Child Hearsay Vs The Confrontation Clause: Can The Sixth Amendment Survive?

Paul F. Herzog*

"In all criminal prosecutions the accused shall enjoy the right ... to be confronted with the witnesses against him ..."

Sixth Amendment to the U.S. Constitution

"Anyone who hurts a kid should be shot in the head and left to rot in the gutter."

Tom Clancy, author of The Hunt for Red October
and Red Storm Rising, Newsweek, 8/8/88, p. 61

"Child abuse is one of those issues politicians love because it's so utterly uncontroversial.  No one's for it.  So Congress and the President have been having a high old time the past couple of years passing laws against it. ..."

Michael Kinsley, Civic Virtuosity and Child Abuse Chic,
10 The Champion 7 (Jan/Feb 1986)

I. Introduction

Kinsley is right.  No rational person can be in favor of child abuse in any form.

When I was first licensed to practice law in 1978, the public heard little about child abuse.  Child abuse cases were generally dealt with by departments of social services or within the closed confines of juvenile and domestic courts.

Today the pendulum has swung, with a vengeance, in the other direction.  During the past several years certain "civic crusaders" and self-appointed "child advocates," with the .assistance of the news media, have created in the minds of the public a perception that child molesters are lurking behind every rock and tree ready to snatch children off the street and into oblivion.  The level of public breast beating has created a climate of near hysteria on the subject.  One cannot watch the evening news, read the newspaper, or purchase a carton of milk without seeing pictures or stories about missing children.  Tom Clancy's views appear to mirror those of the general public. The present political climate is such that jurors are just waiting to do their part in "fighting" child abuse by convicting accused abusers as quickly as possible.

The interesting thing about the child abuse phenomenon is that it appeared so suddenly.  It's almost as if the problem of child abuse was suddenly transported to earth by some alien culture.  We all know this isn't true.  Child abuse has been with us throughout the ages, consigned to society's darkest and dirtiest comer.  Only recently has anyone bothered to shine a spotlight into that comer.

Since the subject of child abuse has come out into the light of day, many people and institutions have tried to "do something" about it.  Kinsley identifies the President and Congress as "passing laws against it."  But the real changes in child abuse law have not come from either the executive or legislative branches of government.  The real changes in child abuse law have been brought about by the judiciary, both federal and state.  The arena for this change has been the criminal justice system.

The most dramatic developments wrought by the courts have occurred in the relationship and interplay between the accused's right to confront his accusers and prosecutors' attempts to use hearsay(1) testimony in lieu of live witnesses.  During the last five to six years, prosecutors have attempted to substitute adult witnesses for children in abuse cases, especially sex abuse cases.  Prosecutors have called doctors, nurses, social workers, and parents to testify to what a child told them had occurred between that child and the defendant in abuse cases.  Prosecutors have sought to circumvent the unreliability, short memories, and suggestibility of small children by making an end run around these problems by the use of adult proxies.  The use of these proxies raise interesting confrontation and hearsay questions.

Courts around the country have been jumping at their chances to "do something" about child abuse by making it easier and easier for prosecutors not to call alleged child victims to the stand.  There has been a steady erosion of the accused's right to be confronted with the witnesses against him and a corresponding rise in the use of hearsay.  The erosion of the accused's confrontation rights is an ongoing process.  Each week brings a new appellate decision expanding the use of hearsay testimony and denigrating the right of confrontation.  This trend, generated by a desire to protect children and "do something" about child abuse, threatens to spread beyond the area of child abuse prosecutions and to do irreparable harm to the jurisprudence of this country.  The trend is part of a hidden, unspoken agenda on the part of the judiciary in this country, which can only be discerned by a careful scrutiny of appellate court opinions.

At the beginning of this decade most criminal lawyers thought they knew what the Confrontation Clause of the Federal Constitution meant.  As the decade draws to a close, we're not so sure.

This article will explain and explore the relationship of the Confrontation Clause and the law of hearsay, where it's been and where it's going.  While the references are, for the most part, to Federal and North Carolina state law (especially the rules of evidence), the issues discussed herein are likely to arise in any criminal court hearing this kind of case.  An appendix of the North Carolina rules on hearsay is included.  The North Carolina rules are very similar to the Federal rules.  Substantially similar hearsay rules exist in every state.

(Editor's note: Because of space considerations, we are not including the appendix with this article.  However, the appendix is available and will be sent by us upon request.)

II. Confrontation Issues

The Sixth Amendment to the Federal Constitution seems to require a face-to-face confrontation between prosecution witnesses and the defendant in unambiguous language.  However unambiguous the language of the Sixth Amendment, the United States Supreme Court has held that the Confrontation Clause merely "reflects a preference for face-to-face confrontation at trial."  Ohio v. Roberts, 65 LEd 2d 597, 606 (1980).  This "preference may be overcome in a particular case if close examination of 'competing interests' so warrants."  Coy v. Iowa, 101 LEd 2d 857 (1988), 869 (Justice O'Connor concurring).

By including the Confrontation Clause in the Bill of Rights, the Framers of the Constitution sought to guard against a particular evil.

The primary object of the [Confrontation Clause] was to prevent depositions or ex parte affidavits ... being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.  Kentucky v. Stincer, 96 LEd 2d 631,641-642 (1987), quoting Mattox V. U.S., 39 LEd 409 (1895).

Justice Scalia, in a recent opinion dealing with child sexual abuse, explained that the Confrontation Clause aids the truth finding function of a criminal trial:

It is always more difficult to tell a lie about a person "to his face" than "behind his back." . . . the right to face-to-face confrontation serves much the same purpose as a less explicit component of the Confrontation Clause that we have had more frequent occasion to discuss the right to cross-examine the accuser; both "ensur[e] the integrity of the fact-finding process." [citations omitted].  The State can hardly gainsay the profound effect upon a witness of standing in the presence of the person the witness accuses. ... That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult. It is a truism that constitutional protections have costs.  Coy v. Iowa, supra, 866.

As stated by Justice Scalia, the Confrontation Clause aids in the truth-finding process and protects the right to cross-examine one's accusers.  Furthermore, the defendant has the right not only to cross-examination via the Confrontation Clause, but also to effective cross-examination.  Pointer v. Texas, 13 LE 2d 1923 (1965).  Denial of the right to effective cross-examination is a "constitutional error of the first magnitude and no showing of want of prejudice would cure it."  State v. Durham, 74 N.C. App. 159, 327 SE 2d 920 (1985), citing Davis v. Alaska, 39 LE 2d 347 (1974); Smith V. Illinois, 19 LE 2d 956 (1968); and Brookhart v. Janis, 16 LE 2d 3141 (1966).

In Durham, an indecent liberties case, a unanimous panel of the North Carolina Court of Appeals addressed the problems of an adult substituting for a child witness:

Where the witness is the principal accuser, and the only person except for the defendant who has firsthand knowledge of the crime and related events, the appointment of an alternate might deprive the jury of crucial facts which only the witness himself knows and might reveal on cross-examination.  State v. Durham, supra, 74 N.C. App. at 164-165, 327 SE 2d at 924.

The Court went on to say:

Our Constitution requires that a person who has been accused by another has a right to confront his accuser in the flesh, and not through an alternate or substitute.  State v. Durham, supra, at 165, at 924.

Despite the foregoing, it is absolutely clear that some hearsay testimony is constitutionally permissible.  "The rights conferred by the Confrontation Clause are not absolute, and may give way to other important interests."  Coy v. Iowa, supra, 866.  It is, likewise, vital to note that the hearsay rule and its exceptions are not necessarily coextensive.  California v. Green, 26 LEd 485 (1970).  An out-of-court statement may be admissible pursuant to an exception to the rule against hearsay but inadmissible because it violates the Confrontation Clause.  The question then becomes, "Under what circumstances may a statement be admissible under both the hearsay rule and Confrontation Clause?"

The United States Supreme Court answered this question in Ohio  v. Roberts, supra.  In Roberts, the Supreme Court enunciated a two-part test for determining when the right to confrontation must yield to the admissibility of hearsay statements.  "The proponent (1) must show the necessity for using the hearsay declaration, i.e., the unavailability of the witness, and (2) must demonstrate the inherent trustworthiness of the declaration."  State v Deanes, 323 N.C. 508, 374_SE 2d 249, 323 N.C. 508, 516, 374 SE 2d 249, 260 (1988).  The two-prong Roberts test (unavailability and trustworthiness) is the starting point for all confrontation/hearsay analysis.  Each prong deserves closer examination.

A. Unavailability(2)

Unavailability occurs when the prosecution has made a "good faith effort" to obtain a witness's presence at trial but has failed.  Roberts, supra, 613.

North Carolina Rule of Evidence 804(a)(1-5) provides a number of examples of unavailability (assertion of a privilege-such as self-incrimination; refusal by the witness to testify; memory loss; the death of the witness; inability to procure the witness's attendance by reasonable means.)  This list is nonexclusive and contemplates other possibilities.  All of these examples probably comport with the Roberts definition of unavailability.

In the context of child abuse, several courts have held that a child declared incompetent to testify is unavailable within the meaning of RobertsState v. Deanes, supra; State v. Gregory, 78 N.C. App. 565, 338 SE 2d 110(1985), disc. rev. denied, 316 N.C. 382, 343 SE 2d 901; Haggins v. Fort Pillow State Farm, 715 F 2d 1050 (6th Cir. 1983), cert denied, 464 U.S. 1071 (1984).(3)  The relationship of incompetency of a child witness and unavailability raises an interesting question.  If a child is incompetent to testify (that is to say he lacks the prerequisites to be a witness), how can his hearsay statements be said to be trustworthy enough to satisfy the second prong of the Roberts test?  This issue will be discussed in detail later in this article.

