*2 HOFFMAN, CAVANAUGH, and JJ. Before OLSZEWSKI CAVANAUGH, Judge: of sentence judgment from a appeals
Edward Haber Pleas of him the Court of Common against by entered of one by jury convicted County. Appellant was Monroe a minor and indecent assault. corruption count each alia, trial court committed revers- that the alleges, He inter testimony of the mothers admitting error ible agree. We alleged victims. two of 1982 one of early summer spring In the late four and one- victims, Leigh-Manuel, Darrell then alleged Predmore, Jaclyn that he and old, told his mother half years sexually had abused neighbor, old been year a five mother mother. appellant. Jaclyn’s Darrell’s contacted The two then their and con- mothers interviewed children police. Through tacted information obtained from mothers, and police eventually children their arrested crimes. charged appellant with the above-stated hung tried twice. The first trial ended in a Appellant was trial ended in his conviction. jury. second trial, the held a judge competency Prior to the first trial that hearing, as a result of which he ruled Darrell was matters, to all could competent testify Jaclyn as but identity person questioned concerning not be alleged she had molested her. She was allowed whom molestation testify about the itself. trial Mrs. Predmore testified Leigh-Manuel
At Mrs. children. length to the stories told them their physi- Their included statements about what was *3 children, the identity done to the and as to cally This crucial to the Com- alleged testimony molester. the of the children testimony monwealth’s case because to monosyllabic of answers mostly themselves consisted questions, repeatedly and both children stated leading hap- were to details about what they unable remember no to the events eyewitnesses There other pened. were to mothers. reported that the children their of Mrs. testimony Leigh-Manuel It is that the clear to their children told them was Mrs. as what and Predmore that were it related out-of-court assertions hearsay, since truth. Thus it was inadmissible prove to their offered The to the rule. exception hearsay it fit an unless within the the courts to allow exception commonly by most used abuse regarding statements sexual admission of a child’s declaration, exception. utterance or excited spontaneous the exception, the statement in order to fall under this But as to under the spontaneously so be must have been made event, so as to preclude by excitement caused of fabrication. possibility is no evidence that statements of the children
There caused an by made under the stress of excitement were condition, or required. contrary, event as is On exciting relevant assertion comment made Darrell the first was.a Darrell’s during a conversation between older brother and during his mother. The other assertions were made inter- Also, their children. views conducted mothers with of length delay does not disclose the between the the record to criminal and childrens’ assertions their alleged acts exception excited cannot mothers. utterance be Clearly Leigh-Manuel of hearsay testimony used Mrs. qualify Kasko, Commonwealth See and Mrs. Predmore. (1983). 469 A.2d Pa.Super. Mrs. Leigh-Manuel of Mrs. Pred exception any hearsay
more does come within The Common Pennsylvania. rule that is recognized wealth, however, us create a asks now to new rule the out-of-court assertions children hearsay pertaining to sexual abuse. evidence, adoption of a rule of considering the new
When enlightening jurisdictions what other it is often review the matter. legal see how scholars view have done years, In the federal courts and 33 states have the last culminating of their rules evidence conducted studies 34 codifications includes their codification. Each these to 35 excep- Each of them delineates 25 hearsay rule. an excep- of them includes rule. None tions to children, whether assertions tion for the out-of-court else. activity anything to sexual relating *4 17th) (Pennsylvania is In the other 16 states develop- as a of common law rule is matter hearsay applied courts in these states None of the ment the courts. by for the out-of- hearsay to the rule exception has an created of children.1 court assertions legislatures a impressed in handful the fact that
