Lead Opinion
Opinion
In In re Carmen O. (1994)
We conclude as to the latter question that the Carmen O. court’s creation of a child dependency exception in sexual abuse cases was well founded, but that the exception should be more fully developed to provide specific due process protections for parents in child dependency hearings.
We further hold that a finding that a child is not competent to differentiate between truth and falsehood or to understand the duty to tell the truth at the time he or she is prepared to testify should not be an absolute bar to the admission of the child’s hearsay testimony, but only one circumstance to be considered in determining whether the child’s statement is reliable. We also conclude that the Court of Appeal in the present case was correct in upholding the juvenile court’s admission of out-of-court statements of an alleged child sexual abuse victim during the dependency hearing.
Cindy L. (Cindy) was bom on October 15, 1990. Her father, Edgar L. (Edgar) and mother, Sonia M. (Sonia) separated in January 1994, and Cindy continued to live with Sonia.
Events in August of 1994 caused the Los Angeles County Department of Children and Family Services (Department) to initiate proceedings under section 300 to have Cindy adjudged a dependent child of the court.
In August 1994, Cindy attended Thomas Preschool. Yolanda Herrera, a teacher’s aide at the school, testified that on August 12, 1994, during nap time, she noticed Cindy lying on her back, with her legs spread open touching her vagina underneath the side of her underwear using both hands. Herrera asked in Spanish, Cindy’s primary language, “Cindy, what are you doing? You shouldn’t be touching yourself right there. You shouldn’t do that.” Cindy replied, “Well, my father always touches me right here . . . .”
Herrera reported this incident to the teacher, who directed Herrera to inform Sonia. That night, Sonia talked to Cindy, who denied any abuse. After a second incident at the preschool, the director referred the matter to the Department on August 16.
Mary Newman, a social worker, interviewed Cindy on that date at the preschool through an interpreter. When Newman asked Cindy, “Has anyone touched you in private places?,” Cindy replied, “Yes, Poppie,” and demonstrated by using her hand, touching her vagina, and pushing the material of her shorts into her vagina. Newman asked, “What did Poppie touch you with?,” to which Cindy answered, “Fingers.” When asked “How many fingers?,” Cindy replied, “One.” Cindy indicated to Newman that the touching took place at night in “daddy’s bed.” When asked to demonstrate her condition in bed by pointing to a dressed or undressed doll, Cindy pointed to the undressed doll. Cindy told Newman, “Daddy loves me best. I’m his favorite. Nobody loves me but daddy.”
Newman reported the matter to the Los Angeles Police Department, whose investigator tried to interview Cindy at a police station with Sonia’s
On the same date, Cindy was directed to Westside Hospital, where she was examined by Dr. Stephan Greene. According to a report by Dr. Greene, although he found no evidence of trauma, he did not “visualize” a hymen, and concluded that these findings were consistent with the reported history of sexual abuse.
Social worker Henry Olea interviewed Cindy on October 20. Olea asked Cindy if she knew the difference between a “good touch” and a “bad touch.” Cindy replied by patting her vagina and saying, “Poppi.” When asked where this activity happened, Cindy replied that it occurred in a bed. Thereafter, Cindy became nonresponsive to Olea’s questions.
At the hearing, the Department twice tried unsuccessfully to obtain testimony from Cindy. Cindy was generally nonresponsive to questions, and in response to questions regarding who, if any, “touched her pee-pee” she replied, “The clown.” After the first attempt to obtain Cindy’s testimony, Edgar contended that she was not competent to testify. With respect to the issue of competence, Newman testified that she could not specifically recall what she had done to determine whether Cindy understood the obligation to tell the truth, although she had a general routine for questioning children about their understanding of falsehoods, and she believed she had performed this routine with Cindy. Olea testified only that he had determined Cindy believed lies were bad.