Several courts have ruled that a child witness may be deemed to be unavailable because the ordeal of testifying may cause emotional trauma to the child.  State v. Chandler, 324 N.C. 173, 376 S.E. 2d 728 (1989), People v. Rojas, 15 Cal. 3d 540, 125 Cal. Rptr. 357 (1975), People v. Gomez, 26 Cal. App. 3d 225,103 Cal. Rptr. 80(1977); Warren v. United States, 436 A 2d 821 (D.C. Ct. App. 1981).  One commentator has severely criticized this practice, asking:

Is it constitutionally permissible to protect a child from face-to-face confrontation at trial because it is believed the experience would be traumatic? ... Society's belief that children should be spared from the traumas of trial no doubt is a sincerely held one.  But if confrontation is what causes trauma, then it is far from clear that society's interest is a legitimate one under the Sixth Amendment.  Confrontation is an ordeal that upsets witnesses of all ages and stripes; it is unlikely that the Framers intended a right of confrontation as long as it is easy for the witness.  Billionis, "Hearsay and the Right of Confrontation," N. C. Criminal Evidence Seminar, UNC-CH School of Law (1988), 22.

Indeed, Justice Scalia's foregoing comments from Coy V. Iowa, supra, call into question this practice.

B. Trustworthiness(4)

What makes a hearsay statement trustworthy?  Roberts held that hearsay falling within a "firmly rooted hearsay exception" is presumed to be reliable.  Some exceptions deemed to have been firmly rooted are: Co-conspirator Statements, Recorded Past Recollection, Dying Declarations, Prior Testimony With the Opportunity for Cross-Examination of the Witness, Excited Utterances, and Business and Public Records.  Billionis, supra, 19.  It seems likely that the Present Sense Impression (N.C.R.Evid. 803[1]) and Existing Emotional or Physical Condition (N.C.R.Evid. 803[3]) and Statements Made For The Purposes of Medical Diagnosis or Treatment (N.C.R.Evid. 803[4]) will be held "firmly rooted" within the meaning of Roberts.

A more interesting question arises in the context of hearsay not falling within the "firmly rooted" exceptions.  Hearsay not falling within a "firmly rooted" exception is presumed to be inadmissible absent "particularized guarantees of trustworthiness." Goldman, "Not So 'Firmly Rooted': Exceptions to the Confrontation Clause," 66 N.C.L. Rev. 1, 7-8 (1987).

In determining what is trustworthy hearsay where no "firmly rooted" exception is involved, the case of Ellison v. Sachs, 769 F. 2(1 955 (4th Cir. 1985) is instructive.  In Ellison, a five-year-old girl was declared incompetent by the state trial court.  The court allowed a police officer to testify that the child had told him that she had been sexually assaulted and that the defendant was the perpetrator.  The Maryland Appellate Courts upheld the trial court's action.  Defendant sought relief in the Federal Courts.

The Fourth Circuit ruled with the defendant, holding that it was constitutional error to admit the testimony of the officer concerning the child's statements.  The appellate court unanimously upheld the District Court's findings "that the victim's out-of-court identification and statements were not reliable and therefore held that the admission of hearsay violated Ellison's Sixth Amendment right to confront the witnesses against him," at 956.  The Court went on to say, "where her identification was the sole evidence of the perpetrator's identity, the victim's testimony contained no sufficient assurance of accuracy," at 957.  It appears likely that the Ellison Court was not willing to hold that the statements of the alleged victim were inherently trustworthy in the absence of some sort of corroboration.

The whole question of reliability and inherent trustworthiness of the hearsay statements of small children arises over and over throughout any Confrontation/Hearsay analysis.  Almost all the prosecutors and social workers this author has spoken with claim that statements by children about abuse carry some sort of inherent credibility.  Statistics compiled and released by the American Humane Association clearly refute such a conclusion:

More than sixty-five percent of all reports of suspected child maltreatment involving over 750,000 children per year turn out to be unfounded [as of 1978].  Of course, some degree of overreporting is to be expected, as the law requires the reporting of 'suspected' maltreatment.  However, the present level of overreporting is unreasonably high and is growing rapidly.  There has been a steady increase in the number and percentage of 'unfounded' reports since 1976, when approximately only thirty-five percent of reports were 'unfounded.' ...

Besharov, "'Doing Something' About Child Abuse: The Need to Narrow the Grounds For State Intervention," 8 Harvard Journal of Law and Public Policy. 539,556,557 (1985).(5)

Two very troubling questions arise out of any analysis of the trustworthiness of the hearsay statements of small children.  First, "How does a judicial finding of incompetency reflect on the child's hearsay statement?"  The second, and even more difficult question arises when the statements are a product of some pseudo-scientific procedure.  In particular, are assessments of child abuse based on a child's play with so-called "anatomically correct" dolls indubitably accurate and inherently trustworthy?  Both of these issues deserve closer scrutiny.

1. The Effect of Incompetency on the Reliability of Hearsay Statements.

Assume that a four-year-old child is called to the stand to testify in an abuse case.  After examination by the attorneys for both sides, the judge rules that the child lacks the ability to communicate effectively and does not understand the difference between the truth and falsehood.  The child, according to some authorities, is unavailable within the meaning of Roberts.  See Gregory and Haggins v. Fort Pillow State Farm, supra.  Assume further that the child related his story of abuse to a doctor or social worker six months prior to trial.  Is the statement by the child to the doctor or social worker so inherently trustworthy that it satisfies the dictates of the Confrontation Clause as set forth by the Roberts decision?  The answer ought to be no.  As Professor Louis Billionis of the UNC School of Law has commented:

Declaring a child "unavailable" immunizes the witness from cross-examination and opens the door to all kinds of untested hearsay accusations.  The sacrifice to confrontation values can be staggering.  Yet the label of "unavailability" hardly does away with the confrontation problem.  If the child's unavailability is based upon a classic showing of incompetence i.e., an inability to appreciate the truth it is hard to credit as trustworthy anything the child has said earlier, thus making Roberts' reliability requirement difficult to satisfy.  Billionis, supra, 23.

These remarks merit further examination and explanation.

The determination of competency to testify as a witness is within the sound discretion of the trial court; but, as the U.S. Supreme Court has said: "While no one would think of calling as a witness an infant only two or three years old, there is no precise age which determines the question of competency."  State v. Cook, 278 N.C. 288, at 290-291, 179 SE 2d 365,367, (1971); citing with approval, Wheeler v. U.S., 40 LEd 244 (1895).  N. C. Rule of Evid. 601 controls the competency determination.  (The federal and other state courts have comparable rules).  The rule reads in part:

1. General rule.  Every person is competent to be a witness except as otherwise provided in these rules.

2. Disqualification of witness in general.  A person is disqualified to testify as a witness when the court determines that he is: (a) incapable of expressing himself concerning the matter as to be understood, either directly or through interpretation by one who can understand him, or (b) incapable of understanding the duty of a witness to tell the truth.

Assume, as we did in the foregoing example, that the trial court declares a child to be incompetent because he or she lacks the mental and moral capacity under Rule 601.  How, then, can a hearsay statement be found to be trustworthy if the underlying declarant is not?  Can a statement made by an incompetent child witness suddenly become competent simply because an adult repeats it?  Professor Wigmore has addressed this issue:

The hearsay rule is merely an additional test or safeguard to be applied to testimonial evidence otherwise admissible.  The admission of hearsay statements by way of exception to the rule, therefore, presupposes that the assertor possessed the qualifications of a witness ... in regard to knowledge and the like. 5. J. Wigmore, Evidence, Sec. 1424,255 (1974).

This means that the "declarant's competency is a precondition to admission of his hearsay statements as are other testimonial qualifications."  State v. Ryan, 691 P. 2d 197, 203 (Wash. 1984).

This question was also addressed by the Seventh Circuit in Huff v. White Motor Corp., 609 F. 2d 1286, (7th Cir. 1979).  In this case, the Court decided that the admission of a declarant's hearsay statements pursuant to Federal Rules of Evidence 803(24) and 804(b)(5) are conditioned on the declarant's competence at the time he made the statement sought to be admitted pursuant to the "catchall" exceptions to the rule prohibiting hearsay.  The Court determined that competence at the time the statement was made is a prerequisite to trustworthiness and thus admissibility.  "If that mental capacity was lacking, so are the guarantees of trustworthiness."  Huff, supra, at 294.  The Court also held that guarantees of trustworthiness "to be considered in applying that exception [Rules 803(24) and 804(b)(5)] are those that existed when the statement was made and do not include those that may be added by using hindsight."  Huff, supra, at 292.

The Washington Supreme Court in Ryan has decided this very issue.  The defendant, Ryan, was prosecuted for indecent liberties with four- and five-year-old children.  Relatives of the children were permitted by the trial court to repeat hearsay statements made by the children to the effect that Ryan had sexually abused them.  (Washington has a specific hearsay exception allowing into evidence out-of-court statements made by children concerning abuse under certain specified conditions.  See RCW 9A.44.120.)

The Ryan Court required two factors as a prerequisite to the admission of the hearsay statements of the allegedly abused children pursuant to Washington's special hearsay exception: (1) that the child be competent to testify at the time he made the statement; and, (2) that the hearsay statements carry other adequate, independent indicia of reliability.  Ryan, 203-207.  It seems then that the key issue should be "the child's capacity to relate facts accurately at the time the statement was made."  Sendor, "Child Hearsay Under the North Carolina Code of Evidence," 100, UNC-CH, March 1986, 3.

