ABUSERS OF CHILD HEARSAY RECEIVE SPANKING

by Monte Hester; Oct 1997

     Since its inception the child hearsay statute, RCW 9A.44.120, has been regarded by criminal defense lawyers as legislation that for the most part took away the concept of a fair trial as it relates to allegations of sexual misconduct towards children ten years and younger.  Prosecutors, with the support of the courts, for the most part have had an easy time with sex cases that relate to children by putting on testimony from witnesses with whom the child has had contact and who claim to have heard statements from the child describing sexual contact with a defendant.  This situation has been prevalent both with the "unavailable" witness, that is, someone whom the court has found at a child hearsay hearing to be not capable of giving testimony, and with the "available" witness, a child whom the court has found capable of being a witness. 

     State v. Rohrich, __ Wn.2d __, 939 P.2d 697 (1997), deals with a prosecutor who called a child witness and limited his direct to innocuous inquiries such as name and age without asking any questions relating to sexual contact.  The witness was excused and subsequent witnesses were called who purported to have heard the child describing sexual contact between the child and the defendant.  The Supreme Court held that the child did not "testify" for purposes of the child hearsay statute when she was called to the stand and did not give testimony describing acts of sexual contact, and that because the child did not testify as required, yet was available to do so, hearsay describing assertions of sexual contact was inadmissible under the statute. 

     This analysis is very important to the practitioner and centers upon an analysis of the child hearsay statute which says that child hearsay testimony is admissible if the child is available and testifies at the proceedings.  The court analyzes the word "testifies" because the statute does not define the word, and indicates its disagreement with the state's position that "testifies" merely means the child is available to testify regardless of whether the child ever takes the stand.

     The court indicated it would interpret and apply the child "testifies" requirement in light of the requirements of the confrontational clause.  The court recognized that an indispensable component of the confrontational clause is preference for live testimony which is subject to cross-examination because of its central role in ascertaining the truth.  The court further indicated the opportunity to cross-examine means more than affording the defendant the opportunity to hale the witness to court for examination.  It requires the state to elicit the damaging testimony from the witness so the defendant may cross-exam if he so chooses.  This means that the declarant must be subject to cross-examinations concerning the out-of-court declaration.  The temptation is to stop reading this case at this point and to conclude that it simply stands for the proposition that a child witness if available must describe some sexual contact or conduct that is criminal and that if that occurs then hearsay witnesses may be called to describe whatever they claim they heard from the child victim regarding sexual contact.  If one is careful in the reading of this case, I would urge that its holding is that a hearsay witness cannot give testimony describing claimed sexual conduct that goes beyond that described by the testifying child witness.  For example, if the child witness "testifies" that I was touched in a particular way on one occasion and that is the only time I had sexual contact with the defendant, then witnesses would be prohibited from getting on the witness stand and providing hearsay statements testimony that related to other touching or touching at other times and in a different way.

     The court, in the Rohrich case, stated:

          Here, the child was available and thus the Confrontation Clause's preference for live testimony requires that she herself testify as to the acts of sexual contact alleged in the hearsay as a condition to its admission under RCW 9A.44.120.

The court goes on to say:

          We conclude 'testifies' as used in RCW 9A.44.120(2)(a), means the child takes the stand and describes the acts of sexual contact alleged in the hearsay.

     This is indeed a case that offers a very clear analysis of the application of the child hearsay statute under circumstances where the witness is available.  My expectation is that, because of past practices, it is going to be hard to get trial courts to understand and believe in the limitations that are clearly stated within this case.  However, the conclusions as stated are inescapable and therefore, the defense lawyer must be persistent in arguing the holdings of this case.  This holding also should alert the defense lawyer to, in most cases, make a very serious effort of having a child witness be found to be competent and therefore available if the circumstances are such that the available witness would give minimal testimony or no testimony as to sexual contact. 

     Hopefully, this will be of assistance in protecting your innocent clients from false accusations.

     Also, don't forget to consider the advantages of Evidence Rule 806 for purposes of cross-examining an available or unavailable hearsay declarant through the hearsay witness.