At the conclusion of the hearing, the juvenile court found that Cindy was not competent as a witness because “[tjhere is no way [the court could] make a finding based upon the behavior that [it] saw in [the] courtroom, that she understood the duty to tell the truth or she had the ability to distinguish between the truth and falsity.” It concluded that Cindy was not competent when she had made her earlier statements to Newman and Olea. It also concluded that such statements, although generally competent evidence (see Malinda S., supra,
Nonetheless, the court concluded that Cindy’s statements to Herrera were admissible under the child dependency exception to the hearsay rule announced in Carmen O., supra,
The Court of Appeal affirmed, concluding that the juvenile court had not erred in applying the child dependency exception created by Carmen O., despite the latter court’s determination that Cindy was incompetent to testify. The Court of Appeal declared that “the child dependency . . . exception probes for unreflective and spontaneous truth-telling, and is not founded on the declarant’s regard for the duty of truth-telling.” We granted review.
II. The Child Dependency Exception
Before we consider whether the child dependency exception articulated in Carmen O., supra,
At the time this matter was adjudicated, section 355 provided that in a section 300 jurisdictional hearing, “any matter or information relevant and material to the circumstances or acts which are alleged to bring [the minor] within the jurisdiction of the juvenile court is admissible and may be received in evidence. However, proof by a preponderance of evidence, legally admissible in the trial of civil cases must be adduced to support a finding that the minor is a person described by Section 300.” (Stats. 1987, ch. 1485, § 34, p. 5621.) We concluded in Malinda S. that a “social study” prepared by a social worker pursuant to sections 281 and 358 fits within the class of “legally admissible” evidence on which a court can rely in a jurisdictional hearing, despite the fact that a social study is itself hearsay and may contain multiple levels of hearsay. Our conclusion was based in part on section 281, which provides that “[tjhe court is authorized to receive and consider the [social study] reports and recommendations of the probation officer in determining any . . . matter” regarding the custody, status, or welfare of the minor. We found that the statute, together with California
In Malinda S. we assumed that those whose hearsay statements appear in a social study would be available for cross-examination. (Malinda S., supra,
Nothing in the Welfare and Institutions Code provides for a hearsay exception outside of what is contained in a social study. Nor is any such exception found in the Evidence Code.
The Carmen O. court acknowledged that the hearsay statements in question did not fall within any recognized exceptions to the hearsay rule, such as a “spontaneous utterance” (see Evid. Code, § 1240, subd. (b)), “fresh complaint” (see People v. Burton (1961)
Rather than “straining traditional hearsay concepts,” the Carmen O. court found it appropriate to create a new hearsay exception. Citing our own decision in Malinda S., supra,
The Carmen O. court was not explicit as to the precise form that such an exception would take. It appeared generally to follow the American Bar Association Recommendations and the Washington statute on child hearsay, and similar statutes,
Turning to its own case, the court concluded that the child dependency exception was properly applied: First, the Carmen O. court implicitly found Carmen unavailable to testify because of her incapacity. Next, it found the circumstances under which Carmen made her statement to her half sister to be reliable. “The child here was of a very young age such that it is unlikely that the accusation was fabricated or the product of imagination. The statement accusing [the] father of molestation was spontaneous rather than the result of suggestive or leading questioning. Independent evidence was consistent with the statement. The statement was made not once but several times, and various recitations were consistent. The wording of the statement both in its Spanish terminology and its use of infantile descriptive words indicate no coaching .... Other adult males lived in the same household, but no accusation was made against them, which indicates a lack of indiscriminate or random accusations. Finally, there appeared no motive for Carmen to lie or exaggerate in her statements: The evidence was that she loved her father, played with him, and, apparently, did not become disaffected from him because of his sexual acts with her.” (Carmen O., supra,
Prior to the adoption of the Evidence Code in 1965, it is undisputed that courts on occasion created new exceptions to the hearsay rule. (See People v. Spriggs (1964)
In 1965, after Spriggs was decided, the statutory law of evidence was revised and expanded, and transferred from the Code of Civil Procedure into the newly created Evidence Code. These revisions, however, did not eliminate the role of courts in the development of new hearsay exceptions as appropriate. As one commentator has pointed out, the California Law Revision Commission initially recommended adopting the Uniform Rules of Evidence, which would have limited hearsay exceptions to those found in statute. (California’s Dormant Hearsay Exception, supra, 23 Santa Clara L.Rev. at p. 158; Tent. Recommendation and Study Relating to the Uniform Rules of Evidence (Aug. 1962) 4 Cal. Law Revision Com. Rep. (1963) pp. 311, 339.) Eventually, however, the commission reversed itself, and its final recommendation favored a greater role for courts and decisional law in shaping the law of evidence. As the commission explained in the introduction to its recommendations, although the proposed Evidence Code was
It is clear for a number of reasons that the commission, and the Legislature that adopted the commission’s recommendations, had the hearsay rule and exceptions thereto in mind when they referred to the permission granted to courts to “work out particular problems or . . . extend declared principles into new areas of law.” Evidence Code section 1200, subdivision (b) states: “Except as provided by law, hearsay evidence is inadmissible.” Evidence Code section 160 in turn defines “law” to include “constitutional, statutory, and decisional law.” The commission comment on section 160 states: “This definition makes clear that a reference to ‘law’ includes the law established by judicial decisions as well as by constitutional and statutory provisions.” (Recommendation Proposing an Evidence Code, supra, 7 Cal. Law Revision Com. Rep. at p. 44.) Thus, the language of Evidence Code section 1200, read in light of Evidence Code section 160 and the comments thereon, makes clear that one source of exceptions to the hearsay rule is from judicial decisions.