In the foregoing example, the four-year-old child was declared incompetent because of his inability to appreciate the difference between truth and falsehood.  Logic and common sense would dictate that a child's ability. to distinguish what is true from what is false develops over time.  It seems highly likely that the child's abilities in this area were even less developed six months prior to trial when he made the hearsay statement noted in the example.  The child's out-of-court statement six months earlier ought not to be admitted into evidence because it is unreliable.

Assume, by way of a second example, that a four-year-old child is called to the stand to testify in an abuse case.  The presiding judge determines the child knows what the truth is, and he is declared competent to testify.  When the child gets to the crucial part of his testimony, he suddenly is unable to remember what happened or, as commonly happens, the child "freezes up" and is unable to continue.  Should the statement he made to the doctor or social worker six months prior to trial outside of court be admitted into evidence?  One factor to take into consideration would be the ability of the child to distinguish truth from falsehood at the time the statement was made.  At a hearing on this issue both the prosecution and defense could offer evidence from the child's counselors (parents, foster parents, etc.), teachers, developmental psychologists, and the persons to whom the hearsay statement was made (in this example the doctor or social worker) concerning the child's abilities to distinguish the truth at the time the child made his statement concerning the abuse (i.e., six months prior to trial).  The judge could then make his ruling concerning the competency of the child at the time the statement was made.(6)

2. Pseudo-Scientific Procedures The Case of the "Anatomically Correct Dolls"

Are hearsay statements generated by the use of pseudo-scientific procedures inherently reliable as required by Roberts?  In particular, are assessments of child abuse based on a child's play with so-called "anatomically correct" dolls(7) indubitably accurate and inherently trustworthy?

The assumption that a child's play with dolls clearly reflects things that have happened to that child is nowhere supported by any scientific studies or research.  The absence of research demonstrating the reliability and validity of anatomically correct dolls, or which even attempts to address these issues, clearly suggests that procedures conducted with anatomically correct dolls do not meet basic requirements established for such procedures by experts in psychology or psychiatry.  Neither reliability nor validity can be assumed.  While these procedures appear to measure what they say they do (i.e., the procedures have "face validity"), neither the reliability nor the validity of these procedures have been established.  As a result, it must be assumed that data produced using anatomically correct dolls are neither reliable nor valid.

The Federal Government has echoed these views in its call for study proposals on the dolls:

Anatomically correct dolls have increasingly come into use in interviewing children to elicit information about what actually happened when child sexual abuse is suspected and the child is asked to relate the events which occurred.

The use of dolls has proliferated absent systematic evaluation of the validity of the information obtained, the role of the interviewer, the suggestive aspects of the dolls or comments made by the interviewer, changes if any over time and different intervals, differences in information obtained in investigative vs. therapeutic environments.  Although the National Center on Child Abuse and Neglect recently funded one study on the interaction of abused and non-abused children with anatomically correct dolls, additional investigations are needed to establish more empirically-based means for this and other techniques used in interviewing child victims.  51 Federal Register 34738 (Tuesday, 9/30/86).

One group of researchers in the midwest has made the following comments concerning the lack of scientific research in this area:

Two of the more pressing problems created by the use of the anatomical dolls are (1) the lack of structured procedures to guide the interview process and (2) the lack of comparison data describing the responses of non-abused children to SAC [sexually anatomically correct] dolls.  In addressing the first issue, no interview format, structured or otherwise, has been reported as yet in the literature.  Thus, it can be argued that data from various investigations may be unreliable unless a specific protocol is employed in collecting the data.  If investigators do not consistently follow a specific interview format, they may well find the resulting data to be vulnerable to charges that they are biased and unobjective, especially in the context of the judicial systems.  The potential problem of confounding the interview with what may be considered leading questions is also exaggerated without the use of a structured protocol since both between and within interviewer variations are likely to be greater.

The second problem with the use of SAC dolls is that there are no published comparison data with which to compare the responses of children who have been referred for a sexual abuse evaluation with those who have not been suspected of being abused.  Without such comparison data, it is difficult to interpret with confidence the responses of sexually abused children to SAC dolls. As a result clinicians, judicial officers (prosecutors. detectives, judges, juries) are being asked to make decisions based on incomplete facts. and very possibly distorted information. (emphasis added) White, Strom, Santilli, and Haplin, "Interviewing Young Sexual Abuse Victims With Anatomically Correct Dolls," Case Western Reserve School of Medicine, Cleveland Metropolitan Hospital, January 1986, at 4. (unpublished).

Dr. T. F. Nauman, Professor of Psychology at Central Washington University and diplomate of the American Board of Professional Psychology, has stated that anatomically correct dolls are devices which lack validity, for a number of reasons:

1. The dolls usually used are not "anatomically correct" because certain aspects are disproportionately large.

2. The dolls totally lack scientific validity; for years, all attempts by psychologists to make dolls into reliable assessment tools have failed.

3. Reported uses of the "anatomically correct" dolls show a disturbing ignorance of child psychology since it should be known that:

(a) young children are naturally curious, especially about new things,

(b) young children will normally touch, manipulate, and even mouth things,

(c) young children are incapable of understanding a lie in the adult sense,

(d) young children's concept of justice is oriented toward satisfying adults who are in command,

(e) young children behave on the basis of their perception, rather than by logical reasoning.

4. The procedure often violates basic human rights of the child by, e.g., removing all familiar psychological support.

5. Because there is no research to support the use of these dolls; because they are misleading caricatures of the human body; because of the innate curiosity of children and because the use of any device can be dangerous in untrained hands, these dolls have not been generally accepted in the scientific community.  Opinions derived from their use are not based upon a generally accepted theory in the psychological community.  Affidavit of T. F. Nauman, PhD., In Support of Motion Re: Dolls, February 19, 1986), filed in State v. Barley, Cumberland County, North Carolina Superior Court, No.85 CRS 281.

A Canadian researcher, Dr. R. M. Gabriel, in one of the few articles published on the subject of evidence produced by using these dolls, suggests that a great deal of caution must be exercised in this area:

These anatomically correct dolls were originally employed in child psychiatry and in schools as educational toys.  In recent years they were used as an aid in interviewing a child who had complained of an experience which suggested sexual abuse.  But now, however, the dolls have come to be used as a diagnostic tool in the actual investigation of alleged sexual abuse.  Instead of having the dolls be an adjunct to the clinical interview, some child care professionals are offering them to children as play material, hoping to form conclusions about possible abuse from the content of the play.  This is a very questionable technique.  Many persons working in the child protection field are untrained in play theory and do not know about the projection-evoking properties of toys.  The result has been that material produced by children in this manner can appear to confirm suspicions of sexual abuse when it may actually be no more than a normal reaction of a child to the dolls and the situation.  Gabriel, "Anatomically Correct Dolls in the Diagnosis of Sexual Abuse of Children," 3 Journal of the Melanie Klein Society, 40, 42 (Dec.1985).

Dr. Gabriel goes on to say:

This analysis is not to be taken to imply that the evidence of children is without value.  The point is that a fair degree of knowledge and experience is desirable in order to evaluate such evidence.  In particular, the knowledge has to include an awareness of children's thought processes and the changes which take place in them with increasing maturity.

Ignorance of these difficulties could well result in quite innocent adults being accused of child molestation.  On the evidence of the dolls alone, when used as part of a "fishing expedition" exercise, the suspect will almost always be found "guilty," especially if the examiner is already biased in that direction. ...

There is every reason to suspect that the present situation will deteriorate unless it is properly challenged.  Thus it can be seen how extremely important it is not to allow suspect "evidence" to be introduced by unevaluated diagnostic tools.  Gabriel, supra, 49-50.

One of the most recent studies on the dolls concludes:

The information obtained by the use of these dolls in interviews is of no use whatsoever and is misleading.  The dolls are likely to increase the error and decrease the reliability of the information gathered.  Any information obtained from such interviews should be discarded.  There is absolutely nothing to support their use as diagnostic or assessment tools.  They are not generally accepted in the scientific community and nothing obtained from their use should ever be admitted as evidence in any legal setting.  Mclver, Wakefield, and Underwager "Behavior of Abused and Non-Abused Children in Interviews With Anatomically-Correct Dolls," 1 Issues in Child Abuse Accusations 39 (1989).

At this time, there is no evidence that procedures involving anatomically correct dolls are a socio-medical, scientifically reliable means of proving child abuse.  In fact, all the presently existing evidence is to the contrary.  This could change when and if the use of these dolls gains general acceptance in the scientific community as a non-prejudicial tool.  We have not yet come anywhere close to the stage of general acceptance.  Hearsay evidence generated by the use of these dolls ought to be inadmissible.

Several judicial decisions reflect the view that evidence generated by the use of anatomically correct dolls lacks a sufficient scientific basis to be admitted into evidence.  In re Amber B, 236 Cal. Rpt. 623, (Cal. App. 1 Dist. 1987), disc. rev. denied, ____ Cal. Rpt ____ (7-30-87); In re Christine C., 236 Cal. Rpt. 630, (Cal. App. 1st Dist. 1987); U.S. v. Gillespie, 852 F 2d 475 (9th Cir. 1988).

In a recent decision by the North Carolina Supreme Court, State v. Deanes, supra, hearsay testimony generated, in part, by the use of the dolls was allowed.  The defendant's lawyers presented no argument to the court on the issue of the scientific validity of the dolls.  Since no direct attack was made on the use of the dolls by the defense, it is this author's opinion that the question of hearsay statements generated by the dolls is still open in North Carolina, as well as in most jurisdictions.

