CHILDREN
§ 1. Children As Witnesses.
§ 1(a). Competency to Testify.
§ 1(b). Special Procedures.
§ 1(c). Depositions.
§ 2. Sexual Abuse.
§ 2(a). Hearsay Statements by Children.
§ 2(b). Defendant’s Prior Acts of Child Abuse.
§ 2(c). Expert Testimony.
§ 2(d). Sufficiency of Uncorroborated Testimony of Child.
§ 3. Presumption of Ability to Have Children.
§ 4. Relevance of Party Having Children As Background
See also: LEGITIMACY; PARENT-CHILD PRIVILEGE; PATERNITY; PHYSICIAN-PATIENT PRIVILEGE; RECOVERED MEMORIES
SEXUAL ASSAULT.
1. Children As Witnesses
1(a). Competency to Testify
Children are no longer disqualified from testifying based on their age, as was the traditional common law rule.{footnote}Wheeler v. United States, 159 U.S. 523, 524 (1895); United States v. Schoefield, 465 F.2d 560, 561-62 (D.C. Cir.) (per curiam), cert. denied, 409 U.S.. 881 (1972).
Conn. Gen. Stat. § 54-86h; State v. Whittier, 21 Me. 341, 347 (1842); Washburn v. People, 10 Mich. 372 (1862); State v. Edwards, 79 N.C. 648 (1878); South Carolina Dep’t of Social Serv. v. John Doe, 355 S.E.2d 543, 547 (S.C. Ct. App. 1989).
McCormick On Evidence § 62, at 156 (E. Cleary 3d ed. 1984).{/footnote} Moreover, the court generally is not required to make a preliminary determination of competency before allowing a child to testify.{footnote}Conn. Gen. Stat. § 54-86h (no preliminary determination of competency required in sexual abuse cases); Iowa R. Evid. 601 (children presumed competent); Minn. Stat. Ann. § 595.02(6) (West Supp. 1984) (no preliminary determination of competency required in sexual abuse cases); Mo. Ann. Stat. § 491.060(2) (Vernon Supp. 1984) (same); Tex. R. Crim. Evid. 601 (a)(2) (child is considered competent unless it appears that she does not possess sufficient intellect to relate the transaction about which she will testify); Utah Code Ann. § 76-5-410 (Supp. 1983) (no preliminary determination of competency required in sexual abuse cases); State v. Naucke, 829 S.W.2d 445 (Mo. 1992) (upholding constitutionality of Mo. Ann. Stat. § 491.060(2)); Broussard v. State, 910 S.W.2d 952 (Tex. Crim. App. 1995) (judge cannot force child to undergo psychiatric evaluation for the purpose of a competency determination).
See also 2 J. Wigmore, Evidence § 509, at 719-20 (1979) (preliminary finding unnecessary).
See also COMPETENCE.
But see People v. Wolfe, 531 N.E.2d 152, 153 (Ill. App. Ct. 1988).
CHECK United States v. Hardin, 443 F.2d 735, 737 (D.C. Cir. 1970); Doran v. United States, 205 F.2d 717, 718 (D.C. Cir.), cert, denied, 346 U.S. 828 (1953).{/footnote}
Some courts have gone so far as to state that age is not a factor in determining competency.{footnote}United States v. Perez, 526 F.2d 859, 865 (5th Cir.), cert. denied, 429 U.S. 846 (1976); Pocatello v. United States, 394 F.2d 115, 117 n.4 (9th Cir. 1968); United States v. Hardin, 443 F.2d 735, 737 (D.C. Cir. 1970).{/footnote} Instead, the court must base its determination on the "capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former."{footnote}Wheeler v. United States, 159 U.S. 523, 524 (1895); United States v. Spoonhunter, 476 F.2d 1050, 1054 (10th Cir. 1973); United States v. Schoefield, 465 F.2d 560, 562 (D.C. Cir.) (per curiam), cert. denied, 409 U.S. 881 (1972); Pocatello v. United States, 394 F.2d 115, 117 n.4 (9th Cir. 1968).
People v. Wolfe, 531 N.E.2d 152, 153 (Ill. Ct. App. 1988); State v. Struss, 404 N.W.2d 811, 814 (Minn. Ct. App. 1987) (court may find a child under ten years old incompetent to testify if the child "lacks capacity to remember or to relate truthfully facts respecting which [he is] examined").
McCormick On Evidence § 62, at 156 (E. Cleary 3d ed. 1984).
See also Colo. Rev. Stat. § 13-90-106(1)(b)(II) (1985 Cum. Supp.) (child under ten can testify in a civil or criminal proceeding charging sexual abuse if the child is able to testify in language appropriate for a child of the age).
But see People v. District Court, 791 P.2d 682, 685 (Colo. 1990) (en banc) (child may testify even if unable to understand obligation to testify truthfully); Galindo v. United States, 630 A.2d 202, 207 (D.C. 1993) (child may testify even if unable to understand obligation to testify truthfully).{/footnote} See COMPETENCY. In addition, the court must be satisfied that the child, at the time of the incidents in question, was able to observe and remember what happened around him or her.{footnote}Pocatello v. United States, 394 F.2d 115 (9th Cir. 1968); United States v. Schoefield, 465 F.2d 560, 562 (D.C. Cir.) (per curiam), cert. denied, 409 U.S. 881 (1972); Webster v. Peyton, 294 F. Supp. 1359 (D.C. Va. 1968).
~Cole v. State, 443 So. 2d 1386, 1390 (Ala. Crim. App. 1983) (court should determine whether child witness "has sufficient intelligence to observe, recollect, and narrate what occurs, and has sufficient mental capacity to be a witness"); People v. Wolfe, 531 N.E.2d 152, 153 (Ill. App. 1988).
See generally 81 ALR2d 386.{/footnote} See also RECOVERED MEMORIES.
Whether a child is deemed competent is matter within the discretion of the trial court.{footnote}Wheeler v. United States, 159 U.S. 523, 524-25 (1895); United States v. Hardin, 443 F.2d 735, 737 (D.C. Cir. 1970).
See also State v. Ward, 455 S.E.2d 666 (N.C. App. 1995) (trial judges find child witnesses to be competent in "vast majority" of cases).{/footnote} Children as young as four have been found competent to testify.{footnote}In re AMC, 148 Ill. App. 3d 775, 500 N.E.2d 104 (2d Dist. 1986) (age five); Sobotta v. Carlson, 65 Ill. App. 3d 752, 382 N.E.2d 855 (3d Dist. 1978) (age six).{/footnote} In some states, children over a certain age are presumed competent to testify, whereas those younger must be shown competent by the offering party.{footnote} 159 A.L.R. 1102. See also PRESUMPTIONS.{/footnote}
The manner in which a child’s competence is determined is within the trial court’s discretion.{footnote}United States v. Schoefield, 150 App. D.C. 380, 465 F.2d 560 (1972).{/footnote} A voir dire examination may be conducted either in court or in camera.{footnote}Ill. Rev. Stat. ch. 38, & 106A-5.{/footnote} It is not a violation of a defendant’s confrontation or due process rights to exclude him from the hearing.{footnote}Kentucky v. Stincer, 482 U.S. 730, 739-44 (1987) (confrontation right not violated by exclusion of defendant from competency hearing of child witnesses, where defendant had opportunity for full and effective cross-examination at trial (1987).{/footnote}
1(b). Special Procedures for Presenting Testimony
Often special procedures are followed by courts with child witnesses in order to obtain the child’s testimony. In some jurisdictions the court may dispense with the requirement that the child take a sworn oath,{footnote}Fla. Stat. Ann. § 90.605(2) (West Supp. 1994).{/footnote} and some allow an adult to accompany the child on the stand for support.{footnote}Ark. Code Ann. § 16-42-102 (Michie 1987); Cal. Penal Code § 868.5 (West Supp. 1994); Haw. Rev. Stat. § 621-28 (1988); Idaho Code § 19-3023 (Supp. 1994); Idaho R. Evid. 615(c) (Michie 1993); Mich. Comp. Laws Ann. § 24.275a (West 1994); Minn. Stat. Ann. § 631.046 (West Supp. 1994); R.I. Gen. Laws § 12-28-9(2) (Supp. 1993); Wash. Rev. Code Ann. § 7.69A.030(2), (7), & (8) (West 1992).{/footnote} Leading questions are sometimes allowed.{footnote}United States v. Iron Shell, 633 F.2d 77, 92 (8th Cir. 1980), cert. denied, 450 U.S. 1001 (1981).
