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)
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
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
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.
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.
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
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
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
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
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
and trustworthiness) is the starting point for all confrontation/hearsay
analysis. Each prong deserves closer examination.
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 Roberts. State 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
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
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.
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
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.
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) and Existing
Emotional or Physical Condition (N.C.R.Evid. 803) and Statements Made For The Purposes of
Medical Diagnosis or Treatment (N.C.R.Evid. 803) will be held "firmly rooted" within the meaning
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.
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
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
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
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
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
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
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?
particular, are assessments of child abuse based on a child's play with
so-called "anatomically correct" dolls(7) indubitably accurate and
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
3. Reported uses of the "anatomically correct"
dolls show a disturbing ignorance of child psychology since it should be known
(a) young children are naturally curious, especially about
(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
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.
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
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
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
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
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);
DeLeonardo, 315 N.C. 507,340 SE 2d 350 (l986).(9)
A. Statement Made For Medical Diagnosis and
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
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
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,
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.
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.
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
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.
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.
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).
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
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
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
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
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:
- Has proper notice been given?
- Is the hearsay not specifically covered elsewhere?
- Is the statement trustworthy?
- Is the statement material?
- Is the statement more probative on the issue than any
other evidence which the proponent can procure through reasonable efforts?
- Will the interests of justice be served by admission? Smith, supra,
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:
- assurance of personal knowledge of the declarant of
the underlying event.
- the declarant's motivation to speak the truth or
- whether the declarant ever recanted the testimony.
- 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
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
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
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.
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
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
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.
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
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.
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).