A Child's Word: Getting Out of Court Hearsay Statements Heard in Court

Allie Phillips
Senior Attorney
APRI's National Child Protection Training Center
99 Canal Center Plaza, Suite
510 Alexandria, VA 22314
703.518.4385
www.ndaa-apri.org

HEARSAY: WHAT DOES IT HAVE TO DO WITH ME?

HEARSAY: WHAT IS IT?

A Statement:

Out of Court defined: Not made by the declarant/witness while testifying

Offered to prove the truth of the matter asserted: What is the purpose for offering the statement at trial?

3-5

NOT HEARSAY

WHY IS HEARSAY SO VALUABLE?

Hearsay is not admissible unless the requirements of one of the hearsay exceptions is satisfied: Firmly-rooted hearsay exceptions that have been deemed reliable

  1. EXCITED UTTERANCE - "A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."
  2. STATE OF MIND - "A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health) but not including a statement of memory or belief to prove the fact remembered or believed..."
  3. STATEMENTS FOR MEDICAL DIAGNOSIS - " Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment."
  4. PRESENT SENSE IMPRESSION - "A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter."
  5. Tender Years Statements

WHEN YOU HIT A BRICK WALL: Catch-all/residual hearsay exception

Crawford v Washington

Analyzing your case in light of Crawford

What are testimonial statements?

6

Some firmly rooted exceptions that have not been impacted by Crawford yet

Child Abuse after Crawford: Distinguishable factors to consider:

Forfeiture of Confrontation Right

What is the moral of the story?

7-17

Hearsay and the Child Victim: Getting out of Court Statements In to Court

Victor I. Vieth
Senior Attorney
APRI's National Center for Prosecution of Child Abuse
99 Canal Center Plaza
Suite 510
Alexandria, VA 22314
703-739-0321
703-549-6259 (fax)
E-mail: victor.vieth@NDAA-APRI.org

  1. In many cases, a prosecutor needs hearsay evidence in order to obtain a conviction.

    According to the National Center for prosecution of Child Abuse, "hearsay evidence can mean the difference between conviction and acquittal." investigation and prosecution of Child Abuse, Second Edition at 12. Consider the following scenarios:

    1. If a victim is unable to testify, a hearsay statement may be the only evidence to establish the corpus delecti of the crime, thus allowing admission of the defendant's confession.
    2. If the victim is available to testify but has recanted, the case may be lost unless the child's out of court statements alleging abuse can be admitted as substantive evidence. See generally, Mary-Ann R. Burkhart, "I take it back": When a Child Recants, 12 Update, Number 3 (APRI 1999).
    3. In many cases, the child's original statements contain displays of emotion or word choices that may be more powerful and believable than a child's courtroom testimony. This is why some jurisdictions videotape their interviews and seek to admit the tapes in court. As one commentator notes:

      Videotapes often capture powerful emotions which would otherwise be lost. I recall an interview in which a child described being tossed across the room with sufficient force to break her collar bone. In describing the assault, the child took a Barbie doll and flung it across the room. In another interview a boy assaulted with a belt was asked to describe the weapon. The boy lifted up his shirt and pointed to his own belt, indicating the assailant used the boy's belt. In another interview, a child describing the licking of her assailant's anus wrinkled her face and commented on the smell. Unsolicited actions and expressions such as these can be powerful evidence in convincing a jury the child actually experienced abuse. Victor I. Vieth, When Cameras Roll: The Danger of Videotaping Child Abuse Victims Before the Legal System is Competent to Assess Children's Statements, 7(4) Journal of Child Sexual Abuse 113,120 (1999).

      Of course, an investigator could testify as to some of these emotions and behaviors without admitting into evidence the child's out of court statements. Nonetheless, the power of the conduct is often best evaluated in the context of the words the child is uttering.