State v. Brown, 574 A.2d 745, 748 (R.I. 1990) (leading questions permitted where 16-year-old did not understand prosecutor’s questions regarding penetration); State v. Hale, 326 S.E.2d 418 (S.C. Ct. App. 1985); Ala. Code § 15-25-3(c) (Supp. 1994).{/footnote} Children too embarrassed to speak up in court have been allowed to whisper their answers to an adult, who repeats the answers for others in the courtroom.{footnote}United States v. Romey, 32 M.J. 180 (C.M.A. 199) (child allowed to whisper answers to questions to adult who repeated them to court).
Parisi v. Superior Court, 144 Cal. App. 3d 211, 192 Cal. Rptr. 486, 491 (1983) (eight year old allowed to whisper answer to magistrate as to where the defendant had touched her).{/footnote} Most of these procedures, however, involve somehow blocking the defendant from the child’s view. Such procedures have been challenged as an infringement of the defendant’s right to face-to-face confrontation, with only partial success.
The United States Supreme Court has addressed this issue twice. In Coy v. Iowa, the Court struck down as unconstitutional an Iowa statute which allowed two thirteen-year-old witnesses to testify with a screen blocking their view of the defendant, on the grounds that the statute infringed upon the defendant’s right of face-to-face confrontation without any showing required that such a confrontation would have rendered the children unable to testify.{footnote}487 U.S. 1012 (1988) (striking down Iowa Code Ann. § 910A.14(1) (West Supp. 1989)).
See also Herbert v. Superior Court, 117 Cal. App. 3d 661, 664-65, 671, 172 Cal. Rptr. 850, 851, 855 (1981) (seating of the defendant so that he and child could not see each other held unconstitutional).
{/footnote} In Maryland v. Craig, however, the Court affirmed the use of a one-way closed-circuit television procedure where such a showing was made by prosecution.{footnote}497 U.S. 836 (1990) (upholding Md. Cts. & Jud. Proc. Code Ann. § 9-102 (1989).
{/footnote} The witness, the prosecutor and the defense attorney were placed in a special room, and the questioning was broadcast into the courtroom, where the defendant watched along with the judge and jury. The defendant and his attorney were able to communicate to one another, and the attorneys were able to make objections and obtain rulings during the questioning.{footnote}497 U.S. at ____(1990).{/footnote} The Court held that the right to face-to-face confrontation is not absolute, but may be dispensed with when “necessary to further an important public policy and …where the reliability of the testimony is otherwise assured.”{footnote}Id. at ____.{/footnote} There must be a case-specific finding of necessity, but that finding may be made based on expert testimony. The trial court must find that the child witness will be traumatized, not by the courtroom generally, but by the presence of the defendant. The emotional impact on the child must be more than "mere nervousness or excitement or some reluctance to testify." The trial court need not observe the witness in the defendant’s presence, and the court need not first determine whether a two-way closed-circuit arrangement (whereby the witness can view the defendant and others in the courtroom on a television monitor) would be sufficient.{footnote}Id. at _____.{/footnote}
Following Maryland v. Craig, some courts have upheld the use of a screen to block the child witness’ view of the defendant where appropriate findings of necessity have been made.{footnote}E.g., State v. Davis, 830 P.2d 1309 (Mont. 1992) (use of screen constitutional, following Maryland v. Craig).
But see Smith v. State, 894 P.2d 974 (Nev. 1995) (conviction reversed where prosecutor intentionally stood between defendant and witness to block their view of one another). {/footnote} Many states have enacted statutes authorizing closed-circuit testimony, either one-way{footnote}Ala. Code § 15-25-3 (1994) (defendant must be in same room as witness); Alaska Stat. Ann. § 12.45.046 (1993); Ariz. Rev. Stat. Ann. § 13-4253 (1994); Conn. Gen. Stat. § 54-86g (1994); Fla. Stat. § 92.54 (1994); Ga. Code Ann. § 17-8-55 (Supp. 1994); Ill. Rev. Stat., ch. 38, para. 106A-3 (1994); Ind. Code § 35-37-4-8 (1994); Iowa Code § 910A-14 (Supp. 1994); Kan. Stat. Ann. § 38-1558 (1993); Ky. Rev. Stat. Ann. §§ 421-350 (1993); La. Rev. Stat. Ann. § 15:283 (1994); Md. Cts. & Jud. Proc. Code Ann. § 9-102 (1994); Mass. Gen. Laws § 278:16D (1994); Minn. Stat. § 595.02(4) (1994); Miss. Code Ann. § 13-1-405 (Supp. 1993); N. J. Stat. Ann. § 2A:84A-32.4 (1994); Okla. Stat., tit. 22, § 753(b) (Supp. 1994); Ore. Rev. Stat. § 40.460(24) (1993); 42 Pa. Cons. Stat. §§ 5982, 5985 (1988); R. I. Gen. Laws § 11-37-13.2 (Supp. 1993); Tex. Code Crim. Proc. Ann., Art. 38.071, § 3 (1994); Utah R. Crim. Proc. 15.5 (1994); Vt. R.Evid. 807(d) (1993).{/footnote} or two-way.{footnote}Cal. Penal Code Ann. § 1347 (1994); Haw. Rev. Stat., ch. 626, R. Evid. 616 (1994); Idaho Code § 19-3024A (1994); Minn. Stat. § 595.02(4) (1994); N. Y. Crim. Proc. Law § 65.00 (1994); Ohio Rev. Code Ann. §§ 2907.41 (1993); Va. Code Ann. § 18.2-67.9 (1994); Vt. R. Evid. 807(e) (Supp. 1989).{/footnote} The use of such testimony has been upheld by some courts as constitutional where the individualized findings of necessity mandated by Maryland v. Craig were made.{footnote}State v. Wilhite, 160 Ariz. 228, 772 P. 2d 582 (1989); State v. Bonello, 210 Conn. 51, 554 A. 2d 277 (1989); Leggett v. State, 565 So. 2d 315, 318 (Fla. 1990); State v. Davidson, 764 S. W. 2d 731 (Mo. App. 1989); Commonwealth v. Ludwig, 366 Pa. Super. 361, 531 A. 2d 459 (1987).
But see Hopkins v. State, 632 So. 2d 1372 (Fla. 1994) (admission of testimony erroneous where trial court failed to make specific findings of fact, on the record, as to the basis for its ruling on necessity).
CHECK State v. Crandall, 577 A.2d 483 (N.J. 1990).{/footnote} Other courts have approved of closed-circuit testimony even in the absence of an enabling statute.{footnote}Hicks-Bey v. U.S., 649 A.2d 569 (D.C. App. 1994) (per curiam); Gonzales v. State, 818 S.W.2d 756, 766 (Tex. Crim. App. 1991) (en banc), cert. denied, 122 L. Ed. 2d 718, 113 S. Ct. 1334 (1993).
Contra Hochheiser v. Superior Court, 161 Cal. App. 3d 777, 208 Cal. Rptr. 273 (1984) (testimony of child victims of sex crimes could not be taken by two-way closed circuit television because California had no statute allowing such testimony).{/footnote} On the other hand, some courts, relying on confrontation rights secured by state constitutions, have rejected the result of Maryland v. Craig, holding that the defendant has the right to be confronted face-to-face with the child witness.{footnote}People v. Fitzpatrick, 633 N.E.2d 685 (Ill. 1994) (invalidating Ill. Rev. Stat. 1991, ch. 38, par. 106B-1), superseded the same year by amendment to Ill. Const. art. I, § 8; Commonwealth v. Ameriault, 677 N.E.2d 652 (Mass. 1997) (seating arrangements invalidated); Commonwealth v. Bergstrom, 524 N.E.2d 366 (Mass. 1988) (closed-circuit testimony invalidated); Commonwealth v. Ludwig, 527 Pa. 472, 473, 594 A.2d 281 (1991), superceded by constitutional amendment.