1. We are not permit the state to introduce enacted statutes that states have It is for child abuse cases. hard of children in assertions out-of-court a reelection, against vote periodially legislator, who run must on Uniform of Commissioners The National Conference Rules of adopted has what it calls “Uniform Laws State version, in adopted which was current Evidence.” thereto, rule, exceptions and hearsay contains It does not hearsay. to the definition of exceptions two assertions of chil- exception an for the out-of-court include dren. on Evidence there is Wigmore
In twelve volumes of hearsay to the rule for the recognition exception of an no is not exception Such an assertions of children. out-of-court Evidence, in in or McCormick on Jones on recognized Evidence, or in Binder’s Handbook. Hearsay is that is too hearsay for the rule hearsay
The rationale Excep- trier of fact. considered untrustworthy be fashioned to accommo- to the rule have been hearsay tions more substantially classes of that are hearsay date certain excep- in and thus merit general, than trustworthy hearsay Binder, The Hand- hearsay Hearsay tion to the rule. See (Second Edition), and Introduction to Chapter Three book Part II. assertions of do not the out-of-court
We believe children, children, old are particularly year four and five the out-of-court asser- trustworthy more than substantially upon no experience Life furnishes basis tions of adults. any special children have fairly can conclude that which we accurate being dependably render them as qualities which Therefore, of children such assertions reporters. historical hearsay rule. do not merit rule, rules, have a Evidentiary including us that trials con- taught has Experience d’etre. raison increase the likelihood such rules ducted accordance with persons accused of it easier to convict proposed statute that makes abuse, opponent danger opportunistic that an because of the being interpret soft may such a vote as unsophisticated electorate an Politically, particular. general, or soft on child-abusers crime in on legislator vote in favor of such a thing to do is to for a the safest merits, statute, courts to deal with regardless leave it to the of its of its enactment. the ramifications *5 of just of fair and resolution of the issues the trier a Otherwise, the lot of them. jettison fact. we would course, true, of permitting It is Commonwealth against to introduce the out-of-court assertions of children make it easier to the defendant in a child abuse case would it make it guilty. Unfortunately, would also convict If a is accept- to convict the innocent. such trade-off easier entirely not rule when the able, why suspend hearsay in introduces a criminal case? Commonwealth evidence alike, defendants, and innocent undoubt- guilty More would The same result would obtain if we be convicted. edly coerced the Commonwealth to introduce confes- allowed sions.
However,
It
a
acceptable.
such a trade-off is
is
of
in
that one
precept
Pennsylvania
fundamental
law
crime,
murder,
abuse,
keeping
it
charged with
be
nuisance,
in
presumption
of
public
comes
trial clothed
mind,
If
this
will
less tempted
innocence.
in
we
be
we bear
of evidence in favor
the Commonwealth
distort
law
rate. The Common-
order to increase
conviction
evidence,
by the same rules
wealth should be bound
rule,
litigants.
as other
including
compounded its error in
In this
the trial court
case
Leigh-Manuel
of Mrs.
admitting
hearsay testimony
Jaclyn Predmore could
Predmore
it ruled that
Mrs.
when
concerning
identifying
her accusation
questioned
not be
right
This violated defendant’s
as her molester.
defendant
him as
against
guaranteed by
to confront
witnesses
Constitution.
Amendment to the United States
Sixth
stand, had
Predmore,
on the
accused
while
Jaclyn
If
her, defendant’s
molesting
jury
defendant
front
adequately to cross-examine
fully and
right
constitutional
Alaska, 415 U.S.
Davis v.
apparent.
her
be
See
would
(1974), in
1109-10,
315-316,
39 L.Ed.2d
94 S.Ct.
Supreme
explained:
which the
Court
guarantees
the Constitution
Amendment to
The Sixth
"to be
prosecution
in a criminal
right
an accused
against
right
confronted with the witnesses
him.” This
in state as
secured for defendants
well as federal criminal
Texas,
under Pointer v
13 L
proceedings
US
Ed
*6
923,
(1965).