In addition to the problems generated by the lack of scientific support for the use of the dolls, the specific procedures used by social services personnel are inherently suspect.  First, most social workers have little or no training in the use of the dolls.  Second, a social worker usually has a plethora of information from doctors, relatives, teachers, neighbors, etc., which would cause him or her to be biased and to have a set of preconceived notions as to what to expect from a child suspected to have been abused.  According to researchers at Case Western Reserve University School of Medicine, the objectivity of the interviewer is imperative: "It is strongly advocated here that the interviewer not receive prior information relative to abuse and that the interviewer only be told the child's name and his/her birthdate."  White, Strom, and Santilli, "Clinical Protocol For Interviewing Preschoolers With Sexually Anatomically Correct Dolls," Case Western Reserve University School of Medicine, May 30, 1985, at 2 (unpublished).  Objectivity is the sine qua non of interviewing because:

As a rule, children are quite susceptible to suggestion.  They will adopt the expressions of others or respond with the answers they believe are desired, rather than relating only facts.  R. Royal and S. Schutt, The Gentle Art of Interviewing and Interrogation: A Professional Manual and Guide, 77 (1976).

As stated by one clinical psychologist, the whole interview situation can warp a child's perceptions and responses:

In this setting (which is "high pressure" to the child, especially a young one), a strongly biased interviewer can shape a child's responses by a method called "successive approximation."  Simply put, this means reinforcing or rewarding the child (through smiles, hugs, or statements like "good girl ... don't you feel better now ... that's the way") for statements leading up to and finally including those the interviewer wants to hear.  Mclver, "The Case For a Therapeutic Interview in Situations of Alleged Sexual Molestation," 10 The Champion 11 (Jan/Feb. 1986).

Finally, in order to ensure accuracy, trustworthiness, and lack of bias by the interviewer, the "interviews should be audio- or videotaped in their entirety."  Mclver, supra, 13.  The team at Case Western Reserve also requires recording by videotape, audiotape, or independent evaluators behind two-way mirrors to ensure trustworthiness.  White, Strom, and Santilli, supra, 9-10.  At present, I am aware of no guidelines published by any Department of Social Services designed to ensure that an objective, unbiased, independent record is made.  Without such guidelines, it is impossible for either the court or counsel to reconstruct accurately what went on between a social worker and a child alleged to have been abused.(8)

The foregoing analysis pertains primarily to the use of the dolls in an out-of-court context.  If the child testifies, and uses the dolls to illustrate his or her testimony, a different situation exists.  In this instance, the jury can observe the child's ability to use the dolls and the amount of coaching the child receives from the questioner, thus enabling the jurors to make up their minds based on their own observations not incomplete second-hand accounts.  Moreover, the judge can observe and control the situation in order to prevent either side from using undue influence.  At least two states, Alabama and New Jersey permit this practice by statute.  Ala. Code Sec. 15-25-5; N.J. Stat. Ann. Sec. 2A: 84A-16.1 1.  The case law of North Carolina also permits this practice.  State v. Fletcher, 322 N.C. 415, 368 SE 2d 633(1988).

III, Where Confrontation is Not Required:
The North Carolina approach to Child Hearsay Issues

Within the past few years prosecutors have attempted to avoid child witness problems by calling adults to repeat what the child has told them concerning the abuse.  In order to do this, prosecutors have been making use of exceptions to the rule against hearsay.  The most useful exceptions are Statements for Purposes of Medical Diagnosis and Treatment [N.C.R. Evid. 803(4)]; Excited Utterances [N.C.R. Evid. 803(3)]; and the "Catchall" or "Residual" Exceptions [N.C.R. Evid. 803(24) and 804(b)(5)].  Sometimes the use of these exceptions collides with the Confrontation Clause of the Sixth Amendment.  These collisions produce startling results.  What follows is a discussion of some recent North Carolina decisions, which appear to be part of a nationwide trend in the use of hearsay exceptions in child abuse cases.  In evaluating these decisions it is important to realize that the attitude of the North Carolina appellate courts is very liberal when deciding whether or not to allow highly contested prosecution evidence in child abuse cases.  State v. Williams, 309 N.C. 742,279 SE 2d 592 (1981); State v. DeLeonardo, 315 N.C. 507,340 SE 2d 350 (l986).(9)

A. Statement Made For Medical Diagnosis and Treatment(10)

In State v. Smith, 315 N.C. 76, 337 SE 2d 833 (1985), a four- and a five-year-old girl made statements to their grandmother concerning sexual assaults on them two or three days after the assault.  In their statements, the girls named the defendant as their assailant.  As a result of their statements, the girls were taken to a doctor.  At trial, the girls testified and were cross-examined by the defense.(11)

In ruling the hearsay statements to the grandmother admissible the North Carolina Supreme Court rendered two unique and important holdings: (1) Since the girls' statements immediately resulted in their receiving medical treatment and diagnosis, the statements were admissible as substantive evidence under N.C.R.Evid. 803(4), even though the grandmother did not have a license to practice medicine or psychology.  (This is what I call the "The Grandma is a Doctor Rule.") (2) Statements by the children to their grandmother identifying the defendant as their assailant were admissible under N.C.R.Evid. 803(4).  The second holding is the more shocking of the two since it flies in the face of a plethora of existing case law.

Normally, statements concerning the identity of the perpetrator of an assault are inadmissible, since they are not reasonably related to medical diagnosis or treatment.  Therefore, the identity of the perpetrator of a crime should not be admitted pursuant to this exception.

The holding in Smith allowing the identification of the perpetrator of a sexual assault by a hearsay declarant pursuant to N.C.R.Evid. 803(4) may be limited to situations of child abuse.  As stated by the Court:

We believe that, under these circumstances [emphasis added], the trial court did not err in allowing Mrs. Davis [grandmother] to testify that Gloria [child hearsay declarant] named Sylvester [defendant] as her assailant.  We note also, that because Gloria had identified Sylvester from the witness stand, Mrs. Davis' testimony was corroborative of this fact.  Smith, 315 N.C. at 85, 337 SE 2d at 840.

This holding is very likely confined to cases of child sexual assault and does not extend to sexual assaults where an adult is the alleged victim.  Such a conclusion may be drawn because none of the policy reasons for allowing children's statements into evidence through hearsay repetition exist in adult cases.(12)  One should note, however, that the use of these hearsay statements created no Confrontation Clause problems because the children who made the hearsay statements actually testified and were subject to cross-examination by the defendant.

Smith also contained a second holding with respect to the Medical Diagnosis or Treatment Exception.  The girls in question made statements concerning the sexual abuse to two women volunteers from the local Rape Task Force.  The statements were made at the conclusion of medical examinations given the girls by physicians.  The Court held that the testimony of these women "could not properly have been admitted as substantive evidence under either Rule 803(4) (medical diagnosis or treatment) or Rule 803(2) (excited utterances) ..." at 98, at 848.  The Court did not elucidate its reasoning for disallowing the hearsay testimony of the Rape Task Force Volunteers, but it appears from a close reading of the case that the volunteers appeared at the hospital to console the girls rather than to diagnose or treat their problems.  The children's statements probably did not qualify as excited utterances because by the time the volunteers arrived, the children had been repeatedly interviewed and their statements by then lacked the spontaneity required by the Excited Utterance exception.  (See discussion below.)  Statements to social workers arriving on the scene after medical examinations are complete ought to be covered by this holding.  In fact, social workers occupy a position clearly analogous to the police officer in Ellison v. Sachs, supra.

The case of State v. Gregory, supra, provides the first real clash between a defendant's Confrontation Clause rights and a prosecutor's desire to use hearsay in a child sexual abuse context in North Carolina.  The defendant in Gregory was on trial for taking indecent liberties with his three and one-half-year-old daughter.  The trial judge declared the girl incompetent to be a witness.  The judge then permitted a doctor who treated the girl to testify that the child had identified her father as the person who had perpetrated the sexual assault on her.  The defendant objected on the grounds that his right to confront and cross-examine his accuser under the Sixth Amendment was violated.  The Court held no constitutional violation occurred.

The Court's opinion started with a traditional Roberts analysis:

A prosecutor is prohibited by the Sixth Amendment to the United States Constitution and Article I, Section 23 of the North Carolina Constitution from introducing any hearsay in a criminal trial unless two requirements are met.  The prosecution must show both the necessity for using hearsay testimony and the inherent trustworthiness of the original declarations [citations omitted].

This two part confrontation clause test is not all form and no substance.  Merely classifying a statement as a hearsay exception does not automatically satisfy the requirements ... of the Sixth Amendment. supra, 576, 112.

In ruling the doctor's testimony concerning the girl's out-of-court statement admissible the Court went on to hold:

The unavailability of the victim(13) due to incompetency and the evidentiary importance of the victim's statement adequately demonstrate the necessity prong of the two prong confrontation clause test.

The second prong of the confrontation clause is also met.  A person, even a young child, making statements to a physician for the purposes of medical diagnosis and treatment has a strong motivation to be truthful. supra, 568, 113.

Gregory is a perfect example of the appellate courts' "liberal" approach to evidentiary questions in child abuse cases.  It also is a perfect example of the appellate courts' desire to "do something" about child abuse.  The Gregory Court completely failed to address two key questions: (1) what effect does the incompetency of the three and one-half-year-old hearsay declarant have on the reliability of the hearsay statement?; and (2) does a three and one half-year-old child really understand that he or she needs to be truthful with a doctor in order to receive a correct diagnosis and proper treatment?  Each issue deserves meaningful discussion.

