Comparative Analysis of Nine Recent State Statutory Approaches Concerning Special Hearsay Exceptions for Children's Out-of-Court Statements Concerning Sexual Abuse With Emphasis on What Constitutes Unavailability and Indicia of Reliability under Ohio v. Roberts and Other Decisions (From Papers From

• NCJ Number: 107179
• Author(s): G J Pierron
• Date Published: 1985
• Length: 22 pages
• Sale Source: National Institute of Justice/; NCJRS Photocopy Services
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America
• Note: For microfiche, see NCJ-107173.

Annotation

This paper reviews recent State legislation modifying evidentiary restrictions on the admissibility of victims' hearsay statements in child sexual abuse cases, with particular emphasis on unavailability and reliability.

Abstract

Cases establishing allowance of hearsay into evidence in child sexual abuse cases provided there is sufficient indicia of reliability are reviewed. In Ohio v. State (1979), the U.S. Supreme Court established guidelines for consideration when evaluating whether particular statutes allowing hearsay exceptions provide constitutional protection afforded to accused persons. Statements made by an abused child to a police officer immediately after assault were ruled admissible with sufficient indicia of reliability in United States v. Iron Shell (1980) under the excited utterance exception. In United States v. Nick (1979), a physician's testimony about the victim's assault were admissible hearsay and the victim was deemed too young to testify. Two types of unavailability most often seen in child sexual abuse cases, physical and testimonial unavailability, are reviewed. Physical unavailability involves the child's incompetency to take oath, be understood by the court, or fully remember events. Testimonial unavailability involves the trauma likely if the child is subjected to full court testimony. In People v. Stritzinger (1983), the California Supreme Court established that witness unavailability due to emotional trauma must be verified by expert testimony. Although child sexual abuse victims statements are usually seen as inherently reliable because of inability to fabricate something beyond the realm of experience, the paper recommends considering the child's age and maturity, the nature of the statement and circumstances under which it was made, and any reasons for false statements in testing reliability. Recent legislation in Washington, Kansas, Illinois, Minnesota, South Dakota, Indiana, Colorado, Iowa, and Utah regarding unavailability and reliability are discussed, with the Kansas approach to admissibility of hearsay statements advocated because corroboration is not required. 35 references.