected of a child of similar age; and lack of motive to fabricate. The strength of the Wright decision has led federal and state
courts to accept without question the factors suggested, despite Wright's assertion that the factors are "not exclusive" and its refusal to "endorse a mechanical test for determining 'particularized guarantees of trustworthiness.'" Many psychologists, however, take issue with these factors because they have little support from empirical research.2
Factors of Reliability
Even though a number of federal and state courts have upheld the use of the Wright factors, little empirical evidence supports their use and errors have in fact
occurred.3 In a critical analysis, the term "reliability" could be substituted with a more meaningful term: "validity." In the context of this discussion, "validity would be the degree to which the reliability factors identified by the courts predict truthfulness in children's hearsay statements."4
Four factors listed in Wright are considered by that Court most likely to be trustworthy:
A. Spontaneity and Consistent Repetition: Wright clearly requires that the factor of spontaneity be comparable to excited utterance statements under Federal Rule of Evidence 803(2). Two
concepts must be present before the hearsay statement would be considered comparable to that "firmly-rooted" exception and therefore said to be reliable. First, the statement must be an
expression of immediate perception, unaffected by any fading of memory. Second, the statement should be contemporaneous with the event, with insufficient time available for fabrication.5 When the statement is directly from a witness or in a videotaped interview, there is little chance that the statement was contemporaneous with the event.
Young children can give accurate statements even when telling and retelling events. Even though this retelling may be inconsistent, this does not necessarily mean that the telling is inaccurate. The
lack of consistent repetition alone should not be considered a determiner of reliability.
B. Mental State:
Children who have been sexually abused are extremely variable in their emotional response when discussing the events. "Commentators have observed...that the childhood perspective on sexual experiences 'does not produce the shock or excitement that the law presumes to exist after such an event. Quite often, the incident is related as part of the day's activities without any indication from the child that it was traumatic or unusual.'" 6
C. Terminology: It has been said that "young children lack the experience required to fabricate or fantasize detailed accounts of sexual acts."7 When a child expresses knowledge which is graphic and descriptive of sodomy, erectile functioning and ejaculation there seems to be little doubt about the child's experience. But Terence W. Campbell describes a case of a non-abused nine year old female who describes how "Mark squirted sticky stuff on my face from his thing."8 In another case not substantiated, a four-year-old female stated to a detective that her father had "put his finger in her." 9
Before considering what may seem to be a child's graphic knowledge and explicit terminology as a reliability indicator, a complete understanding of the child's cultural and social influences should be
explored.
D. Lack of Motivation to Fabricate: Courts may determine that "there was no motive to fabricate" or the "child had no motive to lie," but this is not a reliable indicator of
truthfulness.10
The above four criteria of reliability have been applied by courts to support literally hundreds of convictions since Wright. With vague and ambiguous identifiers lacking any empirical scientific
support, untrained and sympathetic judges are attempting to make critical decisions. Even the phrase "particularized guarantees of trustworthiness" is defined differently by courts and has
no standard for measurement in the Federal Rules of Evidence.11
Court's as "Gate-Keepers"
When judges become "gate-keepers" responsible for the admission of evidence with questionable reliability and little guidance, errors will be
made against the accused. In State v. Lenaburg, 781 P.2d 432, 437 (Utah 1989), introduction of a videotaped interview between a five-year-old female and an employee of the Division of Family
Services was considered error because the defendant was unable "to explore contradictory or confusing portions of the victim's testimony." Actually, five states have explicitly rejected
this "gate-keeper" role.12
Without proper cross-examination, many allegations will go unexplored. Prosecutors could use incomplete statement evidence (as in recorded interviews) where the charges are not clearly supported by
the allegations.13
Expert Testimony: Rimmasch and Daubert
In most cases, expert testimony is introduced to evaluate the reliability of child hearsay. State v. Kallin 877 P.2d 138, 141 (Utah 1994), cited in State
v. Doporto, 935 P.2d 484, 495 (Utah 1997), held that "an expert witness may testify that a 'victim's behavior was consistent with symptoms that might be exhibited by one who had been
sexually abused,' as long as the expert does not 'testify to any kind of sexual abuse profile as such, [or that] the symptoms manifested by the victim demonstrated that [the victim] had been sexually
abused.'" Such judicial limitations will have to give way as the science in this area develops, a result anticipated in State v. Rimmasch.
In excluding expert testimony, the Utah Supreme Court in Rimmasch stated that a three-step analysis must be used to determine the reliability of the evidence. Step one requires a finding by the court
that the principles and techniques underlying the testimony are inherently reliable, which may be done by judicial notice or by a sufficient foundational showing by the party seeking to admit the
evidence. Step two requires a determination that the scientific principles or techniques have been "properly applied to the facts of the particular case by sufficiently qualified experts. Step
three requires a determination that the evidence will be more probative than prejudicial, as Utah Rules of Evidence 403 demands.
The U. S. Supreme Court supplied a similar test in Daubert, applying the Federal Rules of Evidence. In a challenge of Rimmasch as being inconsistent with Daubert, the Utah Supreme Court found the two to be similar and not in conflict. Hence, Utah would apply the "detailed and vigorous outline for trial courts to follow" set forth in Rimmasch and explained in State v. Crosby, 927 P.2d 638, 641 (Utah 1996). In establishing the scientific reliability of experts' assertions, several factors could be considered under Daubert:
1) Is the theory or hypothesis falsifiable or testable? 2) Is the theory subject to peer review? 3) Is there a known or potential error rate? 4) Is the method generally accepted? Similarly, the Utah
Supreme Court rejected the foundation presented for an expert witness because the following were lacking: 1) Presented no publications; 2) Did not show wide acceptance; 3) No verification of studies;
and 4) No reference to specific authority. Relying on such factors, the courts would guarantee that no hearsay statement not cross-examined would be admitted into evidence until considered reliable.