First, the Gregory court clearly failed to analyze the child's abilities at the time the hearsay statement was made.  As noted above:

In regard to trustworthiness of child hearsay statements, it is important to consider a factor not mentioned by the courts in Smith, Aguallo, and Gregory the child's capacity to relate facts accurately at the time he made the statement in question.  This factor is particularly important when the prosecution argues the child victim is unavailable because he is incompetent to testify.  If the child is incompetent because the ordeal of appearing in court so intimidates him that he cannot testify, then his prior statement made in a less formal setting (such as a physician's office) might well be trustworthy.  But if the child is incompetent because he cannot communicate or he cannot understand the importance of telling the truth, then his incompetence casts strong doubts on the trustworthiness of his earlier out-of-court statement.  Sendor, "Rules of Evidence in Criminal Trials Involving Child Victims," 52 Popular Government, 11-12, 1987.

Four different Courts have now given some measure of review to Gregory.(14)  None of them has dealt with this issue.  Why not?  One can only speculate, but it appears that dealing with this issue would conflict with the unstated judicial agenda of "doing something" about child abuse.  If an honest, critical review of this problem was undertaken, it appears that the defendant has a better than even chance of prevailing.  Such a review might produce a result inconsistent with "doing something."  Therefore, the problem is ignored.

The second issue not dealt with by Gregory concerns whether or not a three and one-half-year-old child realizes that she needs to be truthful with the doctor to obtain a correct diagnosis and treatment.  Former Chief Justice Billings dealt with this issue in her dissent in State v. Aguallo, 317 N.C. 590, 350 SE 2d 76(1980).

The benchmark for use of hearsay testimony is an identifiable reason for recognizing that the statement made by a declarant out of court and not under oath is inherently reliable.  That inherent reliability may be found in the self-interest of a person seeking medical treatment.  The patient, seeking help for his or her medical condition, realizes that in order for the physician to make an accurate diagnosis and to provide effective treatment, the information regarding the onset of symptoms, the location and kind of pain, etc., must be accurately related.  State v. Smith, 315 N.C. 76, 337 SE 2d 833(1985).  The information is inherently reliable only if the speaker realizes the necessity for the information to be correct ...

Instead of adopting a mechanical rule that so long as the recipient of an out of court declaration has a medical degree, the statement of a patient is admissible at trial if the physician is aware of some diagnosis or treatment use which he or she can make of the information, I would require at least some basis upon which to infer that the declarant was aware of the heightened need for truthfulness.  If, as I suspect, the basis for the majority's faith in the reliability of the statement has more to do with the age of the victim than it does with her realization of the need for truthfulness in order to get appropriate treatment, this Court should encourage the legislature to consider the appropriateness of special rules for obtaining evidence in child sexual abuse cases rather than to try to fit this testimony into a mold which cannot contain it.  As at least one commentator has observed, "Concern over the recent revelations of child sex abuse have [sic] caused several state courts to expand, if not distort, the concept of diagnosis or treatment."  M. Graham, Handbook of Federal Evidence, Sec. 803A at 828 n. 4 (2d ed. 1986). supra, (Billings, J., dissenting) 600-602, 82-83.

The distortions in evidence law noted by former Chief Justice Billings are a clear result of the unspoken judicial agenda of "doing something" about child abuse.

The former Chief Justice, noting the trend set by Aguallo, went on to say:

In the case sub judice the hearsay declarant also testified at trial and was subject to confrontation and cross-examination by the defendant; therefore substantive use of the hearsay evidence does not raise questions about violation of the defendant's rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution.  The majority opinion appropriately does not deal with the Confrontation Clause problem since it was not raised.  However, I fear that this case may encourage prosecutors to rely exclusively upon the testimony of physicians, relating hearsay statements of child victims in sex abuse cases, to identify the abusers.  I therefore dissent from the holding that the statement of the child to the witness was admissible as substantive evidence, and I also write to suggest that prosecutors exercise caution in relying exclusively on hearsay statements to prove the offense in cases of child sexual abuse.  Aguallo, at 602, at 83.

The fears of the former Chief Justice were realized in the Jones and Deanes cases discussed below.

The flip side of the Confrontation Clause coin occurred in the quirky case of State v. Jackson 320 N.C. 452, 358 SE 2d 679, (1987).  In Jackson the defendant was tried for the rape of a girl under age thirteen, convicted, and sentenced to life imprisonment.  At trial the girl took the stand and recanted her prior statements to medical personnel to the effect that the defendant had raped her.  The trial judge permitted the prosecution to offer the girl's out-of-court statements to the medical personnel, ruling they were admissible pursuant to the Medical Diagnosis or Treatment Exception to the hearsay rule.  The defendant appealed, claiming his Sixth Amendment rights were violated by admission of the girl's hearsay statements.  The North Carolina Supreme Court ruled that no Confrontation Clause violation took place.  At first blush this may seem strange, but in reality it is a well-reasoned decision.

The Sixth Amendment guarantees the right of the defendant to face his accusers.  In Jackson the girl took the stand, recanted, and was subject to cross-examination.  The defendant's Sixth Amendment rights were upheld once the child faced the defendant in open court and once he cross-examined her, even though she recanted.  Had she recanted prior to trial, not taken the stand, and had the hearsay statements to medical personnel been admitted, there would have been a serious confrontation problem.  In Jackson, the jurors had the opportunity to see the witness in the flesh, evaluate her demeanor, compare her in-court statements to her out-of-court statements and other evidence, and to make their own judgments concerning the truth.  The defendant might argue about the appropriateness of the prosecution's decision to go forward in the light of the child's recantation, but he cannot complain on constitutional grounds.(15)

B. Excited Utterances(16)

The Court in Smith also ruled that the previously-mentioned statements made by the girls to their grandmother concerning the assaults were admissible as excited utterances pursuant to N.C.R.Evid. 803(2).  This was so even though the statements in question were made two to three days after the alleged assaults.

In construing Rule 803(2), the Court held that there are two requirements for admission of an excited utterance pursuant to the rule: "(1) a sufficiently startling experience suspending reflective thought and (2) a spontaneous reaction, not one resulting from reflection or fabrication," at 86, at 841.  The Court held that the girls' statements met these criteria even though they were made two to three days after the alleged assaults.  The Court held that a sexual assault was sufficiently startling and stressful to cause a small child to suspend reflective thought for two to three days, at 87-89, at 841-842.  The Court went on to hold that the statements were also spontaneous in that the girls volunteered the information, rather than having the statements elicited as a result of interrogation.

Smith may be limited to statements made within a two to three day period.  Most cases admitting excited utterances by children involve extremely short time lapses between the assault and the statement: U.S. v. Iron Shell, 633 F. 2d 77 (8th Cir. 1980) (statement made 45-75 minutes after assault); U.S. v. Nick, 604 F. 2d 1199 (9th Cir. 1979) (statement made by child immediately after child brought home from babysitter's house, where babysitter was the assailant); State v. Gollon, 340 N.W. 2d 912 (Wis. 1983) (statement by six year old to mother one to two days afterwards); Bridges v. State, 19 N.W. 2d 529 (Wis. 1945) (seven year old told mother one hour after assault).  As the time gap grows, other courts have found spontaneity lacking, and thus the child's statements were held inadmissible.(17)  Moreover, if the adult who hears the statements is some sort of investigator, such as a police officer or social worker, the statements would lack spontaneity because they would be produced as a result of interrogation rather than being volunteered as in Smith.

Smith's holding on excited utterances represents an extension or departure from prior judicial decisions.  It embodies the North Carolina Supreme Court's unspoken agenda of "doing something" about child abuse.

The North Carolina Court of Appeals relied on Smith in a case concerning excited utterances, State v. Jones, 89 N.C. App; 584, 367 SE 2d 139 (1988).  In Jones, a four-year-old child reported to her parents within ten hours after leaving the defendant's custody that the defendant "pulled my pants down and touched my pee patch again."  Jones, supra, 595, 142.  The child was declared incompetent to be a witness prior to trial.  At trial the parents were permitted to repeat the child's out-of-court assertions.

The Court of Appeals ruled that the parents' testimony was admissible pursuant to the excited utterance exception.  Furthermore, the Court held that its admission complied with Roberts because the child was unavailable due to incompetency, and the hearsay fell within a firmly rooted exception to the hearsay rule (excited utterance).  Former Chief Justice Billings' fears that prosecutors would rely completely on hearsay testimony (and dispose with live, in-court testimony) have been realized fully in Jones.  After Jones, as one commentator puts it, "The Victim Speaks No More." Widenhouse, supra, 16 Trial Briefs 9, NCATL, (1985).

C. "Catchall Exceptions": N.C.R.Evid. 803(24) and 804(b)(5)(18)

If a prosecutor is unable to fit the alleged child victim's statement into N. C. R. Evid. 803(2), 803(4), or one of the other specifically denominated hearsay exceptions, he or she may attempt to resort to the "Catchall Exceptions" embodied in Rules 803(24) and 804(b)(5). "Rule 804(b)(5) is a verbatim copy of Rule

803(24), except that Rule 804(b)(5) also requires that the declarant be unavailable before the hearsay may be admitted and Rule 803(24) does not."State V. Tripplea, 316 N.C. 2, 7, 340 SE 2(1 736, 740 (1986). State V. Smith, supra, prescribes a six-part test for the admission of hearsay pursuant to Rule 803(24). The same six-part test was adopted as a prerequisite to admission pursuant to Rule 804(b)(5) by the Court in Tripplea. Before admitting any testimony pursuant to these rules, the trial judge must undertake the six-part analysis required by the Smith Court, and make recorded findings offact and conclusions of law in order to allow appellate review. Failure by the trial judge to undertake the six-part analysis and make the required findings is reversible error if testimony is admitted pursuant to N.C.R. Evid. 803(24) or 804~)(5).