2d
Appellant did not receive a by him established the admission against The case was in contravention of well-established excludable evidentiary law. Pennsylvania allegations four additional
Appellant also makes identi The first raised involves the out-of-court point error. Leigh-Manuel. Appellant appellant fication of Darrell admitting testimony court erred argues lower identifi regarding the out-of-court given by police officer We cation, hearsay. inadmissible testimony as this was corroborative, it was that, testimony find since the was allow its the trial court to within the discretion of properly See, Dean, Pa.Super. admission. Commonwealth v. (1982). A.2d elicited as follows. testimony Initially, The relevant was Olsen, examination of Officer the Commonwealth on direct bring testimony array identifica- photo did not out Next, Leigh-Manuel Darrell testi- tion made the victim. fied, making appellant, an in-court identification both previous photo array identification. confirming redirect, questioned on Officer Olsen was Subsequently, identification. as to Darrell’s out-of-court and testified Therefore, clearly this corroborative evi- was previously opportunity counsel had the dence. Defense the out-of-court iden- regarding the declarant cross-examine The trial tification, prejudiced. therefore appellant admitting testimony. its court did not abuse discretion *7 Sanders, Pa.Super. 260 also, See Commonwealth v. (1978). 394 591 A.2d
Moreover, the recent reasoning does not run afoul of this Pa. Floyd, 508 supreme court decision of Commonwealth (1985) admissibility A.2d 816 which deals with 393, 498 third through testimony a identification prior a here, witness who made the unlike In party. Floyd, make an in-court identifi- did not out-of-court identification cation, therefore, was not corrobora- prior identification tive evidence. alleged competency error concerns
The second that the contends testify Appellant to at trial. the victims of the children admitting testimony in lower court erred at the time competence their inquiry into adequate without court’s first find that the lower trial. We of the second and, com no error was adequate consequently, inquiry was mitted. compe- that a second reasoned properly
The lower court
it
deter-
necessary
already
since had
was
tency hearing
During
testify.
to
of the children
competency
mined the
with
complied
correctly
the court
hearing,
competency
Pa.
McCoy, 397
forth in Rosche v.
the standard set
(1959)
A.2d 307
which lists the factors to be considered. To
competent,
be
a
must
a
youthful
capacity
witness
have
communicate,
an
including
ability
questions
to understand
answers;
express intelligent
and to frame and
mental ca-
occurrence;
pacity to observe and remember the
and a
Rosche, Id.,
consciousness of the
duty
speak the truth.
620-621,
The lower court did not err
its refusal to conduct a
hearing,
second
rather
its decision was well within the
Furthermore, appellant
discretion of the trial court.
proper
inaccurate
in his
safeguard against
testimony
right
had
impeach
testimony through
the children’s later
the record of
their statements at the first trial. See Zank v.
Penn
West
Co.,
(1951).
82 A.2d
Pa.Super.
Power
Appellant
argues
next
that the trial court erred
mistrial,
refusing to declare a
strike the
of Offi
Olsen,
give
precautionary
cer
instructions when
jury
disposed
it
determined that
the officer had
of his
contends that the officer’s
investigatory
Appellant
notes.
cross-examination,
him
prevented
denying
actions
effective
However,
a fair and
trial.
we find that under
impartial
York,
Pa.Super.
89 nonviolent; Child sexual abuse is predominantly to detect. as the secrecy only it occurs in with the child victim usually relative, the offender is a or an parent, witness. Often of of child abuser is acquaintance the child. Conviction or difficult due to the lack of witnesses corrobora- equally evidence, inability or the of the tive reluctance physical In the face of testify against defendant.2 victim to a overwhelming implicating defend- circumstantial evidence ant, the victims the courts are faced with the dilemma that or, testify during pas- found incompetent are often trial, the victims will sage of time between incident of coherently recall the details ability lose their event.3 states, recognition in several of our sister out of
Courts
crime,
proof
often
only
that
the statements
are
by sexually abused
have admitted out-of-court
statements
rule.
exceptions
under
traditional
children
application
have
of
The
courts
chosen
flexible
majority
rationale for
spontaneous
exception.4
declaration
study
reported
sexual abuse
to New
2. A
250 cases
1969
percent of
City’s protective
less than one
York
services showed
CIO,
Collins, supra, n.
col. 5.
resulted in conviction.
3
cases
are
problem that children who
3. We
sensitive to the related
are
testify
prepared
and uncon-
thoroughly to
tend to sound rehearsed
too
vincing.
denied,
Shell,
(8th Cir.1980), cert.
v.