    4. Admitting hearsay statements reduces the importance of the child's testimony. If defense counsel knows the child's allegations of abuse will be admitted into evidence even if the child recants on the witness stand or refuses to testify, the attorney cannot focus all his ammunition on challenging the child's credibility during cross-examination.
    5. In civil cases, some jurisdictions allow "reliable" hearsay statements to be admitted in lieu of the child's testimony. See e.g., MlNN. STAT. section 260.156.
  2. The Process of Getting an Out of Court Statement Admitted begins during the investigation
    1. Prosecutors must have a thorough knowledge of the rules of evidence and must pass this knowledge on to police officers, social workers, physicians, and others who play a role in collecting evidence for the case. If an investigator understands what an excited utterance is, the officer will make sure the police report documents all the circumstances surrounding the statement which make it an excited utterance. If an investigator understands that in order for a statement to qualify as a present sense impression the time between the statement and the underlying event must be as short as possible, the investigator will not delay the interview of the victim or witness. If the investigator understands that in order to get a statement admitted under the "catch all" exception to the hearsay rule, courts consider factors such as idiosyncratic detail (smell, tastes, etc), the investigator will be sure to ask questions eliciting this information. If a social worker understands the basis for admitting her case notes into evidence as a business records exception, she is more likely to create records which meet this exception to the hearsay rule.
    2. Teach officers the importance of knowledge. According to a rural child protection worker, "many social workers fail to gather substantive evidence because they are ignorant about hearsay and other rules of evidence." Simoine Bolin, Which Way to Delton Township? Working as a Child Protection Worker in Rural America, 11 Update, Number 11 (1998).
  3. Out of court statement considerations

    The process of admitting an out of court statement into evidence involves the asking of at least four questions:

    1. Do I want the statement admitted? As noted at the outset, success or failure of a given prosecution may turn on the admissibility of a hearsay statement. Even if this is not the case, many out of court statements are so powerful a prosecutor will want to admit them. On the other hand, some statements may be dangerous to admit. For instance, admitting a child's statement made in response to questions from a mother may allow the defense to introduce memory and suggestibility research to show the allegations were "planted" in the child's mind. See generally, Brian K. Holmgren, Expert Testimony on Children's Suggestibility: Should it be Admitted? 10 APS AC Advisor 10 (Summer 1997).
    2. Is the statement hearsay? Not all out of court statements are hearsay. This issue is discussed more fully below.
    3. If the statement is hearsay, does it fall under a "firmly rooted" exception to the hearsay rule? If it falls within a firmly rooted exception, such as the medical diagnosis exception to the hearsay rule, the statement is admissible even if the child does not testify.
    4. If not admissible under a "firmly rooted" hearsay exception, is the statement "reliable" on its face? Many jurisdictions will admit a child's statement into evidence under the "catch all" exception to the hearsay rule or under a statutory hearsay exception. In order to pass Constitutional muster, however, the statement must be deemed "reliable." This issue is also explored more fully below.
  4. Hearsay
    1. Definition. As defined by the Federal Rules of Evidence, "hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing offered in evidence to prove the truth of the matter asserted." Fed. R. Evid. 801(c). This is also the common law definition.
    2. Statements which are NOT hearsay
      1. Statements which are not assertions. A child's out of court words do not constitute a statement unless they are (1) an oral or written assertion or (2) nonverbal conduct of a person that is intended by the person as an assertion. Fed. R. Evid. 801(a). The rules do not define an assertion. Although some commentators suggest that questions or orders (e.g. a child yelling "Stop it!") are not assertions, it is unwise to place "undue emphasis on grammatical structure." John E.B. Myers, Evidence in Child Abuse and Neglect Cases , Third Edition, section 7.2 (1997). When, then, is a statement not an assertion? I had a case where a child screamed when he saw a woman resembling the caretaker who had beaten him. Reflexive behavior such as this may not be an assertion. A child abuse victim's nightmare in which he announces his father's misdeeds may not be an assertion.
      2. Who has the burden of proving an assertion? According to the committee comments: "The rule is so worded as to place the burden upon the party claiming that the intention existed; ambiguous and doubtful cases will be resolved against him and in favor of admissibility." Fed. R. Evid. 801(a) advisory committee note. If a prosecutor offers a child's sexualized play as evidence, claiming the play is not an assertion, the defense attorney attempting to keep the play out of evidence would likely have the burden of proof to establish the conduct is indeed an assertion.
      3. Statements not offered for the truth of the matter asserted. When a child's statement is not offered for the truth of the matter asserted, it may not constitute hearsay. For example, I once prosecuted a foster mother who beat to the point of death a boy who was in her care. While living with his father in another state, the boy was in a car pulling up to a drive-through window at McDonald's. The boy saw the woman in the window, began to sweat, and slid as far away as possible from the woman. The boy's father asked the child what was wrong. The child responded "That's Connie." Connie is the name of the woman accused of beating the boy. Is this statement hearsay? Arguably not. We did not offer the statement to prove the truth of the matter asserted, i.e that the woman in McDonald's was Connie. Instead, we offered it to show the child's extreme fear of the defendant. We maintained the fear was consistent with being a victim of child abuse. If a child plays with dolls in a sexually explicit manner, is this conduct hearsay? If the play is deemed a statement (see discussion of assertions, supra) and the play is offered to show that the defendant is guilty, the play is hearsay. If, however, the play is offered to show the child has unusual sexual knowledge for her age, the statement is not hearsay.
      4. Prior consistent statement made by a witness when the witness' credibility is attacked. If a child abuse victim testifies at trial, the prosecutor may offer into evidence a prior statement consistent with the child's testimony so long as the statement is offered to "rebut an express or implied charge... of recent fabrication or improper influence or motive." FRE 801(d)(2). What if the prior statement is consistent with the trial testimony but is less detailed? According to Professor Myers, "many children disclose sexual abuse progressively over time, gradually revealing more detail. Thus, a child's trial testimony may contain more information than early disclosures. If the child's initial disclosure is consistent with — albeit less detailed than — the child's trial testimony, the out of court statement is usually considered consistent." myers, supra at section 7.22, citing United States v. Red Feather, 865 F.2d 169 (8th Cir. 1989). When does defense counsel raise the scepter of "recent fabrication"? This may be done on cross-examination when defense counsel claims bias, coaching, or some other basis for fabricating abuse. Id. Must the prior statement be uttered before the improper influence or motive to fabricate develops? The majority rule requires the prior statement to be spoken before the motive or pressure to fabricate arises. Myers at section 7.24. The U.S. Supreme Court has followed the majority rule in interpreting the federal rules of evidence. Tome v. United States, 513 U.S. 150 (1995). Some commentators reject the "wooden" majority rule approved of in Tome. According to Professor Myers, a "child's ability to maintain a consistent description of abuse over time is a hallmark of trustworthiness." myers at 7.24. Alaska is one state which has rejected the majority rule. Nitz v. State, 720 P.2d 55 (Alaska Ct. App. 1986). The Nitz court would evaluate the relevance of prior consistent statements on a case by case basis. The timing of the prior statement would be only one factor to consider.