The commission’s comment to Evidence Code section 1200, which was adopted by the Senate Committee on the Judiciary, further underscores the active role contemplated for the judiciary in developing new hearsay exceptions. As the Senate Committee’s comment states in pertinent part: “Section 1200 states the hearsay rule. It defines hearsay evidence and provides that such evidence is inadmissible unless it meets the conditions of an exception established by law. Chapter 2 (commencing with Section 1220) of this division contains a series of exceptions to the hearsay rule. Other exceptions may be found in other statutes or in decisional law. . . . HD • • . HD [The] exceptions to the hearsay rule may be found either in statutes or in decisional law. Under existing law, too, the courts have recognized exceptions to the exclusionary rule in addition to those exceptions expressed in the statutes.” (Sen. Com. on Judiciary, com. on Assem. Bill No. 3212 (1965 Reg. Sess.) reprinted at 29B pt. 4 West’s Ann. Evid. Code (1995 ed.)' foil. § 1200, pp. 3-4, italics added.) Lest there be any doubt about the meaning of the phrase
The power of the judiciary in developing new hearsay exceptions has been little used. As one commentator has pointed out, courts have made limited forays into creating hearsay exceptions, generally without explicitly acknowledging the source of its power under Evidence Code section 1200. (See California’s Dormant Hearsay Exception, supra, 23 Santa Clara L.Rev. at pp. 165-178 [discussing the development of the “fresh complaint” doctrine and the rule permitting the admission of invoices].) In Malinda S., supra,
We emphasize that our reaffirmation of the power of courts to develop new hearsay exceptions does not turn on any constitutional principle of separation of powers. The Legislature, when it adopted the Evidence Code incorporating many rules originating at common law, chose to allow courts to continue to perform their common law function in a manner consistent with statute. Although not explicit in its justification, we can suppose that the Legislature determined that courts, by virtue of their position in administrating the rules of evidence on a day-to-day basis, would be in a good position to further develop the law of hearsay to respond to new evidentiary problems. The Legislature could have chosen to make hearsay law the exclusive province of statute, as it has done for the most part in the area of evidentiary privileges. (Evid. Code, § 911; Roberts v. City of Palmdale (1993)
We also emphasize that in developing new exceptions to the hearsay rule, courts must proceed with caution. The general rule that hearsay evidence is inadmissible because it is inherently unreliable is of venerable common law pedigree. (See Englebretson v. Industrial etc. Com. (1915)
Despite this cautionary note, it may nonetheless be appropriate for courts to create hearsay exceptions for classes of evidence for which there is a substantial need, and which possess an intrinsic reliability that enable them to surmount constitutional and other objections that generally apply to hearsay evidence. (See California’s Dormant Hearsay Exception, supra, 23 Santa Clara L.Rev. at pp. 159-162.) In the present case, there is a substantial need for the class of hearsay evidence contained in the child dependency exception. As the Carmen O. court and the sources on which it relied recognize, there are particular difficulties with proving child sexual abuse: the frequent lack of physical evidence, the limited verbal and cognitive abilities of child victims, the fact that children are often unable or unwilling to act as witnesses because of the intimidation of the courtroom setting and the reluctance to testify against their parents. (See 1 Myers, Evidence in Child Sex Abuse and Neglect Cases (2d ed. 1992) § 4.1, pp. 218-219.) Given these realities, the categorical exclusion of child hearsay, or admission only if the hearsay fits within traditional yet narrow categories such as the “spontaneous utterance” exception, will often mean the exclusion of significant, reliable evidence required for the juvenile court to assert its jurisdiction over the child and to ultimately protect him or her from an abusive family relationship.