The six elements of the inquiry required of a trial judge by the North Carolina Supreme Court are set forth below. They are:

  1. Has proper notice been given?
  2. Is the hearsay not specifically covered elsewhere?
  3. Is the statement trustworthy?
  4. Is the statement material?
  5. Is the statement more probative on the issue than any other evidence which the proponent can procure through reasonable efforts?
  6. Will the interests of justice be served by admission? Smith, supra, 92-97, 844-847.

Each of these requirements must be fully satisfied in order for the trial judge to admit the proposed "catchall" hearsay.  If one requirement is not met, the evidence may not be admitted, Smith, supra, 90-99, 843-848.  Of these six requirements, clearly number three, trustworthiness, is the most important.

In dealing with the trustworthiness requirement, Smith, lists four factors to take into account in making this determination:

  1. assurance of personal knowledge of the declarant of the underlying event.
  2. the declarant's motivation to speak the truth or otherwise.
  3. whether the declarant ever recanted the testimony.
  4. the practical availability of the declarant for meaningful cross-examination; Smith, supra, 93-94, 845.(19)

The North Carolina Supreme Court applied the Smith criteria to a child sexual abuse situation in State v. Deanes, supra.  In Deanes, the prosecution's desire to use "catchall" hearsay ran directly contrary to the defendant's confrontation rights.  Needless to say, the prosecution prevailed.

The facts of Deanes are somewhat complicated, and an understanding of them is necessary to an appreciation of the case.  The defendant was convicted of the first degree rape of a five-year-old girl and sentenced to life imprisonment.  Prior to his conviction the defendant lived with the child, her mother, her younger sister, and her mother's boyfriend.  Their house was made up of three rooms a living room, kitchen, and bedroom.  The child, her mother, her sister and her mother's boyfriend all slept in the bedroom.  The defendant slept on the couch in the living room.

The child's mother appears to have had a severe drinking problem and was intoxicated when she went to bed on the night of the assault.  The child awakened her mother at midnight and was complaining she was sore in the vaginal area.  The mother observed the area to be irritated.  In response to her mother's questions, she indicated the defendant had "messed" with her.  The mother went into the living room and saw the defendant and her boyfriend asleep.  She was still intoxicated.  The next morning the mother confronted the defendant, who denied assaulting the child.

The local Department of Social Services became involved pursuant to an anonymous phone call.  A social worker talked with the child privately.  The child was reluctant to talk.  Eventually, the child identified the defendant as her abuser.  The child denied the mother's boyfriend was involved.  She said she knew a lie was "when you tell the story."

The child was examined by a pediatrician the next day.  Physical indications of abuse were noted by the doctor.  A gonorrhea test proved positive.  The defendant tested positive also.

The child was given anatomically correct dolls.  After much pretending and prodding by the social worker, she placed the dolls in an intercourse position.  The child repeated her demonstration with the dolls for the local police chief.

At trial, the judge ruled the girl to be an incompetent witness, ruling her a "shy and ineffective communicator."  Deanes, supra, 514, 254.  This ruling was based on the testimony of the child, social worker, pediatrician and police chief.  The social worker was permitted, over the defendant's objection, to testify to the child's series of statements concerning the abuse.

The North Carolina Supreme Court upheld the trial judge's decision to admit the social worker's testimony concerning the child's extrajudicial statements.  The Court held that the social worker's testimony was admissible pursuant to the "Catchall" Exception embodied in N.C.R.Evid. 803(24), and not violative of the defendant's confrontation rights pursuant to the Sixth Amendment and the North Carolina Constitution, Article I, Section 23.  The key issues were: (1) the unavailability of the child due to incompetency; and (2) the trustworthiness of the child's statement.  The Court, citing Gregory, held that an incompetent witness was "unavailable" pursuant to Roberts.  Furthermore, the child's statements were held to be trustworthy because she had no motive to lie, and the physical evidence, along with the child's demonstration with the dolls, corroborated her oral statements.  Notably absent from the Court's decision was any evaluation of the child's incompetency and the use of the anatomically correct dolls on the determination of trustworthiness.  Moreover, the opinion lacks any meaningful discussion of whether a "shy and ineffective communicator" is really an unavailable witness.

In dealing with hearsay statements, especially those not covered by a "firmly rooted" exception, it is vitally important for courts, at a very minimum, to evaluate the effect of a child's incompetency on the trustworthiness of his or her hearsay statements.  The Deanes court failed to undertake this review.  Deanes stands for the proposition that the out-of-court statements of an incompetent witness can be rendered competent merely by adult repetition.

Furthermore, in making his competency inquiry, the trial judge relied upon the testimony not only of the child, but also adults who observed her outside court the social worker, the pediatrician, and the police chief.  If these adults observing her outside court found the child to be a poor communicator, what does this say about the trustworthiness of her statements?  But, once again, the Deanes Court is silent.(20)

A large part of the child's out-of-court statements was generated by her exposure to the anatomically correct dolls.  As previously stated, these dolls "are not generally accepted in the scientific community and nothing obtained from their use should ever be admitted as evidence in any legal setting."  Mclver, Wakefield, and Underwager supra, 20.  The Deanes Court does not confront the issue.(21)

Finally, is a "shy and ineffective communicator" truly an unavailable witness within the meaning of Roberts?  Very possibly not.  "If the child is merely uncommunicative in a judicial setting or unduly vulnerable to the potential trauma, 'sensitive' might be a more accurate label than 'unavailable."'  Billionis, supra, 23.

IV. Where Do We Go From Here? Suggestions For a More Reasonable Approach To Child Hearsay Issues

A. Deanes: Much Room For Improvement

What could the Deanes Court have done to answer these problems?  First, it could have sent the case back to the trial court for a determination of the effect of the child's age, ability to communicate and to discern truth from falsehood at the time the out-of-court statements were made.(22)  This type of hearing could shed light on the child's competency to.; be a witness and the trustworthiness of her hearsay statements.

Second, the Court could confront the issue of the anatomically correct dolls and trustworthiness.  It could do this in one of two ways.  The Court could address the issue itself on the basis of available information, or, it could send the case back to the trial court for an evidentiary hearing where both sides could present evidence on the validity of dolls.  If the Court determined doll evidence to be untrustworthy, it could order a new trial, excluding it.  At any rate, the Court's opinion on this issue would be of great value to judges, prosecutors, and defense lawyers.  As it stands now, the Deanes opinion flies in the face of existing scientific evidence and judicial precedent.

Finally, the Court could give us guidance on when a witness crosses the line from merely being uncommunicative to unavailable.  Once again, a forthright discussion of this issue would be illuminating for those involved in these types of trials.  Had the Deanes court considered these issues, the end result may still have been the same.  Without answers to these questions it remains a badly flawed opinion.

Deanes represents the culmination of the unspoken judicial agenda of "doing something" about child abuse.  In Deanes the law has been molded, to the point of distortion, in order to reach the results viewed as desirable by the Court.  Moreover, it presents "the temptation for a prosecutor to resort to a child's hearsay in lieu of live testimony merely to gain a tactical advantage ..." Billionis, supra, 22.  Justice Meyers, in writing for the Court, addressed this possibility:

We emphasize that in approving the admission of the child's statement, we do not establish a per se rule that a child victim's statement to a social worker is admissible when the child is found not competent as a witness and there is some corroboration of the child's statements.  Deanes, supra, 525-526, 261.

Don't bet next month's pay on it.  Justice Meyers would not have felt compelled to make such a statement unless he realized the implications of the Court's opinion.  It is difficult to imagine a child-social worker out-of-court scenario which would not meet with an appellate court's approval with Deanes as precedent.  Deanes virtually suspends the Sixth Amendment in child hearsay cases.  It is a devastating blow to the confrontation values embodied by the Sixth Amendment.  In North Carolina, after Deanes, the child victim, truly, speaks no more.

B. Technology As One Solution to Hearsay/Confrontation Issues

As the foregoing demonstrates, the Sixth Amendment's Confrontation Clause is sinking rapidly under the weight of the expanded use of hearsay exceptions.  Are the protections embodied in the Confrontation Clause something we, as a society, wish to abandon completely in order to facilitate the prosecution of alleged child abusers?  I think not.  There should be a way to accommodate the defendant's right to stand face to face with his accusers (or at least to cross-examine them) and society's legitimate need to prosecute the alleged abuser.  Justice O'Connor's concurring opinion in Coy v. Iowa, supra, points us in that direction.

Justice O'Connor notes that half the states have authorized the use of some sort of closed circuit television in child abuse cases:

Statutes sanctioning one-way systems generally permit the child to testify in a separate room in which only the judge, counsel, technicians, and in some cases the defendant, are present.  The child's testimony is broadcast into the courtroom for viewing by the jury.  Two-way systems permit the child witness to see the courtroom and the defendant over a video monitor.  In addition to such closed-circuit television procedures, 33 states (including 19 of the 25 authorizing closed-circuit television) permit the use of video taped testimony, which typically is taken in the defendant's presence ... Initially many such procedures may raise no substantial Confrontation Clause problems since they involve testimony in the presence of the defendant.(23)  Coy v. Iowa, supra, 868.

Such statutes recognize the State's compelling interest in protecting children by attempting to control or minimize the trauma to the child witness, while preserving the defendant's right to "confound and undo the false accuser, or reveal the child coached by a malevolent adult."  Coy v. Iowa, supra, at 866.  Statutes such as these carry with them the implicit recognition that the cross-examination of an adult witness who repeats a child's out-of-court statement is virtually meaningless.  The cross-examination of an adult proxy cannot serve as a substitute for cross-examination of the child, which may expose key facts unknown to adult proxy but known only by the child and the accused.  Statutes of this type also reduce the temptation for prosecutors to resort to hearsay in lieu of live testimony to gain a tactical advantage, because, prosecutors would be required to resort to these procedures (in most cases) before seeking a declaration of unavailability.

