The First Complaint: an Approach to the Admission of Child-hearsay Statements Under the Alaska Rules of Evidence

• Publication year: 2010

§ 27 Alaska L. Rev. 71. THE FIRST COMPLAINT: AN APPROACH TO THE ADMISSION OF CHILD-HEARSAY STATEMENTS UNDER THE ALASKA RULES OF EVIDENCE

Alaska Law Review
Volume 27, No. 1, June 2010
Cited: 27 Alaska L. Rev. 71

THE FIRST COMPLAINT: AN APPROACH TO THE ADMISSION OF CHILD-HEARSAY STATEMENTS UNDER THE ALASKA RULES OF EVIDENCE

JOHN J. GOCHNOUR ^[*]

ABSTRACT

The age of child sexual abuse victims and the private nature of sex crimes make it notoriously difficult for prosecutors to find sufficient admissible corroborating evidence for an effective prosecution. The Alaska courts have responded by stretching various codified and common-law hearsay rule exceptions to accommodate child-hearsay statements. In this Note, the Author discusses the inadequacies of this approach and proposes amending the Alaska Rules of Evidence to include a consistent hearsay exception for child-hearsay in sexual abuse cases, based on the first complaint rule and compliant with the Supreme Court's articulation of the Confrontation Clause in Crawford v. Washington and Davis v. Washington.

TABLE OF CONTENTS

INTRODUCTION..................................................................................................72

I. THE UNIQUE NATURE OF CHILD SEXUAL ABUSE PROSECUTIONS........74

A. Difficulties Faced in Child Sexual Abuse Prosecutions..........74

B. Using Victims' Hearsay Statements in Child Sexual Abuse Prosecutions.....................................................................76

II. THE CONFRONTATION CLAUSE AND ITS APPLICATION TO CHILDHEARSAY STATEMENTS UNDER ALASKA LAW.....................................79

A. The Confrontation Clause's Evolution from the Adequate Indicia of Reliability Approach to the Testimonial Statement Approach..............................................80

B. Application of the Confrontation Clause to Child Abuse Cases..............................................................................................82

C. Alaska's Application of Crawford and Davis.............................85

III. ADMITTING CHILD HEARSAY STATEMENTS UNDER THE ALASKA RULES OF EVIDENCE...............................................................................86

A. Excited Utterance Hearsay Exception.......................................87

B. The Residual Exception...............................................................89

C. Medical Records Exception........................................................91

D. Recorded Statement by Child Victims of Crime......................92

E. The First Complaint Doctrine.....................................................93

IV. PROPOSED AMENDMENT TO THE ALASKA RULES OF EVIDENCE..............................................................................................98

CONCLUSION.........................................................................101

INTRODUCTION

Despite concerted efforts over the last twenty years to reduce its frequency, child sexual abuse continues to represent a grave threat to Alaska's children. In 2009, more than one hundred cases of child sexual abuse were substantiated in Alaska. ^[1] That statistic represents only a fraction of all actual incidents of child abuse, diminished by the fact that fear, and in many cases love, prevent more than ninety percent of incidents from being reported to the police. ^[2] Although child abuse is an intensely private crime, its direct and indirect costs are openly borne by the victim, his or her family, and society as a whole. Victims often require substantial mental health assistance and are much more likely to suffer from at least one psychological disorder. ^[3] In the long term, sexual abuse makes its victims more likely to abuse drugs or alcohol, spend time in prison, and experience teen pregnancy. ^[4]

Detecting sexual abuse and prosecuting its perpetrators is notoriously difficult. For a variety of reasons, sexual abuse is both underdisclosed and underreported. ^[5] The difficulty of charging and prosecuting an abuser is enhanced by the lack of witnesses beyond the child, the lack of corroborating physical evidence, and the reluctance or inability of the victim to testify against the perpetrator. ^[6]

The difficulties and costs of abuse must not cause us to forget the rights of alleged abusers. Child sexual abuse is a heinous crime, but alleged offenders must be provided the same Due Process rights as any other defendant. In particular, the Sixth Amendment of the United States Constitution guarantees defendants the opportunity to confront any witness against them through rigorous cross-examination.