Any extension
the time element of
a
exception:
spontane-
for the
justification
eviscerates
or
ous statement does not allow time for reflection
fabrica-
above, child
is peculiarly
tion. As noted
sexual abuse
due to
susceptible
prompt discovery
factors
evading
embarrassment,
ac-
of relatives
close
involvement
child’s memory.
and the
nature of a
quaintances,
evanescent
has
capacity
A child
not
to articulate what
may
have
Indeed,
himto
or her.
happened
may
know that
wrong.5
him
done to
or her is
has been
what
sponta-
the use of the
recently
has
considered
This Court
hearsay testimony
to admit
neous declaration
Kasko, In
Pa.Su-
child abuse cases.
Commonwealth
J.,
(1983)
Cavanaugh,
joined by
(per
A.2d 181
per.
Hoffman, J.),
and remanded
a defendant
reversed
where
we
the mothers of victims
testimony by
upon
was convicted
the children. The Court
as to statements
child abuse
excep-
spontaneous
declaration
rejected application
referred to the defendant’s activi-
tion where the statements
prior date.
had occurred on an unascertainable
ties which
“(w)hile
fixes no
the law
definite
recognized
The Court
must made to be received
statements
be
time within which
*11
no
in the
there must be
break
part
gestae,
as
of the res
afford time for
litigated
of the
acts which would
continuity
70,
The weakness of the declaration in on as the sole indicator of spontaneity lies its reliance delay report- of the length trustworthiness. Where ascertained, application spontaneous ing cannot be results. exception yield only can inconsistent declaration Comment, Hearsay Comprehensive Approach Child State- A 5. See 1745, Cases, nn. 92-105 and in Sex Abuse 18 Colum.L.Rev. ments accompanying text. 92 inequity is impelled
Such
when there exist excellent
indicia of reliability.6
alternative
need
The critical
for a
in child sexual
victim’s
cases, and
inadequacy
decla
spontaneous
abuse
need,
exception
by
ration
that
has
met
meeting
been
specific
of a
tender
years exception
creation
growing
of courts
legislatures.
rule
number
Since
1982,
realized, and
upon
seven states have
acted
this need.
(1984);
D.
Laws Ann. Sec. 19-16-38
Ind.Code
S.
Codified
(1984);
26, 1984,
of April
Ann.
35-37-4-6
Act
Ch.
Sec.
415-416;
1984
Serv.
Kan.Stat.Ann.
Sec.
Minn.Sess.Law
60-460-(dd) (1982).
See Colo.Rev.Stat. Sec. 13-25-129
Sec.
(1983);
(1983);
Code
76-5-411
Utah
Ann. Sec.
Wash.Rev.
(1982); see
v.
also State McCaf
Code.Ann. Sec. 9A.44.120
(1984)
S.D., 356
159
ferty,
(interpreting
N.W.2d
tender
State,
v.
statute);
184
Bertrang
50 Wis.2d
(1971) (tender
found
years exception
867
under
N.W.2d
Evidence,
908.03(24),
Rules of
Rule
Residual
Wisconsin
Exception).7
Pennsylvania
The Commonwealth of
Hearsay
hearsay exceptions
cases
used in child sexual abuse
also
6. Alternative
brought
application
on
their
in a
suffer from
limitations
Nick,
generally
v.
604 F.2d
non-traditional context. See
United States
(9th Circ.1979) (statement
condition); Fitzgerald
physical
1199
D.C.,
(1980) (en
States,
(1980), aff'd.,
A.2d 1295
United
412 A.2d
banc)
only
complaint
(complaint
rape
limited to show
doctrine
State,
made);
(1979)
Wis.2d
N.W.2d 917
Thomas v.
State,
statement);
Wyo., 674 P.2d
(prior
Goldade v.
consistent
diagnosis
expanded
(1983) (physician’s
treatment
*12
testimony).
hearsay identification
admit
Michigan’s
years exception
judically created tender
was
7. Note
legislative adop-
by Michigan Supreme
upon
Court
the
the
abolished
Kreiner,
Michigan
People
415 Mich.
of Evidence.
v.
tion of the
Rules
372,
(1982);
Debreczeny,
compare People
74
716
Mich.
