|
Admission
of Children's Statement
The Supreme
Court of Connecticut held that children’s out-of-court statements
were admissible under the residual exception to hearsay rule because
the information contained therein was “reasonably necessary.” Reasonable
necessity is met when the facts contained in the statement may be
lost because the speaker is either dead or otherwise unavailable
or because the assertion is of such a nature that evidence of the
same value cannot be obtained. The Court noted that a trial court
may properly conclude that a child is unavailable if there is competent
evidence that the child will suffer psychological harm from testifying.
The court
further laid out the procedure that must occur to determine if a
child is unavailable: if a party challenges the availability of
a child, an evidentiary hearing must be held to determine proof
of psychological harm. Finding that a child is “unavailable” requires
a finding that the child will suffer serious emotional or mental
harm if forced to testify. The evidence regarding harm must relate
to the subject child; a generalized presumption that testifying
is per se harmful will not provide an adequate basis for a finding
of unavailability.
Although
the trial court did not adhere to these particular procedures, the
Court held that the court appointed evaluator offered credible testimony
that the children would be harmed by testifying. Finally, the Court
held that the admission of the children’s statements did not violate
the respondent’s due process rights or her right to call and cross-examine
witnesses.
Note:
this case was decided prior to the effective date of the "tender
years" exception to the hearsay rule. (Evidence Code § 8-10). The
"tender years" rule, effective January 1, 2009, provides that a
statement of a child 12 years old and under is admissible if:
1. the
child is a victim
2. of
ANY sexual assault/misconduct or
3. physical
abuse that is committed by a parent/guardian or other person with
comparable authority
AND
1. the
court finds the statement is trustworthy;
2. statement
is not made in preparation of litigation
AND
3. child
testifies and is subject to cross either by appearance or video
OR
4. child
is unavailable BUT .. there is independent corroboration AND statement
made before arrest or juvenile proceedings commenced.
The new
rule allows statements to come in under other applicable hearsay
exceptions. However, the rule specifically prohibits courts from
“(1) applying broader definitions in other hearsay exceptions for
statements made by children … that they do for other declarants;
and (2) admitting by way of a residual hearsay exception [such statements].”
The commentary
to the rule explains that the rule was intended, in part, to “provide[]
more specific guidance for this category of statements than does
the residual exception.” The commentary also emphasizes that the
rule “prohibits the use of the residual exception for statements
treated by this section.”
A further
note:
The rule
appears to limit the opportunities for admission of children’s statements
regarding alleged acts of physical and sexual abuse. However, be
aware that Connecticut General Statute § 46b-129(g) specifically
provides that during a contested OTC hearing, “credible hearsay
evidence regarding statements of a child to a mandated reporter
or to a parent” may be admissible “upon a finding that the statement
is reliable and trustworthy and that admission of such statement
is reasonably necessary.” Additionally, an affidavit provided by
a mandated reporter may be admitted as well during the contested
OTC hearing without the need for the reporter to appear unless called
by the respondent or child provided the statement:
1. was
provided at the preliminary hearing;
2. reasonably
describes the qualifications of the reporter and the nature of his
contact with the child; and
3. contains
only the direct observations of the reporter and statements made
to the reporter that would be admissible if the reporter were to
testify to them in court and any opinions reasonably based thereupon.
|
