Article Title: Admitting Child Hearsay Statements of Child Sexual Abuse: Can Courts Determine Reliability?

• Publication year: 2002
• Pages: 06-0
• Citation: Vol. 2002 No. 06 Pg. 06-0

Utah Bar Journal Volume 6.

06-0 (2002). Article Title: Admitting Child Hearsay Statements of Child Sexual Abuse: Can Courts Determine Reliability?

June, 2002

Article Title: Admitting Child Hearsay Statements of Child Sexual Abuse: Can Courts Determine Reliability

Author: Bruce M. Giffen and R. Lee Warthen

Article Type

Article

Article

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.(fn1)

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...