329 N.W.2d
(1977)
years
(defining
tender
common law
App.
Against this for a background necessity victim’s testi- mony in the context of child sexual abuse and the success- protection ful of an accused’s interests the criminal our process by jurisdictions, years excep- sister tender should the law of adopted tion to the rule be this Commonwealth: Law, Child, (Wint.
Sexually Abused 61 Univ. of Det.J. of Urban 1984). Chapter (Admissibility Would Pa.C.S. 8. Bill 1361 have amended 42 Statements) provided: of Certain (A) by statement made a child GENERAL RULE—An out-of-court contact, describing intercourse or victim or witness indecent sexual performed by with or child anoth- deviate sexual intercourse er, on the or admissible statute rule of evidence is not otherwise any proceeding criminal if: admissible in evidence finds, hearing, (1) in an in camera that the evidence is The Court time, necessary, and circumstances of the and that the content reliability. provide sufficient indicia of statement (2) The either: (I) proceeding; Testifies (II) if there is corroborative evidence Is unavailable as a witness act. of the REQUIRED (B) admissible under statement otherwise NOTICE —A (A) propo- unless the shall not be received into evidence subsection party proponent’s of the the statement notifies the adverse nent of statement, particulars to offer the statement and intention sufficiently proponent proceeding at which in advance evidence, provide the adverse into intends to offer the statement opportunity prepare to the statement. party meet with fair Bill in the rule We have followed this Bill No. 1361 of 1984. Senate adopt today. we legislature has met the prepared the California 9. A bill similar Bill 621 of 1983. California Senate same fate. legislatures states majority gives of our who little credit to the 10. statements. This introduction of out-of-court voted to allow the have uphold legislators doing very best to implies are not their that the our welfare. and do what is best for constitution *13 An out-of-court statement made or by child victim contact, intercourse, indecent describing witness sexual or performed deviate sexual intercourse or on the child by with another is admissible in evidence in any proceeding criminal if: an in camera
(1) finds, The court hearing, the time, content, evidence is and that the necessary, and totali- ty provide of the circumstances of the statement sufficient indicia of and reliability;
(2) The child either:
(a) proceedings; Testifies at the provided (b) Is as a there is some unavailable witness: other evidence of the act.
A may statement not be admitted into evidence under this unless the of the statement makes proponent party known to the adverse his intention to offer the and the of the statement particulars sufficiently statement proceedings provide party in advance of the the adverse a fair to meet the statement.11 opportunity with exception provides ample opportunity This tender test the of the evidence and withstands constitu- reliability under the confrontation clause of the Sixth scrutiny tional the court Reliability by Amendment.12 will be determined an in camera hearing. The court should consider circumstances, time, content, including: and totality child; statement; used language context of the child; and of the the nature and duration age maturity offender; abuse; of the child to the relationship of the analysis other factor relevant case. This any Evidence, 803(24) of the Federal Rules of similar to Rule (1982); Pennsylvania Compare Ann. Sec. 9A.44.120 11. Wash.Rev.Code (1984), Assembly supra. n. Similar amend- General Senate Bill 1361 Young evidentiary Law- codes is recommended ment of state Legal National Re- yers American Bar Association. Division Protection, Advocacy Recommendations Child source Center for Legal Intrafamily Child Sexual Abuse Improving Intervention in Cases, (October 1982). 4.3 Section constitutionality Appellant challenges of the admission under the Sixth Amendment. statements *14 There, the exception. as within hearsay catch-all so-called cases, admit may area of child a court limited abuse exception enumerated not fit under a traditional which does guarantees reliability comparable are of if there exception.13 of a traditional guarantees circumstances, of the totality of the Through examination an delay reporting a child’s determine that may a court and consistent with explainable sexual is incident of abuse fear, or a are embarrassment Relevant factors the event. not avail- analysis simply This is incomprehension. child’s Com- exception. declaration spontaneous under the able Kasko, supra. v. Further, Commonwealth tender pare