In re Tayler F.

Connecticut Supreme Court

June 8, 2010

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.

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