By Karla Kerlin and Renee Korn
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Hearsay statements often play a critical role in criminal proceedings involving sexual assaults of children. Understanding the basic principles governing the admission of children's hearsay statements is highly important to presiding over these types of cases as well as practicing law in this field.
The objective of this article and self-study test is to familiarize bench officers and attorneys with hearsay exceptions for children in sexual assault cases, including admission of statements to prove the corpus delicti, statements made for medical diagnosis and treatment, and statements describing child abuse under Evidence Code Section 1360.
Hearsay is defined as "a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." Evid C Section 1200(a). For example, when offered to prove that the defendant molested a child, the testimony in court of a witness that the child told her that the defendant had molested the child is hearsay. Hearsay is inadmissible, unless it falls within an exception created by law. Evid C Section 1200(b).
There are three related hearsay exceptions for children under 12 in sexual and physical abuse cases. Evidence Code Section 1228 permits the statements of the child to be introduced to establish the corpus delicti in order to introduce a confession by the defendant. Evidence Code Section 1253 permits the admission of a child's statement made for the purpose of medical diagnosis or treatment. Evidence Code Section 1360 admits the statements of the child describing child abuse if there are sufficient indicia of reliability.
Although outside the scope of this article, these exceptions may need to be evaluated under Crawford v. Washington, 541 U.S. 36 (2004). Under Crawford, even if statements fall within a hearsay exception, they may be inadmissible if the statement is "testimonial," the child is not testifying, and the defendant had no prior opportunity to cross-examine the child.
Also outside the scope of this article are many hearsay exceptions that may render admissible statements by children, such as prior consistent statements and spontaneous statements (Evid C Sections 1236, 1240), and the fresh complaint doctrine (People v. Brown, 8 Cal. 4th 746 (1994)).
Evidence Code Section 1228 provides for the admissibility of certain statements by minor children, when the statements establish the elements of the crime, in order to admit the confession of a person charged with violating Pen C Sections 261 (rape), 264.1 (rape in concert), 285 (incest), 286 (sodomy), 288 (lewd act on a child), 288a (oral copulation), 289 (sexual penetration with a foreign object) or "647a." Penal Code Section 647a does not define a crime; it is likely that the Legislature intended to reference Pen C Section 647.6, annoying or molesting a child under the age of 18, which previously had been numbered Pen C Section 647a.
In order to admit the statements under Evid C Section 1228, subdivisions (a) through (f) of this section must all apply. The court must find:
The statement was made by a child under the age of 12 (Evid C Section 1228(a));
The statement describes the child as a victim of sexual abuse (Evid C Section 1228(b));
The contents of the statement were included in a written report of a law enforcement officer or a county welfare department official (Evid C Section 1228(a));
The statement was made prior to the defendant's confession (Evid C Section 1228(c));
The confession was memorialized in a trustworthy fashion by a law enforcement official (Evid C Section 1228(f));
There are no circumstances that would render the statement unreliable, such as significant inconsistencies between the statement and the confession (Evid C Section 1228(d));
The child is unavailable or refuses to testify (Evid Section 1228(e)).
A court must view with caution the testimony of a person recounting hearsay when there is evidence of personal bias or prejudice. Evid C Section 1228(c). The prosecution must give notice of its intent to use such a statement, in writing, at least 10 days prior to the hearing. Evid C Section 1228(f).
If the statement is offered during a jury trial, the court's determination shall be made out of the presence of the jury. If the statement is found to be admissible under this section, it must be admitted out of the presence of the jury and solely for the purpose of determining the admissibility of the confession of the defendant. Evid C Section 1228(f).
In Creutz v. Superior Court, 49 Cal. App. 4th 822 (1996), the court found that Evid C Section 1228 should be construed strictly to permit a child's statements to come in only when the defendant had made a confession in which all elements of the offense were expressly admitted. In Creutz, the child had accused the defendant of three separate sexual offenses. He admitted touching her once while bathing her, but denied any improper intent. The court found that this was an admission rather than a confession and refused to permit the court to infer the lewd intent required so that this hearsay exception could be utilized. On the other hand, in In re J.A., 198 Cal. App. 4th 914 (2011), the Court of Appeal held that the juvenile offender's statement constituted a confession and properly admitted the victim's statements under Evid C Section 1228.
At the time that Evid C Section 1228 was enacted, a defendant's confession was inadmissible absent independent proof of the corpus delicti. See People v. Moreno, 188 Cal. App. 3d 1179 (1987). People v. Alvarez, 27 Cal. 4th 1161 (2002), held that, because of the Truth-in-Evidence provision of Proposition 8 (Cal. Const. art. I, Section 28(d)) (now Cal. Const. art. I, Section 28(f)(2)), a defendant's confession in violation of the corpus delicti rule can be admitted at a trial, but the jury must be instructed that the defendant may not be convicted absent evidence of the crime independent of his confession. Evidence Code Section 1228 appears to be important even after Alvarez, because when its requirements are satisfied, the jury need not be so instructed.