determine, case-by- on a a court to exception allows age an assault is of an basis, the victim of whether case premed- the statement was that improbable renders it which that is no clear evidence While there itated or fabricated.14 abuse, child, describing sexual specifically aby statement adult, than that of an trustworthy less more or is this determi- us that persuades for this evidence necessity circum- totality of the resolved under properly nation is 803(24) states: Rule 13. by any of specifically covered exceptions. statement Other —A guar- having equivalent foregoing exceptions circumstantial but (A) trustworthiness, determines that if the court of antees fact; (B) the state- of a material as evidence statement is offered any than probative point for which it is offered on the ment is more through procure reason- proponent can which the other evidence efforts; (C) purposes rules and the general of these able by admission of the statement justice will best be served of interests However, may not be admitted under a statement evidence. into proponent makes known to of it unless the this hearing to trial or sufficiently advance of the party adverse opportunity prepare to meet party with a fair provide the adverse it, it, particulars of and the the statement intention to offer his declarant. including of the the name and address Evidence, 803(24). Rule Federal Rules S.D., (1984) (young McCafferty, N.W.2d 159 Compare State beyond activity graphic account of sexual unlikely is to fabricate child States, 271 F.2d v. United personal experience); and Wilson the ken of Weihofen, Psychiatry and the (D.C.Cir.1959) (citing & Guttmacher suggestible, (1952) highly confused (young is Law 374 serious activity; not understand and does sexual about fascinated charges)). consequences of that the Justice demands law Common- stances.15 permit reliability consideration of the evolve wealth statement. provided by require- are reliability Further indicia support there some other evidence ment that be sexual conduct the declarant is illegal where allegation in most cases this testify at trial. While unavailable evidence, in some will be corroborative “other evidence” evidence will be which supporting situations prior an accused’s on the issue of sexual abuse: probative children, complaints by other charges, on similar conviction *15 not admissible at trial. or other evidence policy underlying is consistent with the today Our result Law, 11 Protective Pa. Child Services the Commonwealth’s protect seeks to seq. legislation 2201 et This C.S. Sec. of child by requiring reporting children from abuse come in contact with an abused persons who by any abuse 11 2204. It of Pa.C.S. Sec. employment. child the course the admission of out-of- prohibit anomalous to would be of reliability consideration special statements without court to insure great lengths has legislature gone where to the attention brought will be reports abuse authorities. responsible flexi- allows the courts more years exception The tender use greater to a than reliability degree promotes bility spontaneous of the declaration version expanded of an declaration spontaneous use of the Expanded exception. testimony; yet critical from the need admit arose requirement undercut contemporaneity relaxation of The the exception. for justification the theoretical with need to admit from that same exception arises tender State, (1983): Wyo., P.2d 721 v. 674 15. See Goldade pursue simply the common-law goal court were If the of our decisis, recog- must be then the cited authorities of stare tradition instance, position appellant. In this supporting the of the nized however, pursue the transcend- the court must be the function of addressing pernicious social ailment which goal the most ent society abuse. ... child afflicts our Id., at 725. 674 P.2d
97 meet- in specifically but its lies testimony, strength crucial Child unique circumstances sexual abuse. ing the of child spontane- not when simply anticipated sexual abuse was excep- ous declaration created. today prevalent we out to a responds tion which carve members against offense the most vulnerable pernicious our society, children.16 the demands of years exception
The tender
also meets
“In all
Amendment.
confrontation
clause
Sixth
right
...
prosecutions,
enjoy
the accused shall
criminal
him.”
against
the witnesses
U.S.
to be confronted with
Texas,
see Pointer v.
400, 85
VI;
Amend.
380
U.S.
Const.
1065,
(1965) (confrontation
ap-
923
clause
L.Ed.2d
S.Ct.
Amendment).
through
to the
the Fourteenth
states
plies
meaning
of the confrontation
Despite
apparent plain
did
intend to
clause,
of the constitution
framers
Roberts, v.