Furthermore, these statutes contemplate their use only in extraordinary situations.  The statutes recognize that some but not all, children need special protection.(24)  They also spell out in clear and specific detail the circumstances under which the protections may be invoked.  These procedures are much to be preferred to ad hoc, hazy judicial determinations of unavailability.  Moreover, and most importantly, they recognize that something can be done about child abuse without the wholesale abrogation of the accused's rights pursuant to the Confrontation Clause.

V. Conclusion

The foregoing are by no means an exhaustive listing of all the nuances of child hearsay and the Confrontation Clause.  This is a nuts and bolts approach, not a scholarly treatise.  It is intended to provoke thought among those of us dealing with these problems.

Tragically, child abuse has and will continue to haunt society.  Because of the public hysteria generated by the news media and the general public's perception of these cases, special efforts are required by all parties to these cases to remain cool under fire and to recognize the legitimate concerns of each side.  Prosecutors, defense attorneys, and most of all, judges, must not give into the highly-charged emotional atmosphere of these cases.

Legislatures need to recognize that something can be done about child abuse consistent with the Confrontation Clause by promoting the use of closed circuit television, under tightly controlled circumstances.  In jurisdictions where closed circuit television statutes are on the books, the trial and appellate courts should begin the contraction of the over-expanded use of hearsay exceptions.  Finally, all persons interested in child abuse issues would be well-advised to keep in mind the comments of the present Chief Justice of the North Carolina Supreme Court:

Cases like this involving alleged sexual assaults against young children tear at the hearts of us all.  Emotions tend to run high and our natural inclination is to want to favor and protect the child.  In these cases especially it is important that the courts permit the state to put on all the legitimate evidence it has to prove its case.  It is equally important that courts be assiduous to keep out evidence which is both irrelevant to defendant's guilt or innocence or to any other question in the case but which may incline the jury to want to convict defendant for reasons other than evidence of his guilt of the crime for which he is being tried.  State v. Burgin, 313 N.C. 404, 417; 329 SE 2d 653, 661 (Exum, J., dissenting)(1985).



"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the matter asserted." N.C.R.Evid. 801(c).

"A 'statement' is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion." N.C.R.Evid. 801(a).

"A 'declarant' is a person who makes a statement." N.C.R.Evid. 801(1)).

"Hearsay is not admissible except as provided by statute or by these rules." N.C.R.Evid. 802.  [Back]


The whole issue of whether a witness needs to be unavailable has been called into question by the decisions of the U.S. Supreme Court in U.S. v. Inadi, 89 LE 2d 390 (1986) and Bourjaily v. U.S., 97 LE 2d 157 (1987).  These decisions seem to say that as long as hearsay fits within a firmly rooted hearsay exception the unavailability of the person making the hearsay statement, the declarant, need not be shown.  The author has gone so far as to suggest that the declarant need not be unavailable as long as the hearsay fits within one of the exceptions set forth by the Federal Rules of Evidence, thus relieving the proponent of any need to make a good faith effort to attempt to produce the declarant.  Graham, "The Confrontation Clause and the Hearsay Rule: 'Congruent or Not Congruent?' That is the Question," 12 The Champion 3 (May 1988).  This runs contra to California v. Green noted above.

In North Carolina unavailability is still a requirement for admission of hearsay even if it falls within a firmly rooted exception.  State v. Kerly, 87 N.C. App. 240, 360 SE 2d 464 (1987); pet. disc. rev. denied, 321 N.C. 476; 364 SE 2d 661, State v. Jones, 89 N.C. App. 384, 367 SE 2d 139 (1988).  Both of these cases were decided after Inadi and Bourjaily.  [Back]


There is a real question as to whether being incompetent constitutes a true showing of unavailability.  At least one court has decided that the incompetency of a witness does not necessarily make him or her unavailable:

[t]he State's equation of unavailability and incompetency is faulty in several respects.  First, incompetency and unavailability serve separate purposes, and mean different things.  Second, as the discussion on reliability below indicates, a resolution that a witness is incompetent precludes most hearsay statements of that witness whether available or not.  State v. Ryan, 691 P 2d 197, 202 (Wash. 1984).  [Back]


"Reliability can be inferred without more in a case where the evidence falls within a firmly-rooted hearsay exception.  In other cases, the evidence must be excluded at least absent a particularized showing of trustworthiness."  Roberts, supra, 608.  [Back]

(5) The author is a former New York City prosecutor and former director of the National Center on Child Abuse and Neglect.  [Back]

As a defense lawyer, I would prefer a holding that a finding of incompetency automatically prohibits the use of the incompetent witness' out-of-court statements.  One of the oldest and most respected authorities on the law of evidence agrees: "If the declarant would have been disqualified by reason of infancy ... his extrajudicial declaration must also be inadmissible." 5 J. Wigmore, Evidence, Sec. 1445 at 304 (1974).  The case of Wisconsin v. Sorenson, 56 LW 2606 (1988) provides one possible compromise between those who feel as I do and those who would ignore the effect of a finding of incompetency on the trustworthiness of hearsay statements.

In this case the child in question refused to answer questions concerning sexual contact with her father.  The child was declared an unavailable witness by the court: A social worker was then permitted to testify concerning the child's statements about the alleged sexual contact.  In reviewing the propriety of admitting the social worker's rendition of the child's out-of-court statements, the court looked to several factors:

First, the attributes of the child making the statement should be examined, including age, ability to communicate verbally, to comprehend statements or questions of others, and to know the difference between truth and falsehood (emphasis added), and any fear of punishment, retribution or other personal interest, such as close familial relationship with the defendant, expressed by the child, that might affect the child's method of articulation or motivation to tell the truth.  Sorenson, supra, 2606.

Other factors listed are: the relationship of the child and the person to whom he makes the statement: the circumstances under which it was made; the content of the statement itself; and corroborating evidence.

See also, People v. District Court of El Paso County, 45 CrL Rptr. 2343 (1989), wherein the Colorado Supreme Court has held that a finding of incompetency does not automatically render a child's hearsay statements inadmissible, but requires the trial judge to scrutinize the hearsay to determine its indicia of trustworthiness.  [Back]


I use the pejorative adjective "so-called" in describing "anatomically correct" dolls because this author's examination of several of these dolls reveals they are not anatomically correct.  The genitals of these dolls are disproportionately large.  It appears that the makers of these dolls are deliberately trying to draw the attention of the small children using them by making the genitals so prominent.  [Back]

(8) For a case where child hearsay was excluded from evidence because the out-of-court interview was not videotaped, the interviewer had preconceptions concerning the defendant's guilt, and the interview was conducted in a leading manner, see State v. Wright, 45 CrL 2264 (Idaho, 1989).  [Back]

Query: Should courts maintain a "liberal" approach to admission of evidence in child abuse cases, or should the same rules apply to all persons accused of any crime?  Judge Cavanaugh of the Pennsylvania Superior Court addressed the problem of victim-specific evidentiary rules while writing for the majority in Commonwealth v. Haber, 505 A. 2d 273, (Pa. Super. 1986) at 276:

We do not believe that the out-of-court assertions of children, particularly four and five year old children, are substantially more trustworthy than the out-of-court assertions of adults.  Life experience furnishes no basis upon which we can fairly conclude that children have any special qualities which render them as being dependable, accurate historical reporters.  Therefore, such assertions of children do not merit exception to the hearsay rule.

Evidentiary rules, including the hearsay rule, have a raison d' etre.   Experience has taught us that trials conducted in accordance with such rules increase the likelihood of a fair and just resolution of the issues by the trier of fact.  Otherwise, we would jettison the lot of them.

It is true, of course, that permitting the Commonwealth to introduce the out-of-court assertions of children against the defendant in a child abuse case would make it easier to convict the guilty.  Unfortunately, it would make it easier to convict the innocent.  If such a tradeoff is acceptable, why not suspend the hearsay rule entirely when the Commonwealth introduces evidence in a criminal case?  More defendants, guilty and innocent, would undoubtedly be convicted.  The same result would obtain if we allowed the Commonwealth to introduce coerced confessions.

However, such a trade-off is not acceptable.  It is a fundamental precept of law in Pennsylvania that one charged with crime, be it murder, child abuse, or keeping a public nuisance, comes to trial clothed in the presumption of innocence.  If we bear this in mind, we will be less tempted to distort the law of evidence in favor of the Commonwealth in order to increase the conviction rate.  The Commonwealth should be bound by the same rules of evidence, including the hearsay rule, as other litigants.

Judge Cavanaugh has clearly perceived the general unspoken ,judicial trend towards doing something about child abuse, along with the trend's pitfalls.  Should his views prevail?  Yes.  Will they?  Probably not.  [Back]

(10) N.C.R.Evid. 803: "The following are not excluded by the hearsay rule even though the declarant is available ... (4) Statements for Purposes of Medical Diagnosis or Treatment.  Statements made for the purposes of medical diagnosis or treatment, and describing medical history, or past or present symptoms, pain or sensations, or the inception thereof insofar as reasonably pertinent to diagnosis or treatment."  [Back]
(11) It is difficult even after a careful reading of Smith to say with 100% certainty that both girls testified, but this is a reasonable assumption considering the lack of discussion of possible Confrontation Clause violations by the court.  No Confrontation Clause violation occurs (normally) as long as the accuser(s) testifies and is subject to cross-examination, even if the hearsay statements add new or supplemental information to the accused's live testimony.  See also U.S. v. Owens, 98 LE 2d 951 (1985).  [Back]

In State v. Aguallo, 311 N.C. 590, 350 SE 2d 76 (1986), the North Carolina Supreme Court reaffirmed and reinforced the Smith holding. In Aguallo, the Court noted two reasons why the identity of the perpetrator of a child sexual assault is pertinent to diagnosis and treatment in child sexual abuse cases:

First, a proper diagnosis of a child's psychological problems resulting from sexual abuse or rape will often depend on the identity of the abuser.  Second, information that a child sexual abuser is a member of the patient's household is reasonably pertinent to a course of treatment that includes removing the child from the home.  Aguallo, supra, 597,80.