In an effort to resolve the many difficulties of prosecuting child abusers, prosecutors and courts have attempted to admit as evidence out-of-court allegations of abuse made by victims to third parties. These statements would normally be inadmissible hearsay under the Alaska Rules of Evidence, but courts have admitted them under various exceptions to the rules. ^[7] Out of necessity and the widespread belief that children are unlikely to He about sexual abuse, courts have stretched these exceptions to allow admission even when statements otherwise fail to meet any exception's general requirements. For example, courts have admitted statements made long after an abusive event through the "excited utterance" exception. ^[8] This approach, uneven at best, is inadequate to draw the necessary balance between admitting child-hearsay statements and protecting defendants' Sixth Amendment rights after the United States Supreme Court's recent decisions in Crawford v. Washington ^[9] and Davis v. Washington. ^[10]

This Note explores the application of Alaska's Rules of Evidence to child-victims' out-of-court statements and recommends a change that would enable courts to admit child-hearsay statements more freely when they comply with the Confrontation Clause. Part I explains the unique nature of child abuse prosecutions and why the hearsay testimony they often rely upon is generally both reliable and necessary. Part II discusses the reinvigorated Confrontation Clause and how admitted statements must comply with defendants' constitutional rights. Part III describes the current approach of Alaska courts for admitting child-hearsay in sexual abuse cases. Part IV suggests a statutory amendment to the Alaska Rules of Evidence for evaluating child-hearsay statements in a consistent fashion, based upon the first complaint rule. This proposed exception would strike the important balance of admitting statements even when a declarant is unavailable, while still complying with the new requirements set forth in the Crawford and Davis decisions. Given the special circumstances of child abuse, this more certain hearsay exception for statements of child sexual abuse victims would provide needed direction, consistency, and fairness in prosecutions, and protect vulnerable child witnesses.

I. THE UNIQUE NATURE OF CHILD SEXUAL ABUSE PROSECUTIONS

Questions about the admission of out-of-court statements are not unique to cases involving children, but "there are perhaps no other cases in which these questions arise so regularly and are imbued with such urgent significance." ^[11] Additionally, detecting and prosecuting sex offenders is notoriously difficult, "in large part because there often are no witnesses except the victim." ^[12]

A. Difficulties Faced in Child Sexual Abuse Prosecutions

The difficulty in prosecuting child sexual abuse cases arises partially because sexual abuse is such an intensely private crime. Often no one except the accused and the victim are present when the abuse takes place, and in many cases the abuser is a parent, relative, or trusted acquaintance of the child. ^[13] This private nature ensures that abuse is both underdisclosed and underreported. ^[14] Child victims often experience low self-esteem, guilt, isolation, depression, embarrassment, and feelings of inadequacy. ^[15] These feelings lead to a reticence to tell anyone about the abuse, and a tendency for children to feel responsible for and blame themselves for its occurrence. ^[16] These and other traits of victimization make children unwilling, and in some cases unable, to answer the detailed questions relating to the abuse that police and prosecutors necessarily require. ^[17] In cases where a child is old enough to understand the consequences of his or her decision to talk, the child may be forced to choose between the abuse and losing a parent or step-parent because of the abuse. ^[18]

Even when a child chooses to tell someone about the abuse, it is often difficult for police and prosecutors to find admissible evidence to corroborate the victim's claims. Many sex crimes do not involve physical penetration or contact that leaves physical marks such as bruises; instead, abuse takes the form of petting, fondling, or exhibitionism. ^[19] These less violent methods of abuse can be perpetrated without leaving obvious physical evidence, and even when children are examined by medical professionals, no certain conclusions can be drawn. This often leaves prosecutors with precious little evidence outside of the children's statements to support accusations of child abuse. ^[20]

When sufficient evidence is found and an alleged abuser is charged, the prosecution can be further hindered because children are often unable to tell their stories at trial. Victims are often too young to be competent witnesses or unable to...