56,
Ohio
all
U.S.
S.Ct.
hearsay.
exclude
Green,
v.
(1980);
399 U.S.
Where
to
inhere in
accused’s
to cross-examine
as
right
tions
an
Green, 399
v.
testimony.
in
In
inconsistencies
California
36, 39,
(1908).
Territory,
v.
12 Ariz.
94 P.
16. See Soto
case,
During
Leigh-Manuel
this
was found
the course of
Darrell
trial;
testify
Jaclyn
permitted
competent
at
Predmore was
to
and did
only
was
testify
physically
to her and therefore
as to what
done
scope
fully
light
as a witness in
of her admitted
“available”
Shell,
Iron
F.2d 77
See United States v.
out-of-court statements.
Cir.1980)
thorough
(8th
(declarant
young
subjected
to be
constitution);
too
envisaged by
v.
United States
the
cross-examination
Cir.1979).
Nick,
(9th
(T)he Confrontation Clause who statements witness prior from evidence statements, be asked may and who making concedes inconsistency between explain or otherwise to defend in question, the events present and his version of prior his trial as full cross-examination at opening himself to thus to both stories. 164, 90 at 1938.
399 U.S. at
S.Ct.
extra-judi-
of an available
victim’s
admissibility
The
against
confrontation
upheld
has been
cial statements
Shell,
Iron
States v.
See United
challenges.
clause
Cir.1980) (nine
repeat
old
unable to
(8th
year
victim
F.2d 77
officer).
police
made to
statements
trial,
testify
child is unavailable or unable
Where
must
look at the
We
employed.
a different
test must be
themselves
to determine whether
statements
hearsay
guarantees
had particularized
statements
hearsay
admitted
satisfactory
of fact a
to afford the trier
of trustworthiness
statements. Ohio
evaluating
reliability
basis
Roberts, 448 U.S.
2531,
Nevertheless, properly admitted chil- exception. tender The statements of both by appellant. sexual contact It improper dren concerned from record statements were abso- apparent resolution of this case. lutely proper to allow necessary discovery of the incidents During the ten months between trial, memories of these four- second appellant’s trial, At considerably. had faded five-year-old children single-word responses questions Darrell’s consisted seq. Trial at 146 et and “no” answers. Notes of “yes” order had responses, limited to what Jaclyn’s pretrial Trial her, Notes of equally monosyllabic. happened were they children stated that seq. repeatedly 175 et Both 237, 243, States, 18. Mattox 156 U.S. S.Ct. United (1895). L.Ed. *18 details of the incidents. The to remember unable
were absolutely necessary give to the mothers was testimony of in a coherent to evaluate events opportunity an jury relatively the events were and from a time when manner minds. in the children’s fresh a stage years analysis, of the tender the second
Under supported by indicia of amply must be child’s statements Cavanaugh is of the Judge reliability and trustworthiness. inherently children are unreliable because that small opinion imagination, an how- imaginations.19 Even of their vivid imagine in You cannot ever, some basis fact. must have four and one- not Darrell was you do know about. what The the statements were made. old at the time half a chance conversation because of emerged only matter mother. There are no and his Darrell’s brother between fact, In it is story. his that Darrell fabricated indications imagined have this scenar- unlikely that he could extremely a appellant among large positively Darrell identified io. confrontation, a photo- pre-arrest of at a people number Although in lineup, at a court. display, graphic at trial for cross-exam- availability Darrell’s due to required the testi- ination, corroborated Darrell’s statement was illustration, of By way examining physician. of his mony relevant as “other Darrell’s incontinence was evidence of of the statement. the trustworthiness supporting evidence” to out-of- Jaclyn’s of Mrs. Predmore as under the tender also admissible court statements was to reach a necessary were The statements years exception. testimony showed Jaclyn’s in this case. just disposition and trial the event delay ten month between effects of the trial, At testimony. did Darrell’s severely more than even intimidated by somewhat Jaclyn the record shows fictitious, charge always of sexual abuse is a chance that a There is addition, happen In do not often. but these instances continues, becomeing it is analysis abuse and abusers of child investigators signs signals alerting recognize possible certain and doctors to this fact. Jones, Sexual Abuse and Fictitious Accounts P.H. Reliable David Children, of Violence, Inter-personal published the Journal of to be 2, June, 1986. Issue conflicting answers giving point proceedings, were necessary The statements twice asked. questions Jaclyn’s story ten jury coherent version give earlier. months analysis, the trial court’s stage of the the second
Under
order,
actually
to what was
done
limiting Jaclyn’s testimony
as a witness.