      5. Admission by party opponent. Obviously, an admission of a party opponent is not hearsay. Accordingly, all lawfully obtained statements of the defendant are admissible evidence. Keep in mind this applies not only to statements the defendant has uttered but statements of which the defendant has "manifested an adoption or belief in its truth." FRE 801(d)(2). If a defendant acknowledges a belief in a child's allegation of abuse, the acknowledgment and the underlying statement should be admissible evidence. For example, the defendant writes the child a letter and says "I know you told the police the truth but I'm asking you to recant to spare me the pain of prison." The defendant's letter, and the child's statement to the police should be admissible as an admission of a party opponent.
    3. Hearsay exceptions (availability of declarant immaterial)
      1. Excited utterance. An excited utterance is "a statement relating to a startling event or condition made while the declarant was perceiving the event or condition or immediately thereafter." FRE 803(2).
      2. Excited utterance questions: Is child abuse a startling event? Some acts of child abuse, such as a brutal attack, would almost certainly be startling. This may not, however, be true of all acts of sexual abuse. The sexual touching may take the form of giving the child a seemingly innocent back rub or bath and the child may not understand the touching of the genitals is for the sexual gratification of the caretaker. Even if the first act of sexual abuse was startling, subsequent acts may not be. As Professor Myers notes, "a child who has been sexually abused for years may consider the latest incident just another in a long series. If the child discloses the latest incident, it is unlikely the child's statement is an excited utterance." myers, supra at 7.33. See e.g. U.S. v. Lyons, 33 MJ 543 (A.C.M.R. 1991). How much time has elapsed between the startling event and the child's statement? Evidence of lapsed time is relevant because "the longer the delay between a startling event and an out-of-court statement, the less likely the declarant was excited when the statement was made." Myers, supra at 7.33. Courts recognize, however, that children may be excited longer by a startling event and thus have allowed admission of statements made several hours after an event. U.S. v. Miller, 32 MJ 843, 851 (N-M.C.M.R. 1991) (18 hour delay in making statement nonetheless was deemed admissible as excited utterance); State v. Moats, 457 N.W.2d 299, 309-10 (Wis. 1990) (five year old's statements made within a week after perpetrator left home were nonetheless excited utterances). Some scholars suggest we should focus less on the time elapsed between the event and the statement and focus more on the first real opportunity the child has to disclose the abuse. Michelle Zehnder, A Step Forward: Rule 803(25), A New Approach to Child Hearsay Statements, 20 william mitchell L. Rev. 875, 907 (1994). A large number of decisions approve the "first safe opportunity" doctrine provided there is some evidence the child remains excited by the event. See e.g. U.S. v. Rivera, 43 F.3d 1291 (9th Cir. 1995). How do you show a child is "excited" by the event? Crying, shaking, wincing with pain, hurried speech, curling up in a ball, etc. may be indicators of excitement. As one scholar notes, however, "an unemotional reaction may itself be a manifestation of stress" and the "reaction of a child should be analyzed in terms of a child's, rather than an adult's emotional reaction." Zehnder, supra at 907-908. Does your jurisdiction allow "rekindled excitement"? An exciting event may be followed by a period of calm and then something happens to again trigger the excitement of the event. Professor Myers gives an example of a child who is kidnapped, assaulted, and released. Several days later, the child is asked to pick the assailant out of a lineup. The stress of seeing the attacker triggers the child's excitement as he screams "that's him!" Myers supra at 7.33. A number of cases suggest a "rekindled excitement" can constitute an excited utterance. See e.g. Bayne v. State, 632 A.2d 476 (1993). In one case, the rekindled excitement takes place after a child views a good touch, bad touch film. State v. Lindner, 419 N.W.2d 352, 356 (Wis. Ct. App. 1987).
      3. Present sense impression. A present sense impression is "a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." FRE 803(1).
      4. Present sense impression questions. Did the declarant perceive the event or condition? Perception can be through seeing, hearing, feeling, smelling, or otherwise experiencing the event through the senses. The event does not have to be startling and the witness does not have to be a participant to the event. For instance, a child who witnesses the abuse of a sibling has perceived the event. Was the statement made while perceiving the event or condition or immediately thereafter? A statement made during the event obviously meets this test as would a statement made only moments after an event. Longer delays, however, are problematic. Some scholars contend that the present sense impression exception rarely applies to a case of child abuse. Professor Myers suggests "there is little likelihood a child's contemporaneous statements will be overheard by anyone but the perpetrator, and if the child later reveals what happened, the time interval is usually too long to satisfy the exception." MYERS, supra at 7.31. This view of the rule, however, may be too narrow. A sibling who witnesses acts of abuse, may recall statements a brother or sister made during the terror. A mother may testify to statements her children made as they watched Dad beat Mom. Again, if officers know the rules of evidence, they can investigate for the possibility of these scenarios.
      5. Statements made for medical diagnosis. According to the federal rules, a further exception to the hearsay rule applies to "statements made for purposes of medical diagnosis or treatment and describing medical history or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." FRE 803(4).