CHECK Nelson v. Farrey, 874 F.2d 1222 (7th Cir. 1989), cert. denied U.S. , 110 S. Ct. 835, 107 L. Ed. 2d 831 (1990) (The U.S. Court of Appeals for the Seventh Circuit held that a psychologist’s testimony that a child victim of abuse would be unable to testify and be psychologically harmed is sufficient to show unavailability for purposes of confrontation clause analysis); State v. Robinson, 153 Ariz. 191, 735 P.2d 801 (1987) (upholding a trial judge who based his finding of unavailability on expert testimony indicating that a child abuse victim would be uncommunicative if asked about the assault and could be further traumatized by courtroom proceedings).{/footnote}
When children who are too intimidated to testify in court, prosecutors are sometimes allowed to present a pre-recorded videotape of their testimony, including any cross-examination.{footnote}Ala. Code § 15-25-2 (1994); Ariz. Rev. Stat. Ann. §§ 13-4251 to -4253 (1994); Ark. Code Ann. § 16-44-203 (1993); Cal. Penal Code Ann. § 1346 (1994); Colo. Rev. Stat. §§ 18-3-413 and 18-6-401.3 (1994); Conn. Gen. Stat. § 54-86g (1994); Del. Code Ann., Tit. 11, § 3511 (1993); Fla. Stat. § 92.53 (1994); Haw. Rev. Stat., ch. 626, Rule Evid. 616 (1994); Ill. Rev. Stat., ch. 38, para. 106A-2 (1994); Ind. Code §§ 35-37-4-8 (1994); Iowa Code § 910A.14 (1994); Kan. Stat. Ann. § 38-1558 (1993); Ky. Rev. Stat. Ann. § 421.350 (1993); Mass. Gen. Laws § 278:16D (1994); Mich. Comp. Laws Ann. § 600.2163a (1994); Minn. Stat. § 595.02(4) (1994); Miss. Code Ann. § 13-1-407 (1993); Mo. Rev. Stat. §§ 491.675-491.690 (1993); Mont. Code Ann. §§ 46-15-401 to 46-15-403 (1993); Neb. Rev. Stat. § 29-1926 (1993); Nev. Rev. Stat. § 174.227 (1993); N. H. Rev. Stat. Ann. § 517:13-a (Supp. 1993); N. M. Stat. Ann. § 30-9-17 (1994); Ohio Rev. Code Ann. §§ 2907.41 (1993); Okla. Stat., tit. 22, § 753(c) (1993); Ore. Rev. Stat. § 40.460(24) (1993); 42 Pa. Cons. Stat. §§ 5982, 5984 (1994); R. I. Gen. Laws § 11-37-13.2 (1993); S. C. Code Ann. § 16-3-1530(G) (1993); S. D. Codified Laws § 23A-12-9 (1994); Tenn. Code Ann. §§ 24-7-116 (1994); Tex. Code Crim. proc. Ann., Art. 38.071, § 4 (1994); Utah R. Crim. Proc. 15.5 (1994); Vt. R. Evid. 807(d) (1993); Wis. Stat. §§ 967.04(7)-(10) (1994); Wyo. Stat. § 7-11-408 (1994).
See also N.Y. Crim. Proc. Law § 190.30(4) (Consol. 1985) (admitting videotaped testimony of child victims of sex crimes at a grand jury hearing but not at trial).
See generally Note, Videotaped Child Testimony and the Confrontation Clause: Are They Reconcilable?, 14 U. DAYTON L. REV. 361 (1989) (listing the 33 state statutes allowing videotaped testimony in sexual child abuse cases).
MacFarlane, Diagnostic Evaluations and the Uses of Videotapes in Child Sexual Abuse Cases, in Papers From A National Policy Conference On Legal Reforms In Child Sexual Abuse Cases 119, 121 (1985).
Contra People v. Johnson, 118 Ill. 2d 501, 517 N.E.2d 1070 (1987).
CHECK Me. Rev. Stat. Ann. tit. 15, § 1205 (Supp. 1984-1985).{/footnote} Such testimony ordinarily would be hearsay,{footnote}Lloyd, Practical Issues in Avoiding Confrontation of a Child Witness and the Defendant in a Criminal Trial, in Papers From A National Policy Conference On Legal Reforms In Child Sexual Abuse Cases 275, 277-80 (1985).{/footnote} and if the witness is not produced at trial for cross-examination,{footnote}See generally California v. Green, 399 U.S. 149 (1970) (confrontation clause not violated by admission of statement made under oath and subject to cross-examination where declarant is present at trial). See also CONFRONTATION. {/footnote} would violate a defendant’s right to confrontation.{footnote}See State v. Vincent, 768 P.2d 150 (Ariz. 1989) (in murder case, defendant’s state and federal right to confront adverse witnesses violated where prosecution presented videotaped testimony of his minor children without making individualized showing of necessity); Brady v. State, 575 N.E.2d 981 (Ind. 1991) (invalidating statute allowing videotaped testimony, Ind. Code 35-37-4-8)).
But see Glendening v. State, 536 So. 2d 212, 217 (Fla. 1988) (no violation of right to confrontation by Fla. Stat. Ann. § 92.53 (1987), which permits videotaping of child’s testimony).{/footnote} Some courts have held that such testimony is admissible where there has been an individualized finding of necessity.{footnote}E.g., State v. Bonello, 554 A.2d 277 (Conn. 1989), cert. denied, 109 S.Ct. 2103, 104 L.Ed.2d 664, reh’g den., 109 S.Ct. 2103, 104 L.Ed.2d 612 (permitting videotaped testimony of child sexual assault victim); Glendening v. State, 536 So. 2d 212 (Fla. 1988) (use of videotaped testimony taken outside accused’s physical presence permissible under Coy where trial court made particularized findings of emotional harm); State v. Naucke, 829 S.W.2d 445 (Mo. 1992); State v. Tafoya, 765 P.2d 1183 (N.M.), cert. denied, 765 P.2d 758 (1988) (use of videotaped testimony taken outside accused’s physical presence permissible under Coy because specific findings required and evidence showed accuracy of testimony would be enhanced);
See also People v. Thomas, 770 P.2d 1324 (Colo. App. 1988) (use of videotaped deposition taken outside accused’s presence permissible under Coy).
But see State v. Eastham, 530 N.E.2d 409 (Ohio 1988) [***18] (use of videotaped testimony not permissible under Coy where no particularized findings of need made).
{/footnote}
2. Hearsay Statements Regarding Sexual Abuse
2(a). The Excited Utterance Exception
Courts have admitted spontaneous declarations of children made shortly after a sexual attack due to the special guarantees of credibility inherent in statements under those circumstances. {footnote}Wright v. Illinois, 112 S.Ct. 736 (1992).
People v. Lewis, 498 N.E.2d 1169 (Ill. App. Ct.), cert. denied, 482 U.S. 907 (1986).
Check Doe v. United States, 976 F.2d 1071 (7th Cir. 1992), cert. denied, 510 U.S. 812, 114 S.Ct. 58, 126 L.Ed.2d 28; Morgan v. Foretich, 846 F.2d 941, 946 (4th Cir. 1988)State v. Michaels, 625 A.2d 489 (N.J. Super. Ct. App. Div. 1993).{/footnote} Under FRE 803(2) and its state counterparts, "[a] statement relating to startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" is excepted from the hearsay rule.