her,
her unavailable
effectively rendered
Shell,
Insofar as was amination, to is to look other evidence for necessary it of her state- of trustworthiness particularized guarantees apparent Darrell’s incontinence ment. That evidence testimony and in the of Darrell’s resulting from the abuse interviews, Jaclyn separate In both examining physician. of the cause of Darrell’s Darrell identical accounts gave Further, that the same of- both children stated injuries. Com- against Jaclyn. Compare had committed fenses been Kasko, supra (statements monwealth v. inadmissible of both questioning minutes of they where followed fifteen by both parent interrogation and joint children one children). As a by the parents which demanded reflection contact, Jaclyn’s to and witness the indecent child victim into admitted evidence. properly statement was Jaclyn’s in the exclusion inconsistency There is no of her state- at admission testimony yet trial identification The tender identifying appellant. ment it at the time was examination statement requires later, hearing, ten months competency At given. Jaclyn’s Jaclyn’s memory determined properly the lower court point had faded to the that she could not reliably identify appellant at trial. it is
Finally, apparent from the record that appellant was to prior aware trial that the Commonwealth intended to introduce these statements through the testimony (defense mothers. Notes of Trial 5-7 pre-trial counsel’s objection potential hearsay). The Commonwealth’s in- tent manifestly apparent from its use of the parents’ appellant’s first trial in March Appel- lant did not object admission of the statements at that case, time. Under the circumstances of this appellant was on notice and ample opportunity had prepare meet this evidence.
Based on the I foregoing analysis, would hold that the tender years exception satisfied the reliability trustwor- thiness requirements and is not inconsistent with the con- right frontation of the accused. The adoption of such a important statute would be an step combating forward onslaught child abuse cases. Therefore, I would affirm.
Ann and H. Wayne Stephen and Jean COEN and Janet
Tiley, Appellants. Superior Pennsylvania. Court of
Argued Sept. 1985.
Filed Feb. notes stance prior affidavit their destruction. cer’s arrest warrant Thus, the Further- only notes were cumulative evidence. for more, the officer testified the Commonwealth and was defense; therefore, procedur- proper cross-examined met. safeguards al were the issue of as to the two Lastly, merger we do reach since conviction is reversed. appellant's crimes for sentence reversed. Remanded a new Judgment of relinquished. trial. Jurisdiction J., OLSZEWSKI, dissents. OLSZEWSKI, Judge, dissenting: opinion that a majority’s I dissent from the respectfully should not be rule tender exception arises out of necessi- created. This judicially respect for the tender profound and a for evidence ty years of the victims sexual abuse. has increased dramat- of child sexual abuse The incidence difficult inherently The crimes are years.1 in recent ically showed a study Humane Association the American 1. A national By reporting of sexual abuse since 1976. in the 200% increase 25,000 per year. reported child sexual abuse cases of there were Collins, Widespread, New Find Abuse of Children is Statistics Sexual Cl, CIO, strong Times, col. There May col. 1982 at York problem may reported cases understate statistics of indication that may parents report problem may or the refuse to as the child CIO, 5-6; Id., generally see go cols. to the authorities. refuse Comment, Hearsay Statements in Comprehensive Approach to Child A Cases, Note, (1983); A Tender Years 18 Colum.L.Rev. 1745 Sex Abuse Way to Protect Courts: An Doctrine the Juvenile Effective (1984). Child, Urban Laws 249 Sexually U.Det.J. of Abused