Diagnosis or Treatment
Evidence Code Section 1253 provides an exception to the Hearsay Rule where a statement made by a minor under the age of 12 who is the victim of child abuse or neglect is admissible was made for the purpose of medical diagnosis or treatment. The statement must be reasonably pertinent to diagnosis or treatment and must describe abuse or neglect. Further, the statement must have been given under circumstances indicating its trustworthiness.
As defined in this section, "child abuse" has a broad meaning and is applicable to the following violations of the Penal Code: rape (Section 261), unlawful sexual intercourse (Section 261.5(d)), rape in concert (Section 264.1), incest (Section 285), sodomy (Section 286), lewd act on a child (Section 288), oral copulation (Section 288a), continual sexual abuse of a child (Section 288.5), and sexual penetration with foreign object (Section 289) or any sexual crimes described in Pen C Section 11165.1 as well as acts of "child neglect" as described in Pen C Section 11165.2, including child endangerment (Section 273a) and infliction of corporal punishment (Section 273d).
In order to admit the statement under Evid C Section 1253, all of the following requirements must be satisfied: (1) The victim must be a minor at the time of the proceedings; (2) The statement was made when the victim was under the age of 12 describing any act, or attempted act, of child abuse or neglect; (3) The statement was made for purposes of medical diagnosis or treatment and describes 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. The statement must also have been given under circumstances indicating its trustworthiness. Evid C Sections 1252, 1253.
In People v. Brodit, 61 Cal. App. 4th 1312 (1998), the court held that a child's statements "describing the nature and circumstances of sexual abuse, made in the course of a child sexual abuse examination," including a statement identifying a member of her family as the abuser, are admissible because they are "reasonably pertinent to diagnosis or treatment." In addition, when such statements are made to a psychologist, even one who is unlicensed, they are admissible under this hearsay exception despite the reference in the statutory language to "medical diagnosis." This exception to the hearsay rule can be used by either the prosecution or defense.
Statements Describing Abuse
A statement made by a child under the age of 12 describing an act of child abuse is admissible if the court finds a sufficient indicia of reliability and either the child testifies, or, if unavailable, evidence is presented of the abuse that corroborates the statement. Evid C Section 1360.
As defined in this section, "child abuse" has a broad meaning and is applicable to the following violations of the Penal Code: rape (Section 261), unlawful sexual intercourse (Section 261.5(d)), rape in concert (Section 264.1), incest (Section 285), sodomy (Section 286), lewd act on a child (Section 288), oral copulation (Section 288a), continual sexual abuse of a child (Section 288.5), and sexual penetration with foreign object (Section 289) or any sexual crimes described in Pen C Section 11165.1 as well as acts of "child neglect" as described in Penal C Section 11165.2, including child endangerment (Section 273a) and infliction of corporal punishment (Section 273d).
In order to admit the statement under Evid C Section 1360, all of the following requirements must be satisfied: (1) The victim must be a minor at the time of the proceedings; (2) The victim testifies at the proceedings or the victim 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; (3) The statement was made when the victim was under the age of 12 describing any act, or attempted act, of child abuse or neglect; (4) 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; (5) The statement is not otherwise admissible by statute or court rule. Evid C Section 1360(a).
People v. Eccleston, 89 Cal. App. 4th 436 (2001) and People v. Brodit, listed the following factors that would qualify as indicia of reliability or trustworthiness:
The child can understand relevant concepts and can differentiate between what is true and what is not.
The statement is spontaneous and consistently repeated.
The child demonstrates an understanding of the statement and an independence of thought.
The child uses terminology unexpected of a child of a child of a similar age.
The child has an abnormal understanding of sex for a person of similar age.
There is no motive for the child to fabricate.
The child is not asked leading questions during the interview.
There is nothing in the child's mental state that would indicate untrustworthiness.
Finally, the proponent of the statement must give reasonable notice to the adverse party of the intent to offer the statement and the particulars of the statement before the hearing. Evid C Section 1360(b). People v. Roberto V., 93 Cal. App. 4th 1350 (2001), interpreted the requirement of notice "in advance of the proceeding" to mean that the notice must precede the beginning of the trial, and that trial begins when the jury is sworn.
Karla Kerlin is a judge in Los Angeles County Superior Court.
Renee Korn is a judge in Los Angeles County Superior Court.