Traditionally, to be admissible under this exception, a statement must have been made during or immediately after the exciting occurrence to which it relates.{footnote}State v. Russell, 872 S.W.2d 866, 879 (Mo. Ct. App. 1994) (statements made under excitement of being examined by doctor held not to be excited utterances).{/footnote} See EXCITED UTTERANCES. In child sexual abuse cases, however, courts have relaxed this requirement, admitting statements made hours after the alleged abuse occurred,{footnote}State v. Parker, 730 P.2d 921, 924 (Idaho 1986); People v. Nevitt, 553 N.E.2d 368 (Ill. 1990) (statement made five hours after the alleged incident admissible); Moore v. State, 338 A.2d 344, 346 (Md. App. 1975) (statement made by three year old within hours of injury admissible); Smith v. State, 252 A.2d 277 (Md. Ct. Spec. App. 1969) (statements made four and one-half to five hours after rape admissible); State v. Bouchard, 639 P.2d 761, 762-63 (Wash. App. 1982) (statement made by three year old within hours of sexual abuse admissible).
McCormick on Evidence, § 297, at 859 n.49.{/footnote} the next day,{footnote}Morgan v. Foretich, 846 F.2d 941, 947 (4th Cir. 1988) (statements by four-year-old about molestation the night before admssible).
State ex rel. Harris v. Schmidt, 230 N.W.2d 890, 898-99 (Wis. 1975) (statements by five year old made within a day of sexual abuse admissible); Love v. State, 219 N.W.2d 294, 299 (Wis. 1974) (statements made by three year old the morning after sexual abuse admissible).
But see Matthews v. State, 515 N.E.2d 1105, 1107 (Ind. 1987) (statement statement made over 30 hours after alleged incident inadmissible); People v. Allen, 568 N.Y.S.2d 132, 134 (N.Y. App. Div. 1991) (statements made morning after alleged attack inadmissible). {/footnote} days later,{footnote}State v. Galvan, 297 N.W.2d 344 (Iowa 1980) (statement made 2 days after offense admissible); State v. Plant, 461 N.W.2d 253, 264 (Neb. 1990) (statement made by four-year-old two days after alleged incident and after police questioning admissible); In re Interest of R.A. and V.A., 403 N.W.2d 357 (Neb. 1987) (statements made after returning from a weekend visit with a noncustodial parent during which a sexual assault occurred held admissible); State v. Padilla, 110 Wis. 2d 414, 329 N.W.2d 263 (Wis. 1982) (statement made 3 days after final incident admissible).{/footnote} and even two months later.{footnote}In re Marriage of Theis, 460 N.E.2d 912 (Ill. Ct. App. 1984). {/footnote} The fact that the statements were made after the children were questioned by authorities does not necessarily render them inadmissible.{footnote}United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980), cert. denied 450 U.S. 1001 (1981).
In re O.E.P., 654 P.2d 312, 318 (Colo. 1982); People v. Woodward, 21 Mich. App. 549, 175 N.W.2d 842 (1970); State v. Plant, 461 N.W.2d 253, 264 (Neb. 1990).{/footnote} One court has stated, such statements are rendered particularly trustworthy because of “the lack of capacity to fabricate rather than the lack of time to fabricate."{footnote}In re O.E.P., 654 P.2d 312, 318 (Colo. 1982).{/footnote} It has also been pointed out that children often delay reporting abuse out of fear, loyalty, lack of comprehension, especially when the abuser is a family member.{footnote}Marks, Should We Believe the People Who Believe the Children?: The Need for a New Sexual Abuse Tender Years Hearsay Exception Statute, 32 Harv. J. on Legis. 207, 229 (1995), citing, State v. J.C.E., 767 P.2d 309, 314 (Mont. 1988) and David Finklehor, Sexually Victimized Children 65 (1979) (only 26% of women who were sexually molested as children felt "shock" and only 20% felt "surprised").{/footnote}
In White v. Illinois, the United States Supreme Court held that for purposes of the Confrontation Clause, this exception is “firmly rooted,” and therefore a child’s out-of-court statements admitted in a child sexual abuse case under this exception satisfy the “reliability” requirement.{footnote}112 S. Ct. 736 (1992).{/footnote} See CONFRONTATION.
2(b). Statements to Physicians
Courts have admitted statements made by a child to a physician regarding past episodes of abuse due to the special guarantees of credibility inherent in statements under those circumstances.{footnote}White v. Illinois, ___ U.S. ___ (1992); United States v. Tome, 61 F.3d 1446 (10th Cir. 1995).
In re Marriage of Theis, 460 N.E.2d 912 (Ill. App. Ct. 1984) (statements made by child to physician months after alleged abuse admissible); Edwards v. Commonwealth, 833 S.W.2d 842, 845 (Ky. 1992).
But see People v. LaLone, 437 N.W.2d 611 (Mich. 1989) (statements to psychologist for purposes of psychological, not medical, treatment held inadmissible).
Check Doe v. United States, 976 F.2d 1071 (7th Cir.), cert. denied, 510 U.S. 812 (1992).Check United States v. Spotted War Bonnet, 933 F.2d 1471 (8th Cir. 1991), cert. denied, 112 S.Ct. 736 (1992).{/footnote} Under FRE 803(4) and its state counterparts, an examining physician may testify as to “Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." Statements relating to the cause of an injury are admissible under this exception if "reasonably pertinent" to treatment or diagnosis,{footnote}FRE 803(4) Advisory Committee Note; United States v. Iron Shell, 633 F.2d 77, 83-85 (8th Cir. 1980) (child victim’s description of sexual abuse to doctor admissible because cause of injury was reasonably pertinent to treatment), cert. denied, 450 U.S. 1001 (1981); United States v. Nick, 604 F.2d 1199, 1201-02 (9th Cir. 1979) (per curiam) (physician allowed to testify as to child victim’s statements of causation but not as to statements concerning identity of the molester).{/footnote} but statements as to fault are generally inadmissible.{footnote}FRE 803(4) Advisory Committee Note; United States v. Cherry, 938 F.2d 748, 756 n.14 (7th Cir. 1991); United States v. Nick, 604 F.2d 1199, 1201-02 (9th Cir. 1979) (per curiam) (physician allowed to testify as to child victim’s statements of causation but not as to statements concerning identity of the molester).
Sluka v. State, 717 P.2d 394, 399 (Alaska App. Ct. 1986); State v. Jones, No. 80,069, 1993 Fla. LEXIS 1344 (Fla. Aug. 26, 1993); Wilson v. State, 390 S.E.2d 903 (Ga. App. Ct. 1990); People v. Hall, 601 N.E.2d 883, 896 (Ill. App. Ct. 1992) (identification not admissible "merely because one of the options of treatment might have included removal of [the child] from defendant’s home. . . ."), cert. denied, 113 S. Ct. 2341 (1993); State v. True, 438 A.2d 460 (Me. 1981); Cassidy v. State 536 A.2d 666, 684-85 (Md. Ct. Spec. App. 1988), cert. denied, 541 A.2d 965 (Md. 1988); State v. Russell, No. 18699, 1994 Mo. App. LEXIS 492, at *10 (Mo. Ct. App. Mar. 22, 1994); State v. Veluzat, 578 A.2d 93, 96 (R.I. 1990); State v. Gorkey, 574 A.2d 766, 772 (Vt. 1990).
McCormick on Evidence, § 292, at 839-40.
But see State v. Aguallo, 350 S.E.2d 76 (N.C. 1986) (statements made to a doctor in anticipation of prosecution identifying defendant as perpetrator admissible).{/footnote} A number of courts, however, have held that a statement identifying the alleged abuser is admissible if he or she is a member of the child’s immediate family.{footnote}Morgan v. Foretich, 846 F.2d 941 (4th Cir. 1988) (applying the same rules of evidence in a civil case); Conn v. Wells, No. 93-1313, 1994 U.S. App. LEXIS 1803 (6th Cir. Feb. 1, 1994) (identification admissible despite two false identifications made by the child to the doctor); U.S. v. Renville, 779 F.2d 430, 437-38 (8th Cir. 1985); United States v. George, 960 F.2d 97, 99 (9th Cir. 1992); United States v. Tome, 61 F.3d 1446, 1450 (10th Cir. 1995); United States v. Joe, 8 F.3d 1448, 1495 (10th Cir. 1993).
