Section 46 Hearsay

LibraryJuvenile Law 2011

In civil child maltreatment proceedings, Missouri courts have recognized a special hearsay exception “[w]here there is a substantial basis to believe that the statements of the child are true.” In re Marriage of P.K.A., 725 S.W.2d 78, 81 (Mo. App. S.D. 1987). Section 491.075.1(1), RSMo Supp. 2010, creates a similar special hearsay exception for statements made by a child under the age of 14 years in prosecutions under Chapter 565, 566, or 568, RSMo (offenses against the person, sexual offenses, or offenses against the family respectively). These statements are admissible in these criminal proceedings as substantive evidence to prove the truth of the matter asserted when “[t]he court finds, in a hearing conducted outside the presence of the jury that the time, content and circumstances of the statement provide sufficient indicia of reliability,” and the child:

· testifies at the proceedings;

· is unavailable; or

· would suffer significant emotional or psychological trauma from testifying.

Section 491.075.1(1); Guese v. State, 248 S.W.3d 69, 72 (Mo. App. S.D. 2008).

To determine the reliability of a child’s out-of-court statements for the purposes of this section, Missouri courts look to the totality of the circumstances. In making this determination, the following non-exclusive factors are considered:

“(1) spontaneity and consistent repetition;

(2) the mental state of the declarant;

(3) the lack of motive to fabricate; and

(4) knowledge of subject matter unexpected of a child of similar age.”

State v. Gaines, 316 S.W.3d 440, 449 (Mo. App. W.D. 2010) (citations omitted). “The lapse of time between when the acts occurred and when the victim reported them is also a factor to consider.” Id.

The special hearsay exception in § 491.075 applies to statements by child victims and nonvictims alike. See State v. Bass, 81 S.W.3d 595, 601–08 (Mo. App. W.D. 2002). The child victim does not need to be physically present in court when the court rules on whether the child would suffer significant emotional or psychological trauma from having to testify. See In re E.L.C. v. State, 202 S.W.3d 738, 740–41 (Mo. App. W.D. 2006).

In a civil or criminal proceeding, a child abuse victim’s out‑of‑court statements may also fall within a traditional hearsay exception such as the excited utterance exception or the exception for statements for purposes of medical diagnosis or treatment. See, e.g., State v. Huntington, 575 N.W.2d 268 (Wis. 1998) (excited utterance exception); State v. Vaught, 682 N.W.2d 284 (Neb. 2004) (medical diagnosis or treatment exception); cf. State v. Minner, 311 S.W.3d 313, 319 (Mo. App. W.D. 2010) (dying declaration exception
in prosecution of crime against adult victim); State v. Kemp,
212 S.W.3d 135, 146, 147 (Mo. banc 2007) (excited utterance exception in prosecution of crime against an adult victim).


The special and traditional hearsay exceptions remain fully applicable in civil child maltreatment cases in accordance with due process and the rules of evidence. In P.K.A., for example, the court affirmed the order declining to hold the mother in contempt of the dissolution decree for refusing to permit the father his scheduled visitation with their four‑year‑old son. The court rejected the father’s motion to exclude as inadmissible hearsay the boy’s statements to the mother and a psychologist that the father had sexually abused him. After determining that the child’s statements fit within no traditional hearsay exception, the court held that “[t]he necessity to have statements of a child indicating abuse considered for their truth calls for a special hearsay exception.” P.K.A., 725 S.W.2d at 81. “Where the best interest of the child is the primary concern,” the court concluded, “the paramount consideration must be the welfare of the child.” Id. The panel said this about the child protective purposes of the special exception:

This type of abuse would not often occur in the presence of persons competent to testify. Where there is a substantial basis to believe that the statements of the child are true, courts are justified in hearing and considering them to prevent further or potential abuse to a child. . . .

Flexibility is needed in these cases, even where the child might be qualified to testify, because of the emotional trauma that such an experience may cause. It is desirable to avoid the necessity of forcing a young child to testify as to abuse, particularly when the abuser is the victim’s parent.

This exception . . . is to be used only where abuse may have occurred, or has been threatened, and the child might not be competent or reasonably expected to testify to it.

Ordinarily, child custody matters are initially decided by a trial judge. By virtue of experience and training the judge should be able to properly consider such evidence and determine its weight. “Due regard must be given to the trial court’s opportunity to judge the credibility of witnesses, and to evaluate the intangibles which do not appear in the record in child custody cases.”

Id. (citations omitted) (quoting In re Marriage of Powers, 527 S.W.2d 949, 952 (Mo. App. E.D. 1975)). P.K.A. reasoned that allowing hearsay statements may be preferable to forcing a child to testify, particularly when the alleged abuser is the child’s parent. Id.

All three districts of the Missouri Court of Appeals have embraced the special hearsay exception. See, e.g., In re...

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