      6. Medical diagnosis questions. What if the child doesn't understand the importance of being truthful to the doctor? A number of courts refuse to apply the medical diagnosis exception to a young child's statements to a doctor. This is because a young child may not know who a doctor is or what purpose a doctor serves and, therefore, does not have a "selfish" motive to be truthful to a physician. Zhender, supra at 911. As an example, consider the case of Ring v. Erickson, 983 F.2d 818 (8th Cir. 1993). In Ring, the 8th circuit reversed a conviction and said the record did not establish that the three year old victim understood she was speaking to a doctor and the importance of being truthful to a physician. When taking a child to a doctor for a medical examination, we must be sure the doctor identifies herself to the child as a physician and explains the importance of telling the truth to the doctor. It can be as simple as "I'm a doctor. My job is to check your body to make sure your body is ok. Your job is to tell me if anything happened to your body." If a doctor fails to do this, a prosecutor may still be able to get a child's statement admitted under the medical diagnosis exception but will need a parent or someone else to lay the foundation that the child understood the job of a doctor. For older children, their age alone may be enough to satisfy this requirement. State v. Longren, 505 N.W.2d 349 (Minn. Ct. App. 1993). Is the description of abuse pertinent to the diagnosis or treatment? Some defense attorneys argue that a child's description of pain or other symptoms may be relevant to diagnosis but the child's actual description of abuse is not. For the most part, courts reject this argument. See e.g. Turner v. State, 924 S.W.2d 180 (Tex. Ct. App. 1996). Some facts about the abuse, however, may not be relevant to diagnosis or treatment. In one case, for example, the act of sexual abuse was relevant to diagnosis or treatment but the court held the fact the abuse took place at gunpoint was not .pertinent. Conley v. State, 620 So.2d 180 (Fla. 1993). Perhaps, though, the matter of the gun was relevant to the need to address the psychological trauma the child endured. Is identity of the perpetrator pertinent to diagnosis or treatment of the child abuse victim? Traditionally the rule allows the admission of the cause of injury but not matters of fault. A patient's statements that she was hit by a car may be relevant to diagnosis but not her statement the car went through a red light. In child abuse cases, however, "most courts hold that children's statements identifying the perpetrator are sometimes pertinent to diagnosis or treatment, and admissible under this exception." MYERS, supra at 7.39. See e.g. Guam v. Ignacio, 10 F.3d 608, 613 (9th Cir. 1993). Although a minority of states hold otherwise, Professor Myers says the majority has the better argument: "Treatment of child abuse includes removing the child from the abusive setting, and, to this end, the doctor often needs to know the identity of the perpetrator." Id. Some courts say it will be dealt with on a case by case basis and that "if a foundation is presented which establishes that the identity of the perpetrator was necessary for diagnosis or treatment.. .such a statement may be admitted under the rule...(a) proper foundation is essential, however, and the simple fact that the statement was made to a doctor or other medical personnel during treatment does not justify admission." Stephens v. Wyoming, 11A P.2d 60 (1989). What if child is pre or non verbal and history is given to the doctor by a parent? In one case, a 13 year old child was partially blind and unable to communicate except through her mother. The mother walked in on the child and observed the child being abused sexually. The court said the mother's statements to the nurse as to what she observed can fit under the medical diagnosis exception because "it was reasonably pertinent to the victim's diagnosis and treatment to know the details surrounding the incident for which the victim was being examined." Lovejoy v. United States, 92 F.3d 628, 632 (8th Cir. 1996). What if the statement is to a hospital receptionist? According to the advisory committee comments: "Under the exception the statement need not have been made to a physician. Statements to hospital attendants, ambulance drivers, or even members of the family might be included." FRE 803(4), Advisory Committee Comments. What about psychological treatment? The rule may apply to psychological care. However, it may be more difficult for the prosecutor to establish the child understood the need to be truthful to a psychiatrist or psychologist. Accordingly, we need to teach psychologists to create case notes or other records that document they explained their role to the child and the importance of being truthful.
      7. State of mind. Under the federal rules, a hearsay exception applies to "a statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health) but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will." FRE 803(3). A child's statements or her drawings showing love for the perpetrator may be relevant to show she has no incentive to lie and to rebut defense counsel's claim the child fabricated abuse as retaliation for parental discipline. A mother's statement to a child "I don't believe you" may be relevant to show the mother's lack of support. This evidence may be helpful in a recantation case. See Investigation and Prosecution of Child Abuse, Second Edition 351-352.
      8. State of mind considerations. The statement must be a then-existing state of mind ("my private parts really hurt" vs. "my private parts really hurt yesterday.")
      9. When you hit a brick wall. When a child's out of court statement strikes you as reliable but does not fit neatly within one of the firmly rooted exceptions to the hearsay rule, a prosecutor may be able to admit the statement under his state's hearsay exception statute. Thirty-three states have a law allowing statements of a young child to be admitted into evidence provided the court finds the statement to be "reliable." Most states also require the child to testify or be unavailable to testify. See Child Abuse and Neglect state Statutes Series 1998, Volume IV, Child Witnesses, Number 23, Child Hearsay Exceptions (National Clearinghouse on Child Abuse and Neglect Information and National Center for Prosecution of Child Abuse). A prosecutor may also be able to admit the statement under the "catch-all exception" to the hearsay rule. This rule provides:

        A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant. FRE 807.

        1. Idaho v. Wright, 497 U.S. 805 (1990). Whether a prosecutor seeks to admit a hearsay statement under the "catch all" exception or under a statutory exception, the prosecutor must be aware of the U.S. Supreme Court decision in Idaho v. Wright. In this case, the court noted a defendant has a 6th amendment right to confront witnesses against him. The court observed that most exceptions to the hearsay rule, such as the medical diagnosis exception, are "firmly rooted" and inherently contain indicia of reliability. The court said this may not necessarily be the case when a statement is considered under the "catch all" exception to the hearsay rule. Nonetheless, the court said a child's hearsay statement may be admissible under the residual exception to the hearsay rule if the statement is found to be "reliable." Reliability is based on the "totality of the circumstances." When examining the totality of the circumstances, "the relevant circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief." Accordingly, corroborative evidence may not be considered in determining the reliability of the child's statement.
        2. Escape clauses from Idaho v. Wright. The case is rooted in a defendant's 6th amendment right of confrontation. If a child will testify, and be available for cross-examination, some courts allow corroborative evidence to be considered in ruling on admissibility. See United States v. Grant, 42 mj 340, 344 (CAAF 1995). Also, the 6th amendment does not apply to jv court dependency proceedings. Myers, supra at 7.50. Although parents retain their due process right to confront accusatory witnesses, "confrontation rights under the Due Process Clause are not as extensive as rights guaranteed by the Sixth Amendment. In juvenile court dependency proceedings, corroborative evidence that cannot be considered in criminal litigation should be admissible to assess the reliability of children's hearsay statements offered under residual exceptions." myers, supra at 7.50.
        3. Factors indicating reliability. A number of cases around the country identify various factors that may show a statement is "reliable." These factors are not exclusive and a prosecutor should feel free to argue unique characteristics of your case which make the child's statements reliable. Factors may include:
        4. Videotaped statement. Though not required, the U.S. Supreme Court has said videotaping "may well enhance the reliability of out of court statements of children regarding sexual abuse." Idaho v. Wright, 497 U.S. at 819. The Iowa Supreme Court has said "the videotape is more reliable than many other forms of hearsay because the trier of fact could observe for itself how the questions were asked, what the declarant said, and the declarant's demeanor." State v. Rojas, 524 N.W.2d 659, 663 (Iowa 1994).
        5. Consistent statements. When a child makes several statements about abuse, and the statements are consistent, this may enhance the reliability of each statement. In a physical abuse case, the 8th Circuit said, "the fact that (the victim) made such a statement separately to the two school officials and later made similar statements to Chaussee and Agent Hellekson in our view enhances the (victim's) credibility." United States v. Cree, 778 F.2d 474 n. 5 (8th Cir. 1985).
        6. Display of emotion when statement is made. A statement from a child displaying fear, sadness, or other emotions may be deemed more reliable. This again emphasizes the importance of investigators documenting physical expressions, behaviors, body postures, speech patterns, etc. Keep in mind that all children are different and many abuse victims will not display any particular pattern of emotions.
        7. Other "reliability" factors:
          • Play and gestures during disclosures. I had a case where a child was describing how her father tossed her across the room, breaking the child's collar bone. The child spontaneously took her Barbie doll and flung it across the room forcefully. The child said "that's what daddy did to me."
          • Developmentally unusual sexual knowledge. Young children lack the experience to fabricate sexual abuse. A child may be exposed to sexual acts on cable TV such as a dress falling to the floor or couples kissing, but a child will not likely be exposed to explicit sexual acts. Accordingly, developmentally unusual knowledge is consistent with a child being abused.
          • Child appropriate terminology. Does the child describe the abuse in words appropriate for her age? For instance, a child may describe semen as "that sticky white stuff."
          • Idiosyncratic detail. Does the child provide information as to smell, taste, texture, etc? Arguably, these details could only come from someone who experienced the abuse. This is also why it may be important for investigators to ask questions such as "what did the white stuff taste like?"
          • Statement against interest. If it's obvious that the statement is against the child's best interests, this fact may make the statement reliable. For instance, a child may say to the school teacher, "please don't tell, I'll get into trouble."
          • Absence of motive to fabricate. If the child has no motive to lie, this fact enhances the reliability of the statement. This is why investigators must look for evidence documenting the child's feelings for the suspect. If the child has drawn pictures expressing love for the suspect, these pictures can be powerful evidence to establish the child is not out to get the suspect.
          • Child disagrees or corrects interviewer. If a child corrects the interviewer, this may show he or she is not unduly suggestible and is willing to correct any false assumptions of the investigator. For instance, if the investigator says the child is eight years old and the child corrects the investigator and points out she is seven years old, this indicates she is not unduly suggestible.
          • All or part of the child's statement is a "spontaneous response." "(A)ny statements made that are not the result of leading or suggestive questions are spontaneous." In re. Dependency of SS, 814P.2d 204,210(1991).

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2004 American Prosecutors Research Institute