State v. Robinson, 735 P.2d 801 (Ariz. 1987); Stallnacker v. State, 715 S.W.2d 883 (Ark. 1986); State v. Depastino, No. 14695, 1994 Conn. LEXIS 49 (Conn. Feb. 22, 1994); State v. Tracy, 482 N.W.2d 675 (Iowa 1992); Edwards v. Commonwealth, 833 S.W.2d 842 (Ky. 1992); People v. Meeboer, 484 N.W.2d 621, 629 (Mich. 1992); Jones v. State, 606 So. 2d 1051 (Miss. 1992); State v. Thompson, No. 93-134, 1993 Mont. LEXIS 407 (Mont. Dec. 22, 1993); State v. Altgilbers, 786 P.2d 680 (N.M. App. Ct. 1989); State v. Aguallo, 350 S.E.2d 76 (N.C. 1986); State v. Dever, 596 N.E.2d 436 (Ohio 1992), cert. denied, 113 S. Ct. 1279 (1993); Kennedy v. State, 839 P.2d 667 (Okla. Crim. App. 1992); State v. Moen, 786 P.2d 111 (Or. 1990); State v. Garza, 337 N.W.2d 823 (S.D. 1983); State v. Livingston, No. 01-C-01-9012-CR-00337, 1991 Tenn. Crim. App. LEXIS 770 (Tenn. Crim. App. Sept. 17, 1991); State v. Ashcraft, 859 P.2d 60 (Wash. 1993); State v. Edward Charles L., 398 S.E.2d 123 (W. Va. 1990).
{/footnote}
In White v. Illinois, the United States Supreme Court held that for purposes of the Confrontation Clause, this exception is “firmly rooted,” and therefore a child’s out-of-court statements admitted in a child sexual abuse case under this exception satisfy the “reliability” requirement.{footnote}112 S. Ct. 736 (1992).{/footnote} See CONFRONTATION.
2(c). Res Gestae
Hearsay statements of children have sometimes been held admissible under the common law res gestae exception.{footnote}State v. Boodry, 394 P.2d 196, 199 (Ariz.) (en banc) (statement made by five year old to the first person she saw after allegedly being raped by her father admissible), cert. denied, 379 U.S. 949 (1964); State v. Duncan, 373 N.E.2d 1234, 1235-36, 1238 (Ohio 1978) (statement made by six year old within hours of sexual abuse admissible); Love v. State, 219 N.W.2d 294, 299 (Wis. 1974) (statements made by three year old the morning after sexual abuse admissible).
But see State v. Lovely, 517 P.2d 81, 82 (Ariz. 1973) (en banc) (statement made by seven year old two weeks after sexual abuse not admissible as part of res gestae).
See also RES GESTAE.
{/footnote} The res gestae doctrine generally allows a party to introduce into evidence any statements made at the time of the occurrence which is the subject of the litigation.{footnote}McCormick on Evidence, § 288, at 835-36.{/footnote}
2(d). Prior Consistent Statements
Hearsay statements of children have sometimes been offered as prior consistent statements. To be admissible as a prior consistent statement, however, the child’s statement must have been made before there existed a motive to fabricate.{footnote}United States v. Tome, 115 S. Ct. 696 (1995) (statements made by four-year-old to baby sitter, social worker, and child’s mother, implicating the child’s father for sexually abusing her, held inadmissible); United States v. White, 11 F.3d 1446, 1450-51 (8th Cir. 1993) (child’s prior consistent statements regarding sexual abuse should not have been admitted because at the time the statements were made the alleged motive, a desire to live in the mother’s house, would already have arisen).
State v. Haslam, 663 A.2d 902, 908 (R.I. 1995) (excluding a prior consistent statement, retold by a counselor, alleging child molestation because the prior statement was made after the alleged motive to lie formed).{/footnote}
2(e). The “Fresh Complaint” Doctrine
Hearsay statements of children have sometimes been held admissible under the common law “fresh complaint” doctrine.{footnote}People v. Manuel M., 278 Cal. Rptr. 853 (Cal. Ct. App. 1991); State v. Pollitt, 530 A.2d 155, 163 (Conn. 1987) (en banc); Galindo v. United States, 630 A.2d 202, 209 (D.C. 1993); Wilson v. State, 397 S.E.2d 59 (Ga. Ct. App. 1990); Commonwealth v. Lavalley, 574 N.E.2d 1000 (Mass. 1991); State v. Bethune, 578 A.2d 364 (N.J. 1990); Commonwealth v. Stohr, 522 A.2d 589 (Pa. Super. Ct. 1987); State v. Livingston, C.C.A. No. 01-C-01-9012-Cr-00337, 1991 Tenn. Crim. App. LEXIS 770 (1991).
CHECK Commonwealth v. Brenner, 465 N.E.2d 1229, 1231 (Mass. App. Ct. 1984) (noting that "in prosecutions involving sexual abuse of or assault of children, the cases have not insisted on great promptness in the making of the complaint" because the perpetrators of the abuse are often friends or relatives of the victim, "have his or her confidence, and by persuasion or threat, express or implied, induce the child’s silence" (citations omitted));{/footnote} This hearsay exception admits a sexual assault victim’s prompt complaint to corroborate the victim’s testimony at trial. See FRESH COMPLAINT DOCTRINE. While the federal rules contain no “fresh complaint” exception as such, complaints of sexual abuse made soon after the alleged abuse occurred may fall within the exceptions for prior consistent statements or excited utterances.
2(f). The Residual Exception
Hearsay statements of children have sometimes been held admissible under a “residual” exception to the hearsay rule.{footnote}United States v. Tome, 115 S. Ct. 696 (1995) (statements made by four-year-old to baby sitter, social worker, and child’s mother, implicating the child’s father for sexually abusing her, held inadmissible under rule for prior consistent statements; Court noted FRE 803(24) as potentially applying); United States v. St. John, 851 F.2d 1096, 1098 (8th Cir. 1988); United States v. Nick, 604 F.2d 1199 (9th Cir. 1979).
State v. Robinson, 735 P.2d 801, 810-12 (Ariz. 1987); Oldsen v. People, 732 P.2d 1132, 1136-37 (Colo. 1986); State v. Dollinger, 568 A.2d 1058, 1062-64 (Conn. Ct. App. 1990); State v. Plant, 461 N.W.2d 253, 264 (Neb. 1990) applying Neb. Rev. Stat. §§ 27-803(22) and 27-804 (1989).
But see United States v. Tome, 61 F.3d 1446, 1453-55 (10th Cir. 1995) (holding on remand that statements to social worker and baby sitter inadmissible under FRE 803(24)).
Contra People v. Bowers, 801 P.2d 511, 517 (Colo. 1990).{/footnote} With respect to FRE 804(5) and its state counterparts, which require a showing that the child is “unavailable”, child victims of abuse have been held unavailable where they would suffer emotional trauma if called to testify.{footnote}State v. Robinson, 735 P.2d 801 (Ariz. 1987); State v. J.C.E., 767 P.2d 309 (Mont. 1988); State v. Plant, 461 N.W.2d 253, 264 (Neb. 1990) (testifying wouls cause “extreme withdrawal and regression”).{/footnote} One court has enumerated the following factors to be considered under this exception: "the spontaneity of the child’s statement, the consistent repetition of the child’s allegation, the mental state of the child, the use of terminology unexpected of a child of similar age, and the lack of a motive to fabricate."{footnote}United States v. Tome, 61 F.3d 1446, 1452-53 (10th Cir. 1995) (excluding statements).{/footnote}
Under the Confrontation Clause, because the residual exception is not “firmly rooted,” a child’s out-of-court statements admitted in a child sexual abuse case under that exception must have special guarantees of reliability. See CONFRONTATION; RESIDUAL EXCEPTION.