Even if hearsay evidence is necessary, however, an exception to the hearsay rule is not valid unless the class of hearsay evidence proposed for admission is inherently reliable. We believe the exception created by the Carmen O. court needs to be clarified and augmented in order to better safeguard the reliability of a child’s hearsay statements introduced in a dependency proceeding. The Carmen O. court looked for guidance to the
Of these three safeguards, the reason for the third, that of notice, is readily apparent. (See Malinda S., supra, 51 Cal.3d at pp. 382-383 [due process in dependency hearings requires advance notice and opportunity to rebut adverse testimony].) The first requirement, that of circumstantial indicia of reliability, is common to all statutes that have adopted child hearsay exceptions. The nonexhaustive list of factors that the United States Supreme Court has cited as relevant to the reliability of hearsay statements made by child
The second requirement, that of corroboration of evidence if the hearsay declarant is unavailable for cross-examination,, is consistent with the predominant view regarding the admissibility of child hearsay statements. (See Note, supra, 32 Harv. J. on Legis. at pp. 238-239.) As one author has observed, the various indicia of reliability of a child’s out-of-court statements are by their very nature sufficiently ambiguous as to be “easily manipulable.” (Id. at p. 242.) A requirement of corroboration is an additional safeguard against the possibility of fabrication by very young witnesses whose out-of-court statements are insulated from the rigors of cross-examination. Furthermore, the requirement of corroboration will make the rule in this state regarding the admission of child hearsay statements consistent in both criminal and dependency proceedings. (See Evid. Code, § 1360.)
Of course, it may be argued that hearsay evidence should be more readily admissible in a child dependency proceeding than in a criminal proceeding, because the rights and interests at stake are different: dependency proceedings, unlike criminal proceedings, do not result in criminal sanctions, and exist primarily to promote the best interests of the child. (See Malinda S., supra, 51 Cal.3d at pp. 384-385.) But this difference is already reflected in statutes. First, there are differing burdens of proof in criminal and dependency proceedings—the former by beyond a reasonable doubt, the latter by the preponderance of the evidence with respect to a decision to assert jurisdiction, and by clear and convincing evidence if the child is to be removed from parental custody (see §§ 355, 361). Second, the Legislature has also already provided by statute, as discussed, for greater admissibility of child hearsay statements that are included in social studies. (See § 355.) Thus, existing statutes provide government agencies with considerable opportunity to introduce hearsay evidence in order to protect the interests of a child in an abusive situation. The child dependency exception we recognize today provides for certain minimal safeguards in those instances in which the evidence sought to be introduced does not fit within any statutory exception to the rule against hearsay.
