Child's Hearsay Rejected
Because He Was Not Competent To Testify
If a child is not competent to testify at trial, his hearsay statements may be admitted only after a showing that, when he made those statements, he could comprehend and truthfully relate the events described in them. So saying, Division Three of the Washington Court of Appeals has reversed a child molestation conviction in State v. C.J., Docket No. 19558-9-III, 32 P.3d 1051 (10/18/01).
The decision follows State v. Karpenski, 94 Wn. App. 80, 971 P.2d 553 (1999), a Division Two case, and rejects State v. Gribble, 60 Wn. App. 374, 804 P.2d 634 (1991), a Division One case.
Karpenski reasoned that any statement from a person who lacked testimonial competence was not reliable and so should not be admitted. Gribble ruled that if a court found a statement possessed the "sufficient indicia of reliability" required by Washington's child hearsay statute, RCW 9A.44.120, the court need not separately consider whether the child had testimonial competence when he spoke.
In State v. C.J., the trial court found the four-year-old child not competent to testify at trial because he could not tell the difference between a true statement and a false one and he could not express a memory of the event in words. The trial court did not consider whether the child had been similarly limited as a witness when he described the event out of court, at age three. The appeals court therefore ruled that the child's hearsay should not have been admitted.
Copyright © 2003 David S. Marshall