2(g). Tender Years Statutes
In addition, a number of states have enacted special statutes to allow unsworn hearsay statements of a child relating to sexual abuse into evidence.{footnote}Ala. Code §§ 15-25-31 to 15-25-37 (1993); Alaska Stat. § 12.40.110 (1992) (grand jury proceedings only); Ariz. Rev. Stat. Ann. § 13-1416 (1993); Ark. Code. Ann. § 16-41-101, Ark. R. Evid. 803(25) (Michie 1992); Cal. Evid. Code § 1228 (West 1993); Colo. Rev. Stat. §§ 13-25-129, 18-3-411(3) (1993); Del. Code Ann. tit. 11, § 3513 (1992); Fla. Stat. Ann. § 90.803(23) (1992); Ga. Code Ann. § 24-3-16 (1993); Haw. Rev. Stat. 804(B)(6) (1993); Idaho Code §§ 19-809a, 19-3024 (1994); Ill. Comp. Stat. 5/8-2601 (1995) (civil cases); Ill. Ann. Stat. Ch. 725, § 5/115-10 (West 1993) (criminal cases); Ind. Code Ann. § 35-37-4-6 (1992); Kan. Stat. Ann. § 60-460(Dd) (1992); Ky. Rev. Stat. Ann. § 421.355 (Baldwin 1993) (repealed); Me. Rev. Stat. Ann. tit. 15, § 1205 (West 1992); Md. Code Ann. Cts. & Jud. Proc. § 9-103.1 (1993); Mass. Ann. Laws, Ch. 233, § 81 (1993); Mich. R. Evid. 803a (1993); Minn. Stat. Ann. § 595.02 (West 1993); Miss. Code Ann. § 13-1-403 (1993); Mo. Rev. Stat. § 491.075 (1993); Mo. Rev. Stat. § 492.304 (videotaped interview admissible if child available to testify at trial); Nev. Rev. Stat. Ann. § 51.385 (Michie 1991); Nev. Rev. Stat. 174.229 (videotape of child’s preliminary examination testimony concerning sexual assault admissible); N.J. R. Evid. 803(C)(27) (superseding N.J. Stat. Ann. § 2a:84a, N.J.R. Evid. 63(33) (West 1993) (Effective July 1, 1993)); Ohio R. Evid. 807 (Banks-Baldwin 1993); Okla. Stat. Ann. tit. 12, § 2803.1 (West 1993); OR. REV. STAT. § 40.460 (1991), OR. R. EVID. 803(18a); PA. STAT. ANN. § 5985.1 (1993); R.I. GEN. LAWS § 11-37-13.1 (1993) (grand jury proceedings only); S.D. Codified Laws Ann. § 19-16-38 (1993); Tex. Crim. Proc. Code Ann. & 38.072 (West 1993); Utah Code Ann. § 76-5-411 (1993); Vt. R. Evid. 804a; Wash. Rev. Code Ann. § 9A.44.120 (West 1991).
See also People v. Bowers, 801 P.2d 511 (Colo. 1990) (applying statute); State v. Jones, No. 80,069, 1993 Fla. LEXIS 1344 (Fla. Aug. 26, 1993) (applying statute); People v. Branch, 158 Ill. App. 3d 338, 511 N.E.2d 872 (5th Dist. 1987) (applying statute).{/footnote}
Typically, these statutes create an exception to the hearsay rule for out-of court statements by a child under ten relating to an incident of sexual abuse, but only where after a hearing outside the jury’s presence the statement is found to be reliable in light of the time, content, and circumstances of the statement, and the child-witness is available to testify. If the child is unavailable, the statement may be admitted only if the charges are corroborated by other evidence.{footnote}See, e.g., Colo. Rev. Stat. 13-25-129(1) (1987); Wash. Rev. Code § 9A.44.120. (1994).{/footnote} Several of these statutes have been invalidated on the basis that only the judiciary may create evidentiary rules.{footnote}State v. Robinson, 735 P.2d 801, 808 (Ariz. 1987) (invalidating Ariz. Rev. Stat. Ann. § 13-1416 (1994)); State v. Zimmerman, 829 P.2d 861 (Idaho 1992) (invalidating Idaho Code § 19-3924 (1994)); Drumm v. State, 783 S.W.2d 380, 382 (Ky. 1990) (invalidating Ky. Rev. Stat. Ann. § 421.355)); Hall v. State, 539 So.2d 1338, 1339 (Miss. 1989) (invalidating Miss. Code Ann. § 13-1-403)).
Contra St. Clair v. State, 783 S.W.2d 835 (Ark. 1990) (no violation of separation of powers).{/footnote}
Under the Confrontation Clause, because the “tender years” statutes are not “firmly rooted” hearsay exceptions, a child’s out-of-court statements admitted in a child sexual abuse case under these statutes must have particularized guarantees of trustworthiness.{footnote}Swan v. Peterson, 6 F.3d 1373, 1379 (9th Cir. 1993).
People v. Diefenderfer, 784 P.2d 741 (Colo. 1989); State v. Schaal, 806 S.W.2d 659 (Mo. 1991), cert. denied, 112 S.Ct. 976 (1992); State v. Buller, 484 N.W.2d 883 (S.D. 1992).
Compare Vann v. State, 831 S.W.2d 126, 128 (Ark. 1992) (invalidating Ark. R. Evid. 803(25) based on Confrontation Clause) with State v. Swan, 790 P.2d 610 (Wash. 1990) (defendant’s right to confrontation of witness not violated by child hearsay statute).{/footnote} See CONFRONTATION; RESIDUAL EXCEPTION.
3. Expert Opinion Testimony
3(a). Generally
3(a). Child Sexual Abuse Accommodation Syndrome
A number of psychologists have described a "child sexual abuse accommodation syndrome" (CSAAS) which attempts to explain certain behaviors and feelings commonly exhibited by children who have been sexually abused. The syndrome was originally described by Doctor Roland Summit in 1983, as consisting of five behavior patterns: secrecy, helplessness, entrapment and accommodation, delayed disclosure, and retraction.{footnote}Summit, The Child Sexual Abuse Accommodation Syndrome, 7 Child Abuse & Neglect 177 (1983).{/footnote} Summit explained that children are unlikely to resist the abuser or report the abuse to others because they view the abuser as an authority figure. They also fear that they will be punished by the abuser for reporting the abuse and possibly blamed by others for the incident itself. Even when children do report the abuse, they may retract their claims due to pressure from the abuser or the family.{footnote}Id.{/footnote}
Courts have generally permitted expert testimony about various mental and psychological symptoms of sexually abused children in order to show that the child’s conduct is consistent with that of an abused child.{footnote}State v. Myers, 382 N.W.2d 91, 97 (Iowa 1986) ("[I]t seems that experts will be allowed to express opinions on matters that explain relevant mental and psychological symptoms present in sexually abused children."); State v. Middleton, 657 P.2d 1215, 1219-20 (Ore. 1983) (juvenile counselor/social worker properly permitted to testify that fourteen-year-old’s behavior was characteristic of sexual abuse victims); State v. Petrich, 683 P.2d 173, 180 (Wash. 1984) (allowing testimony on the frequency of delays in reporting incidents of child sexual abuse).
But see Note, The Unreliability of Expert Testimony on the Typical Characteristics of Sexual Abuse Victims, 74 Geo. L.J. 429 (1985).{/footnote} Some courts have allowed expert testimony as to CSAAS in order to explain the conduct of victims in criminal prosecutions.{footnote}E.g., State v. J.Q., 599 A.2d 172 (N.J. Super. App. Div. 1991).
CHECK 690 So.2d 573 (Fla. 1997); Kruse v. State, 483 So. 2d 1383, 1386 (Fla. Dist. Ct. App. 1986) (permitting expert testimony on behavior patterns of child assault victims).{/footnote} Others have admitted the testimony in order to show that abuse in fact occurred.{footnote}Glendening v. State, 536 So. 2d 212, 220 (Fla. 1988); State v. Myers, 359 N.W.2d 604, 611-12 (Minn. 1984); Townsend v. State, 734 P.2d 705, 708 (Nev. 1987); State v. Timperio, 528 N.E.2d 594, 597 (Ohio Ct. App. 1987).
