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He Said, She Said: Admission of Hearsay Statements Regarding Child Sexual Abuse in Custody Cases: Part 12 of 12 Parts

Jennifer Crissman, Attorney, Woodruff Family Law GroupJAC

In the final installment of our twelve-part practical series for attorneys practicing in Guilford and surrounding counties, we will review the case of State v. Deanes. In our hypothetical situation from Part 1, there were multiple hearsay statements made by the children to various family members, social workers, medical practitioners and detectives. While we have covered the prime hearsay exceptions to have these statements admitted, there is always the possibility that the court will not allow the hearsay in under the already enumerated exceptions. If this happens, the best alternative is to use Hearsay Exceptions Rule 803(24) – “Other Exceptions.” The court in Deanes gives us a broad overview of “other exception where there is inherent trustworthiness” under Rule 803(24), and the proper procedure to utilize this hearsay exception. State v. Deanes, 323 N.C. 508, 374 S.E.2d 249 (1988).

In the case of State v. Deanes, the child victim was a five-year-old girl who was raped by a friend of her mother. The child woke her mother the night of the attack and told her about the assault. The next day the mother confronted the alleged assailant, but took no further action when the assailant denied the attack. Simultaneously the Department of Social Services received an anonymous report that the child was raped. As a result of this report, a social worker became involved in the case. The social worker went to the child’s home, met with the child and the child told the worker about the rape. The social worker arranged for the child and mother to meet with a pediatrician the following day for the child to have a medical exam. At the medical exam, the child was nervous, and the social worker was called in to talk to the child and calm her down. Following the medical exam, the social worker interviewed the child at the social worker’s office with anatomically correct dolls and the child demonstrated what had occurred with the dolls. At trial, the social worker testified about statements the child made to her at the initial interview, at the pediatrician’s office, and at the social worker’s office. On appeal, the Defendant contended that the social worker’s testimony regarding the hearsay statements was improperly admitted under Rule 803(24).

The court in Deanes outlines the six steps the trial court must consider to admit the hearsay statement under Rule 803(24). The order of the steps are: 1) Was proper notice given, 2) Is the hearsay specifically not covered elsewhere, 3) Is the statement trustworthy, 4) Is the statement material, 5) Is the statement more probative on the issue that any other evidence which the proponent can procure through reasonable efforts, and 6) Will the interests of justice be best served by admission. Id. at 255.

After outlining these steps, the court then goes into a more detailed analysis regarding the issues of the statement’s trustworthiness, probativeness and the interests of justice. While the court’s analysis on these three topics is insightful, the court’s analysis of the statement’s trustworthiness is most notable. The Deanes Court outlines the four most consistently recognized factors trial judges use in guiding their decision regarding a statement’s trustworthiness. Those factors are: “1) assurance of personal knowledge of the declarant of the underlying event, 2) the declarant’s motivation to speak the truth or not speak the truth, 3) whether the declarant ever recanted their testimony, and 4) the practical availability of the declarant at trial for a meaningful cross-examination.” Id.

The court held that despite the fact the child did not initiate the conversations with the social worker, this has no impact on the truthfulness of the child’s statements. Further, the court held there was no reason to believe the child had a motivation to lie as there was no history of fabrication. The child was consistent in telling her story multiple times and did not recant or contradict herself. Ultimately, the court held that the social worker’s testimony regarding the child’s hearsay statements was admissible under this residual hearsay exception as there were guarantees of trustworthiness.

As we end our series, it is important to note that while these posts have covered some of the more common hearsay exceptions that can be used in cases involving child abuse, there is a myriad of other exception that can be utilized