Conclusion
The Utah Criminal Code and Code of Criminal Procedure allow hearsay statements to be introduced into evidence under defined circumstances. The court must always make a finding as
to their reliability. A problem exists because factors that courts have considered indicators of reliability do not withstand scientific scrutiny. Expert testimony is often introduced to show that
the victim's behavior was consistent with symptoms that might be exhibited by one who had been sexually abused, but any such testimony must meet a Rimmasch or Daubert standard. In order to determine the validity of a particular statement, a much more involved process is necessary to find "truthfulness." Only when certain criteria are applied to hearsay statements can we begin to paint a descriptive picture of actually experienced criminal events. Unfortunately, the training necessary to make these kinds of forensic evaluations goes beyond that of most court, police, and mental health professionals.14
Footnotes
1. Carol A. Chase, Confronting Supreme Confusion: Balancing Defendants' Confrontation Clause Rights Against the Need to Protect Child Abuse Victims, 1993 Utah L. Rev. 407, 414-415; Robert P. Mosteller, Remaking
Confrontation Clause and Hearsay Doctrine Under the Challenge of Child Sexual Abuse Prosecutions, 1993 U. Ill. L. Rev. 691, 706.
2. Daniel B. Lord, Note, Determining Reliability
Factors in Child Hearsay Statements: Wright and Its Progeny Confront the Psychological Research, 79 Iowa L. Rev. 1149, 1177 (1994).
3. See, e.g., United States v. Clarke, 2 F.3d 81 (4th Cir.1993); Webb v. Louis, 44 F.3d 1387 (9th Cir.1994); Ring v. Erickson,
983 F.2d 818 (8th Cir.1992).
4. Lord, at 1169, n. 131.
5. Stanley A. Goldman, Not So "Firmly Rooted": Exceptions to the Confrontation Clause, 66 N.C. L. Rev. 1, 29 (1987).
6. Doe v. United States, 976 F.2d 1071, 1079 (1992), quoting Judy Yun, Note, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, 83 Colum. L. Rev. 1745, 1757 (1983). See also David P.H. Jones and J. Melbourne McGraw, Reliable
and Fictitious Accounts of Sexual Abuse in Children, 2 Journal of Interpersonal Violence 27, 39 (1987); Aldert Vrij, Detecting Lies and Deceit: The Psychology of Lying and the Implications for
Professional Practice, 139 (2000).
7. 2 John E. B. Myers, Evidence in Child Abuse and Neglect Cases 340 (3d ed. 1997).
8. Smoke and Mirrors: The Devastating Effect of False Sexual Abuse Claims (1998).
9. R. Kim Oates et al., Erroneous Concerns About Child Sexual Abuse, 24 Child Abuse & Neglect 149, 155 (2000).
10. Myers, at 346; United States v. Clarke, 2 F.3d 81, 84 (4th Cir.1993).
11. Robert G. Marks, Note, Should We Believe the People Who Believe the Children?: The
Need for a New Sexual Abuse Tender Years Hearsay Exception Statute, 32 Harvard J. on Legis. 207, 241-242 (1995); Victor I. Vieth, When Cameras Roll: The Danger of Videotaping Child Abuse
Victims Before the Legal System is Competent to Assess Children's Statements, 7 J. of Child Sexual Abuse 113, 116 (1999); Lucy S. McGough, Child Witnesses: Fragile Voices in the American Legal
System 148, 152, 154 (1994); Scott A. Smith, Comment, When to Hear the Hearsay: A Proposal for a New Rule of Evidence Designed to Protect the Constitutional Right of the Criminally Accused to
Confront the Witnesses Against Her, 32 J. Marshall L. Rev. 1287, 1305 (1999).
12. Sophia I. Gatowski, Asking the Gatekeepers: A National Survey of Judges on Judging Expert Evidence in a Post-Daubert World,
25 L. & Hum. Behav. 433, 452-453 (2001); Jane Goodman-Delahunty, Forensic Psychological Expertise in the Wake of Daubert, 21 Law & Hum. Behav. 121, 132 (1997).
13. Dana D.
Anderson, Note, Assessing the Reliability of Child Testimony in Sexual Abuse Cases, 69 S. Cal. L. Rev. 2117, 2142 (1996); John Baldwin, Police Interview Techniques; Establishing Truth or Proof? 33 Brit. J. of Criminology 325, 349 (1993); Monit Cheung, Children's
Language of Sexuality in Child Abuse Investigations: A Brief Report, 8 J. of Child Sexual Abuse 65, 79-80 (1999).
14. Irit Hershkowitz, The Dynamics of Interviews Involving Plausible and Implausible Allegations of Child Sexual Abuse,
3 Applied Developmental Science 86, 88 (1999); Gunter Kohnken et al., The Cognitive Interview and the Assessment of the Credibility of Adults' Statements 80 J. of Applied Psychol. 671, 673 (1995); Vrij, supra note 18 at 164; Laura A. Brodie, Making Judgments Regarding Child Sexual Abuse: The Impact of Professional Background, Experience and Knowledge Base (1993) (Ph.D. dissertation, Rosemead School of Psychology, Biola University), cited in Marcus Choi Tye et al., The Willingness of Children to Lie and the Assessment of Credibility in an Ecologically Relevant Laboratory Setting,
3 Applied Developmental Science, 92, 98 (1999); Daniel W. Shuman, & Bruce D. Sales, The Impact of Daubert and Its Progeny on the Admissibility of Behavioral and Social Science Evidence, 5 Psychol., Pub. Pol'y, & Law 3, 14 (1999).
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