CHILDREN ARE SPEAKING, IT'S TIME WE LISTEN: THE CASE FOR A CHILD HEARSAY EXCEPTION IN MILITARY COURTS.

• Author: Vaughn, M. Arthur, II

1. INTRODUCTION II. WHY IT IS TIME FOR THE MILITARY TO ADOPT A CHILD HEARSAY STATUTE A. Limit Psychological Effect in Attaining the Truth B. Provide Predictability for All Parties to the Trial C. The Volume of Child Victims Warrants a Hearsay Exception D. Public Policy and Precedent III. BACKGROUND ON HEARSAY AND THE CONFRONTATION CLAUSE A. Hearsay and the Confrontation Clause B. Analysis of the Statements Made by the Child in the Introduction 1. The Spontaneous Statement Made to the Mother Is Nontestimonial 2. The Statements Made During the Forensic Interview Are Testimonial IV. PROPOSED MILITARY RULE OF EVIDENCE A. The Definition of "Child" Should Be a Person Under Age Sixteen B. The Rule Should Require a Reliability Test Only If the Witness Is Unavailable C. The Statement Should Be Admissible without Regard to Availability of the Child D. The Corroboration Requirement Is Satisfied within the Reliability Test E. The Rule Is Constitutional V. CONCLUSION Child abuse is one of the most difficult crimes to detect and prosecute, in large part because there often are no witnesses except the victim. (1)

1. INTRODUCTION

   An otherwise happy-go-lucky six-year-old boy recently becomes introverted, quiet, and withdrawn. His mother is confused and concerned, but his father attributes it to "just a phase." However, when the mother begins to question her son about why he is acting differently, he discloses that "daddy touched me." After the initial shock and tears subside, she contacts the police. Because the parents are active duty military members, the local military authorities take the lead role in investigating the allegations. The father is taken by his First Sergeant (2) to the investigative division of their military branch. The father does not make a statement and invokes his Article 31, Uniform Code of Military Justice (UCMJ), (3) rights and remains silent. Afterward, his commander issues him a no-contact order (4) and provides him housing on base for the time being. After a couple of days, the investigators schedule what is commonly referred to as a child forensic interview. (5) During the interview, the child recounts to the interviewer the details about what his father did to him. The facts support UCMJ charges and ultimately result in a court-martial.

   When it comes to proving the case, however, trial counsel will face two important questions. First, can the government introduce the statements the child initially made to his mother? Second, can trial counsel introduce the statements made during the forensic interview? A subset of both of these questions is whether the child will have to testify in order for the court to admit the statements.

   While this scenario is fictitious, strikingly similar scenarios happen regularly in child sexual abuse cases. (6) This article will provide a framework for prosecutors and defense counsel to use in evaluating situations where child witness statements serve as the strongest (and sometimes only) evidence in a case. To assist in this endeavor, this article will suggest an additional rule to the Military Rules of Evidence (MRE) that will provide a mechanism for the government, provided certain prerequisites are met, to more easily admit statements made out of court by a child--specifically, statements made by a child that are determined to be nontestimonial--regardless of whether the child is available at trial. (7)

   The second part of this article will explore the various reasons why a proposed hearsay exception for child statements is needed in military courts. Ensuring fact-finders are provided with truthful information, while minimizing the traumatic effect the trial process frequently has on children, is paramount in this endeavor. Additionally, cases involving child victims are on the rise in the military services and the addition of an MRE to address statements made by children in these cases may assist in combatting this disturbing trend. Moreover, the current practice of admitting child statements is unpredictable for all parties to a trial. A proposed rule will provide the military with some measure of predictability when confronted with this form of evidence.

   The third part of this article will discuss the seminal cases addressing the Confrontation Clause (8) and hearsay case law, focusing on how these cases impact the practitioner's decision-making and tactical considerations at trial. The fourth part of this article will propose a codified child hearsay exception for incorporation into the MRE. In crafting this rule, this article will focus on the following issues: (1) what age the child should be before the exception applies; (2) whether the statement offered must be corroborated; (3) whether the child should be available as a witness before admission of the statement; and (4) whether a reliability test should be built into the text of the rule.