Having determined that the Carmen O. court was correct, essentially, in creating a child dependency exception to the hearsay rule, we now turn to
III. Competence and the Child Dependency Exception
Edgar claims that even if we recognize a child dependency exception, that exception is inapplicable to this case,, because Cindy was incompetent at the time she made the hearsay statement in question. As will be recalled, the juvenile court found that Cindy was not competent as a witness because “there is no way [the court could] make a finding based upon the behavior that [it] saw in [the] courtroom, that she understood the duty to tell the truth or she had the ability to distinguish between the truth and falsity.” Edgar concedes, as is well established by case law, that if a child is unavailable to testify because she is too intimidated by the courtroom setting—what he designates as “fear incompetent”—then the hearsay statements of such a child could be admitted into evidence if they fell into one of the hearsay exceptions. (See In re Kailee B., supra,
In support of his position, Edgar relies primarily on Basilio T., supra, 4 Cal.App.4th 155. That case considered the admission of hearsay statements in a social study following our holding in Malinda S., supra,
As the Basilio T. court explained, every person regardless of age is competent to testify (Evid. Code, § 700) except if he or she is “[ijncapable of expressing himself or herself concerning the matter so as to be understood . . . ; or [f] [ijncapable of understanding the duty of a witness to tell the truth.” (Id., § 701.) Admitting that authority on the matter was scarce, the Basilio T. court found that, as a general rule, “a hearsay declarant must be competent when an out-of-court statement is made” (
Basilio T., however, is not dispositive of the case before us. At issue there was the admission of a child hearsay statement under the broad “social
Those out-of-state authorities that have considered this question in the context of their own child hearsay exception statutes have concluded that a finding of testimonial incompetence is not a bar to admission of a hearsay statement. In Perez v. State (Fla. 1988)
Though Perez involved a child who was unavailable to testify because of a finding of substantial likelihood that severe emotional and mental harm would result (Perez v. State, supra,
The Washington Supreme Court reached the same conclusion in State v. Doe (1986)
We agree with the Washington and Florida courts that a finding of incompetence to testify should not be a categorical bar to the admission of a child’s out-of-court statements. As our Court of Appeal concluded in People v. Butler, supra,
We recognize, as Wigmore stated, “on the one hand the childish disposition to weave romances and to treat imagination for verity, and on the other hand the rooted ingenuousness of children in their tendency to speak straightforwardly what is in their minds.” (2 Wigmore, Evidence (Chadbourn ed. 1979) § 509, p. 719.) We also note that contemporary psychological research affirms a young child’s capacity to tell the truth. (See, e.g., Melton et al., Psychological Evaluations for the Courts (2d ed. 1997) § 7.07, p. 173 [reporting little relationship between age and honesty, although conceptualization of duty to tell the truth varies with age].) There is no logical reason for denying admission of out-of-court statements that circumstances indicate
Applying the child dependency exception to the present case, we first note that we will not overturn the juvenile court’s conclusion that hearsay evidence was admissible unless the court has abused its discretion. (People v. Gordon (1990)
Second, Cindy, owing to her incompetence, was unavailable for cross-examination. (See State v. Doe, supra,
In sum, the juvenile court did not abuse its discretion by admitting or ' relying on Cindy’s statement in making its jurisdictional determination. Given that, there was sufficient evidence to support that determination.
IV. Disposition
For all of the foregoing, the judgment of the Court of Appeal in this case is affirmed.
George, C. J., Kennard, J., Baxter, J., Werdegar, J., and Chin, J., concurred.
Notes
All statutory references are to this code unless otherwise stated.
As we explained in In re Malinda S. (1990)
Our holding in Malinda S. has been partially codified and partially modified by 1996 amendments to section 355. Section 355, subdivision (a), now provides that for purposes of a jurisdictional hearing, “[a]ny legally admissible evidence that is relevant to the circumstances or acts that are alleged to bring the minor within jurisdiction of the juvenile court is admissible and may be received in evidence.” (Stats. 1996, ch. 36, § 1.) Subdivision (b) then provides that a social study and hearsay evidence contained in it are admissible and constitute competent evidence on which a finding of jurisdiction pursuant to section 300 may be based, to the extent allowed by section 355, subdivisions (c) and (d). Subdivision (c)(1) provides that “[i]f any party to the jurisdictional hearing raises a timely objection to the admission of specific hearsay evidence contained in a social study, the specific hearsay evidence shall not be sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based, unless the petitioner establishes one or more of the following exceptions: HQ ... HD (B) The hearsay declarant is a minor under the age of 12 years who is the subject of the jurisdictional hearing. However, the hearsay statement of a minor under the age of 12 years shall not be admissible if the objecting party establishes that the statement is unreliable because it was the product of fraud, deceit, or undue influence.” (§ 355, subd. (c)(1), added by Stats. 1996, ch. 36, § 1.)
