Section 16.41 Statements Relating to Sexual, Physical, or Emotional Abuse of Children (Child Hearsay)

• Library: Evidence 2017

A. (§16.41) Statements Relating to Sexual, Physical, or Emotional Abuse of Children (Child Hearsay)

Section 491.075, RSMo 2016—also known as the child hearsay statute—was passed in 1985 to address the unusual difficulties in prosecuting child abuse cases. See, e.g., State v. Wright, 751 S.W.2d 48, 52 (Mo. banc 1988) (a child’s hearsay statements were admitted by the testimony of the officer). The State’s strong interest in preventing and punishing child abuse was hampered because the victim’s testimony was frequently the only direct evidence of abuse. The child witness may be unable to testify effectively in the normal courtroom setting, and the child’s testimony itself can be distorted by the trauma or simply by having to recount the embarrassing personal details of sexual encounters—sometimes with the child’s own parent or sibling. Id. The court rejected the claim that § 491.075 was facially unconstitutional and unconstitutional as applied.

Section 491.075.1 allows the admission of an out-of-court statement made by a child under 14 years of age, or a vulnerable person, relating to offenses under:

· Chapter 565, RSMo (offenses against the person);

· Chapter 566, RSMo (sexual offenses);

· Chapter 568, RSMo (offenses against the family); or

· Chapter 573, RSMo (pornography offenses),

as “substantive evidence to prove the truth of the matter asserted” if the statutory criteria are established. The statute was amended in 2012 to include “vulnerable person.” The legislature may expand the admission of these out-of-court statements to all crimes. Senate Bill 513 was introduced in the 2017 legislature. This proposed legislation applies also to child victims and witnesses.

See also § 455.516, RSMo 2016, which applies to hearings for a child protective order under §§ 455.500–455.538, RSMo 2016, the Child Protection Orders Act. Section 491.075 also applies to the admissibility of statements in juvenile court. Section 491.699, RSMo 2016 (uses 12 years of age). See also § 211.059.1, RSMo 2016.

The court must hold a hearing outside the presence of the jury to determine whether the time, content, and circumstances of the statement provide sufficient indicia of reliability for the statement to be admitted. Section 491.075.1(1). Counsel should keep in mind that the § 491.075 hearing is the place to make specific objections and to present whatever evidence there is that shows that the proffered statements are unreliable. In State v. Sprinkle, 122 S.W.3d 652 (Mo. App. W.D. 2003), the defendant argued on appeal that certain evidence during trial—not offered during the § 491.075 hearing—showed that the child’s statements were unreliable. The court rejected the defendant’s claims, holding that the only evidence to be considered in admitting the statements—and in reviewing the trial court’s actions on appeal—was that offered at the hearing. Sprinkle, 122 S.W.3d at 661. Once the court ruled the statements admissible based on what occurred at the § 491.075 hearing, the statements were “substantive evidence of the truth of the matter asserted,” and from that point on “admissibility is not the issue, but rather whether the trier of fact believes the evidence.” Id.; State v. Lewis, No. SD34314, 2017 WL 1179793 (Mo. App. S.D. Mar. 30, 2017).

The trial court does not need to make a specific finding that the statement is reliable or to make oral or written findings on the record explaining its ruling, although these findings are preferable because they clarify the issues for appellate review. State v. Brethold, 149 S.W.3d 906, 910–11 (Mo. App. E.D. 2004). The court’s finding of reliability is implicit in its actions in admitting or excluding the evidence. As the Brethold court said: “We will not require trial courts to articulate their analysis and identify which of the factors in a non-exclusive list they used when they are not even required [to] make a specific finding of reliability.” Id. at 911. Whether the trial court errs in refusing to make specific findings at counsel’s request, at least on those factors to which a specific objection is made, is unsettled at this point. Brethold noted that trial counsel made no such request and, thus, could not fault the trial court for failing to be more specific. Id.

In determining the indicia of reliability, the court uses a “totality of the circumstances test.” J.M.G. v. Juvenile Officer, 304 S.W.3d 193, 197 (Mo. App. W.D. 2009). The nonexclusive list of factors include:

· whether the statement was spontaneous and consistently repeated;

· the child’s mental state at the time of the statement;

· whether the child lacked a motive to fabricate the statement;

· whether the statement showed knowledge of subject matter (such as sexual matters) that would be unexpected of a person of that age;

· the lapse of time between when the acts occurred and when the child made the statement;

· whether the statement was made in a “neutral” setting such as a “comfortable” interview room;

· whether the person interviewing the child is a trained interviewer; and

· whether the interviewer asked leading or suggestive questions.

See:

· State v. Redman, 916 S.W.2d 787, 790–91 (Mo. banc 1996)

· K.A.R. v. Juvenile...