§ 48.07 SPECIAL EVIDENTIARY CONSIDERATIONS

• Jurisdiction: Washington

§ 48.07 SPECIAL EVIDENTIARY CONSIDERATIONS

Abuse cases often present special evidentiary considerations. These may include admission into evidence of a child's statements to others and the competency of a child to testify. Typically, the child discloses abuse to a family member, therapist, and/or investigator. Further disclosures of abuse are sometimes made through the child's behavior or play. Questions of admissibility of these kinds of statements and behavior often arise at trial. The following subsections deal with these issues.

[1] Admission of Child's Statements

It should first be noted that the child sexual abuse hearsay statute, RCW 9A.44.120, applies only to criminal (adult and juvenile offender) and dependency proceedings. This statute allows for admission of a child's statements under certain circumstances when "not otherwise admissible by statute or court rule." For analyses of the statute, see Sheryl K. Peterson, Sexual Abuse of Children, Washington's New Hearsay Exception, 58 WASH. L. REV. (1983); and Comment, Confronting Child Victims of Sexual Abuse, 7 U. PUGET SOUND L. REV. 387 (1984). See State v. Rohrich, 132 Wn.2d 472, 939 P.2d 697 (1997).

There are three basic approaches to admitting into evidence a child's statements to others: (1) if the statement is not an "assertion," it is not hearsay and is therefore admissible; (2) an expert may testify about the child's statements under certain circumstances; and (3) the statement may qualify as an exception to the hearsay rule.

[a] Nonassertive Statements Admissible

An utterance, writing, or nonverbal conduct that is not assertive is not hearsay. The test is whether it is intended as an assertion or not. Testimony as to observations of a child's conduct at play, utterances, and demeanor are admissible as nonhearsay, as long as the observations of verbal and nonverbal behavior are not intended as assertions of fact or opinion. In re Dependency of Penelope B., 104 Wn.2d 643, 709 P.2d 1185 (1985); see also State v. Hieb, 107 Wn.2d 97, 727 P.2d 239 (1986).

IN RE DEPENDENCY OF PENELOPE B., 104 Wn.2d 643, 709 P.2d 1185 (1985). This case involved a dependency action. The allegations were that her father sexually abused the child in her home and that her mother failed to protect her. The state's case was based solely on the then-five-year-old girl's statements to third parties. The child did not testify. The trial court struck the hearsay testimony of the child, and found that the state failed to carry its burden of proof. On appeal, the Supreme Court held that certain evidence rejected by the trial court should have been admitted. The testimony regarding observations of the child's nonassertive conduct and demeanor and the child's nonassertive utterances were not hearsay and therefore were admissible. However, the testimony of the foster mother as to what she overheard the child say to another child and the caseworker was hearsay and inadmissible as evidence. Additionally, the child's responses to the therapist's questions were hearsay and inadmissible. The court stated that these statements do not qualify as an exception under ER 803(a)(3) because the declarant's statement indicates a prior state of mind rather than existing feelings. 104 Wn.2d at 658-59.

[b] Experts May Testify to Child's Out-of-Court Statements

The evidence rules provide for a "medical treatment exception" to the hearsay rule:

Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of 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.

ER 803(a)(4). Statements made to a physician are admissible. State v. Bishop, 63 Wn. App. 15, 816 P.2d 738 (1991), review denied, 118 Wn.2d 1015 (1992). Statements made to counselors that are pertinent to treatment are also admissible. State v. Ackerman, 90 Wn. App. 477, 953 P.2d 816 (1998). The provider of treatment does not need to be a forensic specialist. Therapy for sexual abuse does not differ from other medical treatment. In re Dependency of M.P., 76 Wn. App. 87, 882 P.2d 1180 (1994), review denied, 126 Wn.2d 1012 (1995). Statements made to a social worker were also ruled admissible under ER 803(a)(4). In re Dependency of S.S., 61 Wn. App. 488, 814 P.2d 204, review denied, 117 Wn.2d 1011 (1991).

ER 703 permits an expert to testify to statements on which the expert's opinion is based. These must be facts or data of a type reasonably relied upon by experts in that particular field in forming opinions or inferences. The facts or data need not be admissible in evidence. Thus, if the expert uses the child's statements and/or behavior as a basis for the opinion, the expert may...