The Court also noted that in the normal adult sexual assault case the victim's statements to a treating physician regarding the identity of the alleged assailant are not admissible under the Medical Diagnosis or Treatment hearsay exception, because such statements are not reasonably pertinent to diagnosis or treatment.  [Back]

(13) Should unavailability and incompetency be considered equivalent terms?  See Footnote 3.  [Back]

Gregory has been reviewed to some degree by the N. C. Court of Appeals; the N. C. Supreme Court; the Federal Magistrate for the Eastern District of North Carolina; Gregory v. Cherry, Magistrates Memorandum and Recommendation (slip opinion, 87424-HC (10-7-88)); and the Federal District Court for the Eastern District of North Carolina, Gregory v. Cherry, (slip opinion, 87424-HC 10-14-88))  The Federal District Court ordered a new trial on other grounds.

Not only has there been a lack of meaningful review of this issue, the Court of Appeals in State v Jones, 89 NC App. 584, 367 SE 2d 139 (1988), reaffirmed Gregory and extended its reach in determining what out-of-court statements are admissible pursuant to N.C.R.Evid. 803(4).  (Child ruled incompetent to testify by the trial judge.  Statements made by the child to the Duke Hospital "Child Protection Team," three months after reporting sex abuse to her parents, held admissible pursuant to Rule 803(4) and not violative of the Sixth Amendment.) See also, In Re Lucas, ___ NC App. ____; 380 S.E. 2d 563 (1989).  [Back]

(15) For two interesting articles concerning children recanting prior allegations of sex abuse and expert testimony pertaining thereto, see McCord "Expert Psychological Testimony About Child Complainants in Sexual Abuse Prosecutions: A Foray Into the Admissibility of Novel Psychological Evidence," 773 Crim. L. & Criminology 9 (1986), Note "The Unreliability of Expert Testimony on the Typical Characteristics of Sexual Abuse Victims," 74 Geo. L. J. 429 (1985)  [Back]

N.C.R.Evid. 803: "The following are not excluded by the hearsay rule, even though the declarant is available as a witness ... (3) Excited Utterance.  A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."

The Excited Utterance exception is not without its critics.  See Hutchins & Slesinger, "Some Observations on the Law of Evidence," 28 Colum. L. Rev. 432, 439 (1928) (what the emotion gains by way of overcoming the desire to lie, it loses by impairing the declarant's power of observation).  [Back]


See, e.g., Keefe v. State, 72 P. 2d 425 (Ariz. 1937) (4-year-old girl's statements to her parents 5 to 6 days after the alleged commission of an act of sodomy); State v. Lovely, 517 P. 2d 81 (Ariz. 1973) (7-year-old girl's statement to a police officer 2 weeks after the alleged offense of lewd and lascivious conduct); Brown v. State, 344 So. 2d 641 (Fla. App. 1977) (statement of a girl under 14 years of age to her mother 3 days after an alleged lewd and lascivious act); Scott v. State, 206 SE 2d 558 (Ga. App. 1974) (female child's statement to a police officer 3 days after an alleged molestation); State v. King, 122 A. 578 (Me. 1923) (9-year-old girl's statement to her mother 1 week after the last in a series of sexual offenses); Harnish v. State, 266 A. 2d 364 (Md. App. 1970) (5-year-old boy's statement to his mother regarding an alleged unnatural act allegedly committed 11 days earlier); State v. Jalette, 382 A. 2d 526 (R.I. 1978) (8-year-old girl's statement to a police officer approximately 36 hours after an alleged indecent assault); Sherrill v. State, 321 S.W. 2d 811 (Tenn. 1959) (10 and 11-year-old boy's statements to each of their mothers as to alleged crimes against nature committed by the accused more than 3 weeks previously); Grace v. State, 29 S.W. 2d 394 (Tex. Crim. 1930) (female of unspecified age to her mother 3 days after an alleged aggravated assault); Pepoon v. Commonwealth, 66 SE 2d 854 (Va. 1951) (3-year-old boy's statement to his mother 7 to 10 days after an alleged assault); State v. Messamore, 639 P. 2d 413 (Hawaii 1982) (3-year-old boy's statement to a parent 10 days after the assault).  [Back]

(18) N.C.R.Evid. 803(24) and 804(1))(5) are quite lengthy.  For the complete text see Appendix.  [Back]
(19) Compare these factors to the more carefully crafted criteria of Wisconsin v. Sorenson, Footnote 6.  [Back]

In a recent civil case, the Fourth Circuit dealt with the effect of a child's incompetency on the trustworthiness of her out-of-court excited utterances. Morgan v. Foretich, 846F2d 941 (4th Cir. 1988).  The defendant argued that incompetency precluded the admission of the child's out-of-court excited utterances.  The Court disagreed and found that the statements were admissible regardless of the child's competency to testify in court.  The rationale was that the nature of the excited utterance "is such that it obviates the usual sources of untrustworthiness in children's testimony." supra, 946-947, n. 7-8.

In Deanes, the child's testimony was not received pursuant to the excited utterance exception but pursuant to the "catchall" exception.  The "catchall" exception cannot be said to be self-authenticating as can the excited utterance exception.  The Deanes Court does not consider the issue.  [Back]

(21) Granted the defendant's lawyers did not directly attack the doll evidence; but in cases of great magnitude involving novel issues, the N. C. Supreme Court is known to reach out for issues not raised by either side. e.g., State v. Fearing, 315 N.C. 167, 337 SE 2d 551 (1985)  [Back]
(22) See Wisconsin v. Sorenson, in Footnote 6, supra, for a useful judicial statement on criteria helpful in making this sort of determination.  [Back]

State statutes which meet the apparent approval of Justice O'Connor are: Ala. Code Sec. 15-25-3 (Supp. 1987) (one-way closed circuit television; defendant must be in same room as witness; Ga. Code Ann. Sec. 17-8-55 (Supp. 1987) (same); N.Y. Crim. Proc. Law Secs. 65.00-65.30 (McKinney Supp. 1988) (two-way closed circuit television); Cal. Penal Code Ann. Sec. 1347 (West Supp. 1988) (same); Coy v. Iowa, supra, 868. [Alabama's and New York's statutes are reproduced in toto in the appendix].

Interestingly enough, one statute, which received at least partial, if not full, approval of Justice O'Connor, Mass. Gen. Laws Sec. 278:16D, was held by the Massachusetts Supreme Judicial Court to be violative of the defendant's confrontation rights under the Massachusetts Declaration of Rights. Commonwealth v. Bergstrom, 43 CrL 2278(1988).  In this case two children testified away from the courtroom but in the presence of the judge, the children's grandmother, the prosecutor, and defense counsel.  The defendant and the jury watched over closed circuit TV from the courtroom.

The state (as opposed to the federal) constitutional right of a defendant to "meet the witnesses against him face to face" means just what it says, the Court declared, rejecting the notion that an opportunity to cross-examine the witness is adequate.  Furthermore, a defendant also has a fundamental right to be present at all critical stages of the prosecution.  In view of these rights, the need to protect child witnesses from emotional trauma does not justify the separation of the defendant and the witnesses employed by the trial judge.  Another facet of confrontation that is implicated by this method, the Court added, is the need to have the jury personally view witnesses to assess their credibility.  The Court cited the poor quality of the transmissions in this case and the common problems that can arise in transmitting or videotaping that a televised version of a child witness' testimony is generally not equivalent to a personal appearance in court.  Also, the absence of the judge during the televised testimony could undermine the fairness of trial.  The Court also stressed that in a proper case, it would be inclined to allow the introduction of videotaped testimony of a child victim if the taping is done in the courtroom while the jury (and by implication spectators) has been excused, and is played back to the jury in the presence of the judge, the defendant, and counsel for both sides.  Another issue, not discussed by the court, arises in the context of the facts of Bergstrom.  Procedures which keep the defendant in the courtroom with the jury, while everyone else important is somewhere else may tend to unfairly stigmatize the defendant, labeling him someone who is so odious that he cannot even be allowed to be in the same room as the child-witness.  Such a procedure may violate not only the Confrontation Clause, but the defendant's rights to due process and equal protection of the laws.  [Back]

(24) A recent study reports that while going to court was stressful for children alleged to have been sexually abused, it was not clear that the only effective way of reducing their stress is to avoid "live" testimony.  The authors suggest that if simple changes were made in the justice system (reducing the number of continuances, the greater use of guardians ad litem for the children, providing adequate time to prepare the children for court and better training for judges and lawyers) the need for expansion of hearsay exceptions and closed circuit television would not be needed.  King, Hunter and Runyon, "Going to Court: The Experience of Child Victims of Interfamilial Sexual Abuse," 13 Journal of Health, Politics and Law 705 (1988)

* Paul F. Herzog is an Assistant Public Defender, Twelfth Judicial District Court, Cumberland County, Fayetteville, NC 28301, (919) 486-1251.  [Back]

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