I previously wrote (here) about the U.S. Supreme Court’s recent cert grant in Ohio v. Clark, a case in which the Court will decide whether a three-year-old child’s statements to his preschool teachers are testimonial. Hiding in plain sight in that case is an issue as interesting as the Crawford question that the Court will decide. In Clark, the Ohio Supreme Court held that the child’s statements to his teachers identifying the defendant as the perpetrator were testimonial. It further held that the trial court violated the defendant’s confrontation clause rights when it admitted the child’s out of court statements to his teachers at trial, after finding the child—L.P. —incompetent to testify. L.P. was found to be incompetent six months after uttering the statements at issue.
Because Clark’s focus is on the confrontation issue, little attention is given to the hearsay exception that allowed for admission of L.P.’s statements under the evidence rules. In child abuse cases, the most commonly applicable hearsay exceptions are the excited utterance exception, the statement for purposes of medical examination and treatment exception, and the residual exceptions. It’s not clear from the state court opinion but it doesn’t appear that a foundation was laid for admission under the excited utterance or medical examination and treatment exceptions. That leaves the residual exceptions and gets us to the issue hiding in plain sight: If L.P. was incompetent to testify, should his statements have been admitted under the residual exceptions?
In North Carolina, before admitting proffered hearsay evidence pursuant to the residual exceptions, the trial judge has to engage in a six-step inquiry. The judge must determine that:
- proper written notice was given to the adverse party;
- the hearsay statement is not specifically covered by any other hearsay exception;
- the proffered statement possesses circumstantial guarantees of trustworthiness;
- the proffered evidence is offered as evidence of a material fact;
- the proffered evidence is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and
- the proffered evidence will best serve the general purposes of the rules of evidence and the interests of justice.
State v. Triplett, 316 N.C. 1, 7-9 (1986) (adopting this test for the Rule 804(b)(5) residual exception); State v. Smith, 315 N.C. 76, 92-96 (1985) (adopting this test for the Rule 803(24) residual exception).
The third inquiry—whether the statement has circumstantial guarantees of trustworthiness—is the most significant step in the analysis, Smith, 315 N.C. at 93, and has its own multi-part analysis. Specifically, when evaluating circumstantial guarantees of trustworthiness, the judge must consider:
- whether the declarant had personal knowledge of the underlying events,
- whether the declarant is motivated to speak the truth or otherwise,
- whether the declarant has ever recanted the statement, and
- the practical availability of the declarant at trial for meaningful cross examination.
State v. Fowler, 353 N.C. 599, 612 (2001); State v. Sargent, 365 N.C. 58, 64 (2011); State v. Valentine, 357 N.C. 512, 518 (2003); Triplett, 316 N.C. at 10-11; Smith, 315 N.C. at 93–94. This list is not exhaustive. Sargent, 365 N.C. at 64. Other relevant factors include the nature and character of the statement, the relationship of the parties, Triplett, 316 N.C. at 11; State v. King, 353 N.C. 457, 479 (2001), and whether corroborating evidence exists. State v. Nichols, 321 N.C. 616, 625 (1988).
When examining the practical availability of the declarant factor, the court should consider the reason for the declarant’s unavailability. State v. Garner, 330 N.C. 273, 285 n.1 (1991). “[W]hen a witness is incompetent to testify at trial, prior statements made with personal knowledge are not automatically rejected” on grounds that they lack the required guarantees trustworthiness. State v. Wagoner, 131 N.C. App. 285, 290 (1998). Tricky issues sometimes arise on this point with respect to child declarants. Our courts have noted that “[a] child may be incompetent to testify, but incompetence is not ‘inconsistent as a matter of law with a finding that the child may nevertheless be qualified as a declarant out-of-court to relate truthfully personal information and belief.’” Id. at 291 (citation omitted). However, if the child’s “unavailability is due to an inability to tell truth from falsehood or reality from imagination, then [the] previous statements necessarily lack the requisite guarantees of trustworthiness to justify admission.” Id. On this point, the Court of Appeals has stated:
It is illogical that one be held unavailable to testify due to an inability to discern truth from falsehood or to understand the difference between reality and imagination and yet have their out-of-court statements ruled admissible because they possess guarantees of trustworthiness. The very fact that a potential witness cannot tell truth from fantasy casts sufficient doubt on the trustworthiness of their out-of-court statements to require excluding them. We hold that finding a witness unavailable to testify because of an inability to tell truth from fantasy prevents that witness’ out-of-court statements from possessing guarantees of trustworthiness to be admissible at trial under the residual exception . . . .
State v. Stutts, 105 N.C. App. 557, 563 (1992) (prejudicial error occurred on this basis).
As I said, the record doesn’t reveal what hearsay exception was at issue in Clark. If the residual exception was at issue and the case arose in our state, the trial judge would have been required to consider the reason for L.P.’s incompetency when determining whether to admit his hearsay statements under a residual exception. This is an important issue that North Carolina lawyers sometimes neglect to address when the prosecution seeks to admit a child’s out-of-court statement in a child abuse case. But you now have the law on point—go forth and conquer!