Contra Hellstrom v. Commonwealth, 825 S.W.2d 612, 613 (Ky. 1992) State v. Miller, 377 N.W.2d 506, 508 (Minn. Ct. App. 1985); People v. Knupp, 579 N.Y.S.2d 801, 802 (N.Y. App. Div. 1982); Black v. State, 634 S.W.2d 356, 357 (Tex. Ct. App. 1982); State v. Michaels, 625 A.2d 489, 499 (N.J. Super. Ct. App. Div. 1993); State v. Batangan, 799 P.2d 48, 54 (Haw. 1990).
{/footnote}
Some courts have excluded such testimony because CSAAS was not shown to be a "generally accepted” medical concept,{footnote}Brown v. Commonwealth, 812 S.W.2d 502, 504 (Ky. 1991); Commonwealth v. Dunkle, 602 A.2d 830, 837 (Pa. 1992){/footnote} while others have held this Frye standard inapplicable.{footnote}United States v. Downing, 753 F.2d 1224, 1237.
People v. Payan, 220 Cal. Rptr. 126, 133 (Cal. Ct. App. 1985); People v. Beckley, 456 N.W.2d 391 (Mich. 1990).{/footnote} Others have excluded CSAAS testimony because it was held unnecessary or unhelpful,{footnote}Commonwealth v. Dunkle, 602 A.2d 830, 837 (Pa. 1992) ("there no need for testimony about the reasons children may not come forward”); State v. Schimpf, 782 S.W.2d 186, 194 (Tenn. Crim. App. 1993).
See also State v. Davis, 581 N.E.2d 604, 611 (Ohio Ct. App. 1989) (testimony inadmissible where child knowledgeable and competent to testify).{/footnote} or an improper attempt to bolster the credibility of the child.{footnote}New Jersey v. W.L., 650 A.2d 1035, 1038 (N.J. 1995); State v. Davis, 581 N.E.2d 604, 612 (Ohio Ct. App. 1989); Commonwealth v. Dunkle, 602 A.2d 830, 837 (Pa. 1992) (CSAAS testimony improperly usurped the jury’s function of assessing credibility); Commonwealth v. Garcia, 588 A.2d 951, 956 (Pa. Super. Ct. 1991); State v. Fitzgerald, 694 P.2d 1117, 1121 (Wash. Ct. App. 1985); People v. Roscoe, 215 Cal. Rptr. 45, 50 (Cal. Ct. App. 1984).
CHECK Yount v. State, 872 S.W.2d 706 (Tex.Cr.App. 1993) (prosecution may notelicit expert testimony that a particular child is telling the truth, or that child complainants as a class are worthy of belief).{/footnote} At least one court rejected the probative value of such testimony on the grounds that children who have not been abused would exhibit many or all of the same behaviors described by CSAAS.{footnote}Lantrip v. Commonwealth, 713 S.W.2d 816, 817 (Ky. 1986) (holding that if other children who had not been abused also develop the same symptoms or traits, the development of symptoms would not suffice per se to prove the fact of sexual abuse){/footnote} Others have rejected CSAAS testimony as more prejudicial than probative.{footnote}Dunnington v. State, 740 S.W.2d 896, 898-99 (Tex. Ct. App. 1987).{/footnote}
3(b). Expert Testimony as to Credibility
Expert testimony is generally not allowed on the issue of whether a witness’ testimony is credible. See CREDIBILITY § 2. Expert Opinion. This rule has been applied to child witnesses, barring psychiatrists and psychologists from testifying that a child’s testimony is worthy of belief,{footnote}United States v. Binder, 769 F.2d 595, 602 (9th Cir. 1985) (expert testimony on the believability of children in a sexual child molestation case is an attempt to "improperly buttress" the credibility of the complaining witness).
State v. Myers, 382 N.W.2d 91, 97 (Iowa 1986) (trial court erroneously permitted expert to testify generally about the veracity of children who allege sexual abuse; reversing conviction).{/footnote} because the trier of fact is capable of judging credibility without expert assistance,{footnote}United States v. Azure, 801 F.2d 336 (8th Cir. 1986) (pediatrician and expert on child abuse erroneously allowed to testify that child was believable and that he could "see no reason why she would not be telling the truth in this matter. . . ."; testimony that addressed more than victim’s character for truthfulness should have been excluded).
See also Daniel Goleman, Studies Reveal Suggestibility of Very Young as Witnesses, N.Y. Times, June 11, 1993, at A1, A9 (1000 professional specialists in child abuse, after viewing videotapes of children relating both genuine and fabricated memories, were correct in judging the truth roughly one third of the time).{/footnote} and allowing such testimony may lead the jury to rely on expert witnesses rather than their own common sense.{footnote}United States v. Azure, 801 F.2d 336 (8th Cir. 1986).{/footnote} A number of courts, however, have relaxed this rule with respect to children testifying in child abuse cases.{footnote}State v. Kim, 645 P.2d 1330 (Haw. 1982) (psychiatrist properly allowed to testify that he found the child witness’ account of the rape "believable."; construing Haw. R. Evid. 702).
CHECK Colgan v. State, 711 P.2d 533 (Alaska Ct. App. 1985); State v. Moran, 151 Ariz. 378, 728 P.2d 248 (1986); People v. Gray, 187 Cal. App. 3d 213, 231 Cal. Rptr. 658 (1986); Wheat v. State, 527 A.2d 269 (Del. 1987); Allison v. State, 179 Ga. App. 303, 346 S.E.2d 380 (1986), rev’d on other grounds, 256 Ga. 851, 353 S.E.2d 805 (1987); State v. Snapp, 110 Idaho 269, 715 P.2d 939 (1986); State v. Lawrence, 112 Idaho 149, 730 P.2d 1069 (Idaho Ct. App. 1986); People v. Server, 148 Ill. App. 3d 888, 499 N.E.2d 1019 (1986); State v. Myers, 382 N.W.2d 91 (Iowa 1986); Commonwealth v. Ianello, 401 Mass. 197, 515 N.E.2d 1181 (1987); State v. Myers, 359 N.W.2d 604 (Minn. 1984); State v. Garden, 404 N.W.2d 912 (Minn. Ct. App. 1987); State v. Geyman, Mont. , 729 P.2d 475 (1986); In re Linda K., 132 A.D.2d 149, 521 N.Y.S.2d 705 (1987); People v. Grady, 133 Misc. 2d 211, 506 N.Y.S.2d 922 (1986); People v. Reid, 123 Misc. 2d 1084, 475 N.Y.S.2d 741 (1984); Dutchess County Dep’t of Social Serv. ex rel. Janet C. v. Bertha C., 130 Misc. 2d 1043, 498 N.Y.S.2d 960 (1986); In re Michael G., 129 Misc. 2d 186, 492 N.Y.S.2d 993 (1985); State v. Kennedy, 320 N.C. 20, 357 S.E.2d 359 (1987); State v. Middleton, 294 Or. 427, 657 P.2d 1215 (1983); Commonwealth v. Baldwin, 348 Pa. Super. 368, 502 A.2d 253 (1985); State v. Logue, 372 N.W.2d 151 (S.D. 1985) (dissent); State v. Petrich, 101 Wash. 2d 566, 683 P.2d 173 (1984); People v. Russel, 69 Cal. 2d 187, 443 P.2d 794, 70 Cal. Rptr. 210, cert. denied, 393 U.S. 864 (1968) (discussing use of psychiatric testimony where a child’s sex offense claims were substantially uncorroborated); People v. Parks, 41 N.Y.2d 36, 359 N.E.2d 358, 390 N.Y.S.2d 848 (1976) (concerning expert testimony in the form of a psychiatric exam for child witnesses).
CHECK United States v. St. Pierre, 812 F.2d 417, 420 (8th Cir. 1987); State v. Linsey, 149 Ariz. 472, 475, 720 P.2d 73, 76 (1986); State v. Myers, 359 N.W.2d 604, 610 (Minn. 1984); State v. Middleton, 294 Or. 427, 436, 657 P.2d 1215, 1219-20 (1983).
CHECK Commonwealth v. Dunkle, 1992 WL 8993 (Pa. 1992) (testimony offered to bolster credibility of alleged victim of child sexual abuse).