As shall be described at greater length below, Evidence Code section 1360 does provide an exception to the hearsay rule in the case of criminal prosecutions for certain forms of child abuse or neglect. Evidence Code section 1360 does not directly apply to noncriminal cases such as the present one.
Over 34 jurisdictions have some form of an hearsay exception. (See Note, Should We Believe the People Who Believe the Children?: The Need for a New Sexual Abuse Tender Years Hearsay Exception Statute (Winter 1995) 32 Harv. J. on Legis. 207, 237 (hereafter Note).)
As noted in footnote 3, ante, the Legislature has amended section 355 to broadly authorize reliance on any hearsay contained in the social study by a child victim under the age of 12, as long as an objecting party does not prove that the statement was procured by means of fraud, deceit, or undue influence. Because the present case occurred before the 1996 amendments to section 355 went into effect, we need not decide whether the amended section 355 obviates the need for the child dependency exception. The precise meaning of section 355, and whether it permits a social service agency to produce via a social study report all the evidence that would be produced through the child dependency exception is a question left for another day. For our present purpose, it is sufficient to affirm that when this case was decided, the child dependency exception created in Carmen O. filled a significant gap in the law of hearsay evidence in child dependency proceedings that justified the creation of the exception.
Evidence Code section 1360 reads:
“(a) In a criminal prosecution where the victim is a minor, a statement made by the victim when under the age of 12 describing any act of child abuse or neglect performed with or on the child by another, or describing any attempted act of child abuse or neglect with or on the child by another, is not made inadmissible by the hearsay rule if all of the following apply:
“(1) The statement is not otherwise admissible by statute or court rule.
“(2) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability.
“(3) The child either:
“(A) Testifies at the proceedings.
“(B) Is unavailable as a witness, in which case the statement may be admitted only if there is evidence of the child abuse or neglect that corroborates the statement made by the child.
“(b) A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party the intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings in order to provide the adverse party with a fair opportunity to prepare to meet the statement.
“(c) For purposes of this section, ‘child abuse’ means an act proscribed by Section 273a, 273d, or 288.5 of the Penal Code, or any of the acts described in Section 11165.1 of the Penal Code, and ‘child neglect’ means any of the acts described in Section 11165.2 of the Penal Code.”
There are also cases, as Edgar acknowledges, in which the out-of-court statements of the child are used not to prove the truth of the matter asserted, but to prove the state of mind of the child or the nonabusing parent. (See In re Clara B. (1993)
Dissenting Opinion
I am troubled by the prospect of this court trying to craft a child dependency hearsay exception. The development of hearsay exceptions at common law over the last three centuries has been a gradual process. “Hearsay is generally excluded because the out-of-court declarant is not under oath and cannot be cross-examined to test perception, memory, clarity of expression, and veracity, and because the . . . trier of fact... is unable to observe the declarant’s demeanor. [Citations.] . . . [T]he focus of the rule’s several exceptions is ... on the reliability of the out-of-court declaration. Thus, the various hearsay exceptions generally reflect situations in which circumstances affording some assurance of trustworthiness compensate for the absence of the oath, cross-examination, and jury observation.” (People v. Cudjo (1993)
Here we are dealing with a three-year-old child. The trial court determined she is unable to distinguish between truth and falsity. The role played by reality, imagination, and suggestion in such a child’s recollection of events is profoundly mysterious. The majority’s desire to allow courts broad latitude to consider highly relevant evidence in cases involving suspected sexual abuse of youiig children is understandable. However, opening up this field to ad hoc judicial legislation is likely to embroil courts at all levels in a far-ranging quest for indicia of reliability which neither experience nor empiricism can readily support. (See Note, Determining Reliability Factors in Child Hearsay Statements: Wright and Its Progeny Confront the Psychological Research (1994) 79 Iowa L.Rev. 1149, 1176-1177 [“psychological research has verified less than half of the reliability factors relied on by the
Moreover, as the majority acknowledges, the Legislature has been active in this area. In 1995, it enacted Evidence Code section 1360, which allows for admission of certain child hearsay statements in a child abuse or neglect prosecution. (Maj. opn., ante, at p. 29, fn. 7.) In 1996, after the decision in In re Carmen O. (1994)