Hearsay Declarants Need Not Have Been
Competent to Testify, Washington Supreme Court Rules
The Washington Supreme Court has ruled that admitting a child’s hearsay at trial does not require finding the child was competent to testify when she or he spoke. State of Washington v. C.J., 63 P.3d 765, 2003 WL 252147 (Feb. 6, 2003). The court thus resolved a split among the divisions of the Washington Court of Appeals.
A 13-year-old girl was accused of molesting her cousin, a three-year-old boy. The morning after the girl babysat the boy, his mother noticed that the tip of his penis was swollen. When the mother asked him if his penis hurt, he said it did not and added that his cousin “rubbed it and made it feel better.” He made a gesture resembling masturbation. Soon after that, the boy volunteered that his cousin “wanted me to touch her potty and she wanted me to lick her potty, too.”
The boy later made similar statements and gestures during a police interview.
The boy testified at a hearing to determine his competence to testify at trial. The trial court found that he could not characterize the difference between true and false statements and could not express in words a memory of the incident in question. It therefore ruled him incompetent.
The court then considered the admissibility of his hearsay under Washington’s child hearsay statute, RCW 9A.44.120. It applied the nine factors enunciated in State of Washington v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984), to help courts determine whether child hearsay has sufficient indicia of reliability. The court ruled the hearsay admissible.
The girl was convicted, but the court of appeals reversed. It held that the hearsay was not admissible because the evidence did not show the boy was competent to testify at the time he made the statements.
By a 7-2 margin, the supreme court reversed the court of appeals and reinstated the conviction. The court said that the child hearsay statute’s plain language showed that the legislature did not intend to exclude hearsay merely because a child was not competent as a witness when he spoke it. “Had the legislature intended that requirement, it would have been included in the statutory language,” the court said.
The court said that the nine factors in the Ryan case are not the only factors a trial court may consider in deciding reliability of child hearsay. When, as here, there is evidence the child could not distinguish truth from lies at the time he spoke, this “may be considered as part of the totality of the circumstances indicating reliability.”
The supreme court also considered whether the hearsay in this case was
corroborated, as the statute requires when the child does not testify
at trial. It found corroboration in medical evidence. It also found
it in the child’s statements reflecting knowledge of particular sex acts,
knowledge for which the record showed no source other than the alleged
crime.
Copyright © 2003 David S. Marshall