See also McCord, Expert Psychological Testimony About Child Complainants in Sexual Abuse Prosecutions, 77 J. Crim. L. & Criminology 1, 44-45 (1986) ("[C]hild sexual abuse is a particularly mysterious phenomenon, often involving an unusual cast of characters who are involved in relationships that are seemingly inexplicable to most people.")
{/footnote} Witness have also been allowed to testify as to whether a particular child is able to distinguish between truth and falsehood.{footnote}United States v. Azure, 801 F.2d 336 (8th Cir. 1986).
Contra United States v. Binder, 769 F.2d 595 (9th Cir. 1985) (reversing convictions for child sexual abuse where government expert testified as to the victims’ ability to distinguish truth from falsehood because such testimony was an improper comment on whether the testimony of the children should be believed).{/footnote}
4. Defendant’s Prior Acts of Child Abuse
4(a). Generally
Courts have admitted evidence of prior sex crimes against children to show a disposition to commit such crimes.{footnote}State v. MacFarlin, 517 P.2d 87 (Ariz. 1973) (other acts must be similar and near in time to acts charged); State v. Cousin, 664 P.2d 233, 235 (Ariz. Ct. App. 1983); ___ 910 S.W.2d 694 (Ark. 1995); Davis v. State, 598 N.E.2d 1041, 1049 (Ind. 1992); State v. Moore, 7488 P.2d 833, 838 (Kan. 1988).
See also Mo. Rev. Stat. § 566.025 (1994) (creating exception to general rule excluding other crimes offered to show propensity; applies to sex crimes involving children under fourteen).
CHECK But see State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981) (inadmissible character evidence).{/footnote} This is variously referred to as the "lustful disposition", "depraved sexual instinct" or "lewd disposition" exception to the general rule excluding evidence of other bad acts. See OTHER ACTS AND OCCURENCES; SEXUAL ASSUALT–Defendant’s Prior Sexual Assaults. A defendant’s prior acts of sexual abuse of children have also been held admissible to establish specific intent,{footnote}United States v. Hadley, 918 F.2d 848 (9th Cir. 1990); cert. dismissed, 506 U.S. 19 (1992).
Summit v. State, 285 So. 2d 670 (Fla. Ct. App. 1973).{/footnote} pattern,{footnote}Soper v. State, 664 P.2d 233 (Ariz. Ct. App. 1983); State v. Pignolet, 465 A.2d 176 (R.I. 1983).{/footnote} common plan or scheme,{footnote}Espey v. State, 407 So. 2d 300, 301 (Fla. Ct. App. 1981); State v. Means, 363 N.W.2d 565 (S.D. 1985).
See also State v. Sills, 317 S.E.2d 379, 384 (N.C. 1984).{/footnote} or to corroborate the testimony of the alleged victim.{footnote}But see People v. Thomas, 573 P.2d 433 (Cal. 1978) (error to admit instances of sexual molestation of another victim as corroboration without showing that other instances were similar in nature and not too remote in time).{/footnote} In a murder prosecution, evidence of other acts of child abuse against other victims has been held admissible to establish the corpus delicti.
Recently-enacted FRE 414 provides that evidence of a "defendant’s commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant" in a criminal prosecution for alleged child molestation. Similarly, FRE 415 provides for the admission of this type of evidence in civil cases that include issues of sexual assault or child molestation.{footnote}FRE 414, 415 (enacted by Congress as part of the Violent Crime Control & Law Enforcement Act of 1994, 42 U.S.C. 13701-14223; effective July, 1995).{/footnote}
4(b). Against the Same Victim
Prior acts of sexual abuse of the same child have been held admissible to prove a defendant’s “lewd disposition”, {footnote}State v. Garner, 569 P.2d 1341 (Ariz. 1977); Gibbs v. State, 394 So. 2d 231, 232 (Fla. Ct. App.), aff’d, 406 So. 2d 1113 (1981).{/footnote} as well as intent{footnote}Summit v. State, 285 So. 2d 670 (Fla. Ct. App. 1973).{/footnote} and pattern.{footnote}Gossett v. State, 191 So. 2d 281, 283 (Fla. Ct. App. 1966).{/footnote} In a prosecution for murdering a child, the defendant’s prior acts of physical abuse against the same child have been held admissible to prove intent where intent is disputed.{footnote}United States v. Lewis, 837 F.2d 415 (9th Cir. 1988).{/footnote}
5. Relevance of Witness Having Children
Parties are often allowed to bring out on direct examination that they have children, where that fact has no relevance to the matters in dispute. Sometimes the purpose of these questions is disingenuously explained to be “background” or “identification.”{footnote}Auto-Owners Ins. Co. v. Jensen, 667 F.2d 714, 722 (8th Cir. 1981) (no error where fact not emphasized to jury).{/footnote} Such questions have in some cases been pointed out to be a thinly disguised attempt to bolster the party’s credibility in the eyes of the jury or win the jurors’ sympathy and held improper.{footnote} U.S. v. Solomon, 686 F.2d 863, 873-74 (5th Cir. 1982) (no abuse of discretion where court precluded criminal defendant’s attorney from asking him about his family on direct; held improper character evidence).{/footnote}
Bibliography
1. Children As Witnesses
Melton, Children’s Competency to Testify, 5 Law & Hum. Behav. 73 (1981).
Myers, The Child Witness: Techniques for Direct Examination, Cross-examination, and Impeachment, 18 Pac. L.J. 801 (1987).
Comment, Sex Abuse, Accusations Of Lies, And Videotaped Testimony: A Proposal For A Federal Hearsay Exception In Child Sexual Abuse Cases, 68 U. Colo. L. Rev. 507 (1997).
Case Comment, Maryland v. Craig: The Constitutionality of Closed Circuit Testimony in Child Sexual Abuse Cases, 25 Ga. L. Rev. 167 (1990).
Comment, The Competency Requirement for the Child Victim of Sexual Abuse: Must We Abandon It?, 40 U. Miami L. Rev. 245 (1985)).
Note, The Constitutionality Of The Use Of Two-way Closed Circuit Television To Take Testimony Of Child Victims Of Sex Crimes, 53 Fordham L. Rev. 995 (1985).
Annotation, Witnesses: Child Competency Statutes, 60 A.L.R.4th 369 (19__).
2. Hearsay Statements Regarding Sexual Abuse
Marks, Should We Believe the People Who Believe the Children?: The Need for a New Sexual Abuse Tender Years Hearsay Exception Statute, 32 Harv. J. on Legis. 207 (1995).
Ramella, Casenote, The Confrontation Clause and Hearsay in Child Abuse Cases, 25 Creighton L. Rev. 1043 (1992).
Yun, Note, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, 83 Colum. L. Rev. 1745 (1983).
3. Expert Opinion Testimony
Askowitz & Graham, The Reliability of Expert Psychological Testimony in Child Sexual Abuse Prosecutions, 15 Cardozo L. Rev. 2027 (1994).
Steven I. Friedland, On Common Sense And The Evaluation Of Witness Credibility, 40 Case W. Res. 165 (1990).
Larson, The Admissibility of Expert Testimony on Child Sexual Abuse Accommodation Syndrome as Indicia of Abuse: Aiding the Prosecution in Meeting Its Burden of Proof, 16 Ohio N.U. L. Rev. 81 (1989).
Note, Child Sexual Abuse Accommodation Syndrome: Admissibility Requirements, 23 Am. J. Crim. L. 171 (1995).
Note, The Unreliability of Expert Testimony on the Typical Characteristics of Sexual Abuse Victims, 74 Geo. L.J. 429 (1985).
Note, Expert Testimony in Child Sexual Abuse Prosecutions: A Spectrum of Uses, 68 B.U.L. Rev 155 (1988)
4. Defendant’s Prior Acts of Child Abuse
Donner-Froelich, Symposium On Child Sexual Abuse Prosecutions: The Current State Of The Art: Comment: Other Crimes Evidence to Prove the Corpus Delicti of a Child Sexual Offense, 40 U. Miami L. Rev. 217 (1985).