   Finally, part five of this article will conclude by explaining how the proposed rule will assist all parties in the vignette outlined in the introduction of this article. Ultimately, military justice practitioners on both sides would benefit from a codified child hearsay exception.

2. WHY IT IS TIME FOR THE MILITARY TO ADOPT A CHILD HEARSAY STATUTE

   The time is ripe for the military to have a codified child hearsay exception. Such a rule would limit the short term psychological trauma children suffer during the trial process. Additionally, many times by not placing the child on the witness stand and instead offering a statement made out of court by a child, panel members will receive more truthful testimony. Consequently, panel members can receive more of the facts of the case.

   1. Limit Psychological Effect in Attaining the Truth

      Embodied in the Confrontation Clause (9) is the belief that it is much more difficult for a witness to lie in open court in front of the defendant and also more likely that the jury can detect a lie from the demeanor of the witness. (10) Additionally, one of the drafters' overarching reasons for the Confrontation Clause (11) is to make the fact-finding process more reliable. (12) However, when applied to children, this belief has its limits. (13) Facing an accused, especially one who harmed a child victim, or to whom loyalty is felt, can be a traumatic experience. (14) Studies have shown the facets of the legal process that are most distressing to a child all involve the act of testifying." These aspects that are the most distressing also correlate directly with "poorer eyewitness memory performance." (16) Equally important, placing a child under heightened emotional stimulation can cause the child to refuse to testify or be unable to verbalize answers. (17) These effects of forcing children to testify risk panel members hearing testimony riddled with unintentional inaccuracies. (18) Although the Confrontation Clause (19) attempts to protect the truth, when children are involved as the witnesses, many times the exact opposite occurs. This is an outcome the military cannot accept.

      The American Psychological Association discussed child distress from court proceedings in their Amicus brief to the Supreme Court in 1990.

      The period during which child sexual assault victims are involved in legal proceedings represents a time of special stress for them. Stressors in childhood can slow the course of normal cognitive and emotional development such that stressed children do not advance at the same pace as their unstressed peers. Temporary developmental regressions may even appear. Although adults too may suffer distress from legal involvement, their development is more complete. Thus, the negative impact of legal involvement may be more significant for child than adult victims. (20) The Supreme Court in Maryland v. Craig has previously recognized the immense psychological harm that children can suffer in a trial. (21) "We have of course recognized that a State's interest in 'the protection of minor victims of sex crimes from further trauma and embarrassment' is a 'compelling' one." (22) The Court went on to reason that "we have sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights." (23) The desire to protect children and the recognition of the harm caused to children is not novel to our justice system.

      It is important to make the distinction between long-term and short-term psychological trauma caused by children participating in the trial process. While the distress and trauma suffered by children is real, research indicates the long-term psychological effects on children are not as detrimental as one might believe. (24) In one study, although a majority of children were apprehensive about confronting an accused in a courtroom proceeding, (25) most were able to testify, especially if they were prepared and supported. (26) In fact, "the great majority of children were very resilient and stood up well to the experience." (27) If prepared correctly, and contrary to popular belief, the long-term effect on children is minimal. Nevertheless, the immediate harm children suffer while engaged in the trial process is noteworthy. What exacerbates this harm is children are typically not afforded the luxury of deciding when to participate in the litigation process.

      In the military criminal justice system, victim preferences whether to prosecute an offender receive great deference. (28) However, children are not typically in a position to decide on their own whether they want the case to go forward, and, as the Supreme Court has said, "children cannot be viewed as miniature adults." (29) Many times, a parent or guardian is making this choice for the child. While testifying in open court is a nerve-racking experience for anyone involved, adult victims may choose whether to subject themselves to the rigors and distress of trial preparation and testimony. Children, on the other hand...