Confronting Child Victims of Sex Abuse: the Unconstitutionality of the Sexual Abuse Hearsay Exception

• Publication year: 1983

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 7, No. 2WINTER 1984

Confronting Child Victims of Sex Abuse: The Unconstitutionality of the Sexual Abuse Hearsay Exception

I. Introduction

Children are frequently victims of sexual abuse,(fn1) yet courts often find it difficult to convict the person the child claims is responsible. Court surroundings intimidate children, often making them poor witnesses. In trying to elicit a complete statement from a child, a prosecutor may appear to put words and ideas into the child's mouth. As a result, a child's out-of-court statement may be more complete and descriptive than the one made in court. In addition, the child may be too young to testify, so that her account can only be offered into evidence through hearsay.(fn2)

In response to the problem, the Washington Legislature created a new hearsay exception.(fn3) That Act permits admission of a hearsay statement about sexual abuse by a child under the age of ten upon a finding by the court that the circumstances and content of the statement indicate that it is sufficiently reliable to be admitted into evidence. If the child is unavailable as a witness, the Act requires corroboration of the criminal act as well. Whenever this new exception is invoked, the party against whom the statement will be used must receive notice of the intent to use the statement sufficiently in advance so that there is adequate time to prepare a defense.

The Act fails to define unavailability, and in doing so, it condones the admission of hearsay by children who are too young to testify. Admission of this type of hearsay directly conflicts with the principles underlying the established hearsay exceptions and the confrontation clause.(fn4) Reliability is the primary consideration in determining whether to admit hearsay. Washington courts admit hearsay of incompetent child declarants under very limited circumstances. The Act expands the degree to which this type of hearsay can be used to a point where it is no longer consistent with the principles underlying traditional hearsay exceptions. As a result, the Act is poor law, since it violates the principles basic to all hearsay exceptions, and is unconstitutional, since it fails to meet the standards required by the confrontation clause.

This Comment will first analyze the Act in the light of the principles that form the basis for the hearsay rule and its exceptions. It will then examine the effect of the Act on the preexisting hearsay rules. Next, it will compare the concept of unavailability as used in the hearsay exceptions with the concept of incompetence; both concepts are then analyzed according to the requirements of the hearsay rules and the confrontation clause. The Comment will conclude that the Act is unconstitutional because it permits admission of hearsay of testimonially incompetent children.

II. The Available Declarant

"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."(fn5) Courts generally exclude hearsay because it is considered less reliable than testimony by a person with firsthand knowledge of the facts.(fn6) When a child tells an adult that someone sexually abused him or her, and that statement is offered to prove the truth of the child's assertion, the statement is hearsay.

When a declarant's out-of-court statement is allowed into evidence, the court is denied the opportunity to see the declaration tested under cross-examination. The trier of fact has nothing against which to measure the value of the evidence. Some kinds of hearsay, however, are considered so reliable that they are admissible as substantive evidence. In each case, some special necessity must exist for admitting the hearsay.(fn7) Usually, this is because the declarant is either unavailable, or the hearsay by its nature is thought to be as reliable as the in-court statement.(fn8) In addition, something either in the content or the circumstances surrounding the statement must demonstrate that it is particularly reliable.(fn9) For example, present sense impressions are considered trustworthy because the contemporaneity of the event and declaration negate the likelihood of deliberate or conscious misrepresentation.(fn10) Similarly, dying declarations regarding the cause of death are admissible because the fear of death is considered to make the declarant's statement trustworthy.(fn11) The declarant's death supplies the element of necessity. Without these safeguards, there is no justification for dispensing with the requirement that the declarant testify in court subject to cross-examination.

The Federal Rules of Evidence codified the requirements of necessity and trustworthiness in the two residual exceptions.(fn12) These exceptions allow hearsay not falling within an established exception to come into evidence if: 1) it has circumstantial guarantees of trustworthiness equivalent to those found in the codified exceptions; 2) it is offered as evidence of a material fact; 3) it is more probative than other evidence which might be offered; and 4) its admission serves the interests of both justice and the rules.(fn13) Although Washington did not include the residual exceptions when it adopted the Federal Rules,(fn14) these principles are inherent in all of the adopted exceptions.(fn15)

The Act must thus be examined in relation to these hearsay principles to determine whether it provides sufficient safeguards to warrant the admission of hearsay. The Act has a twofold effect on the admission of evidence: first, it expands upon existing evidence rules by admitting prior consistent statements of witnesses as substantive evidence and by admitting prior inconsistent statements not made under oath as substantive; second, the Act admits the statements of incompetent declarants.

A court may admit as nonhearsay prior consistent statements of a witness only to rebut a charge of recent fabrication or improper motive or influence.(fn16) The Act enlarges upon this rule by permitting admission of prior consistent statements in the state's case-in-chief. This use makes the statement hearsay; consequently, it must meet the criteria for a hearsay exception in that it must be necessary and have circumstantial guarantees of trustworthiness. The necessity for a child victim's hearsay arises from the difficulty the prosecution encounters in eliciting complete and credible testimony from a child witness. Further necessity may arise because the hearsay is more probative than other evidence of the crime. The Act requires that the court find indicia of reliability based on the time, content and circumstances of the declaration prior to its admission.(fn17) This appears to meet the trustworthiness requirement basic to all hearsay exceptions. Furthermore, in this instance, the child is a witness. The trier of fact has the opportunity to observe the child firsthand, and the opponent may cross-examine the declarant about the circumstances under which he made the statement.

The Act also expands the use of a witness's inconsistent statements. Washington Evidence Rules admit prior inconsistent statements of a witness only if made under oath subject to cross-examination.(fn18) The Act, however, permits admission of prior inconsistent statements even if not made under oath. The Act still requires indicia of reliability before the statement can be admitted, but the reliability need not be limited to the under oath requirement. The same necessity exists as with the prior consistent statement, and there is the same opportunity to observe and cross-examine the witness.

III. The Unavailable Declarant

The Act expands the existing hearsay structure and undermines basic hearsay principles by admitting hearsay of incompetent children. The Act's failure to define unavailability leaves open the possibility that a child may be unavailable to testify because of incompetence. The Act apparently allows indicia of reliability and corroboration to rehabilitate the statement of a child too untrustworthy to testify in open court. Since trustworthiness is a basic requirement for any hearsay exception, this application of the Act puts it in direct conflict with existing exceptions.

The Act requires corroboration of the abuse-an explicit recognition that more than indicia of reliability is necessary to provide guarantees of trustworthiness when the declarant is unavailable. To the extent that it allows the hearsay declaration of an unavailable declarant, the Act falls within the ambit of Rule 804.(fn19) Rule 803 admits hearsay regardless of declarant availability(fn20) because the circumstances surrounding the declaration lend the required guarantees of trustworthiness.(fn21) Recognizing that some hearsay is less reliable,(fn22) however, Rule 804 allows its admission only if the declarant is unavailable.(fn23) Rule 804 carefully circumscribes the type of admissible hearsay:(fn24) it permits its admission only if the declarant is unavailable and limits unavailability to specific circumstances. The Act, though, admits any hearsay deemed reliable by the court,(fn25) thus creating a broad exception where there previously existed only a very narrow one.

A witness is unavailable with respect to Rule 804 if he is dead,(fn26) not subject to process,(fn27) or privileged not to testify.(fn28) A witness is also...