An Unusual Ruling in Arkansas about Testimony by Children

This decision in Seely v. State sets up a potentially problematic rule in a child molestation case.  From the decision:

Appellant John Seely appeals his conviction for the rape of his then three-year-old daughter, as found by a jury in Pulaski County Circuit Court. Appellant posits a single argument for reversal: that the trial court erred in admitting hearsay evidence of his daughter through the testimony of her mother and a social worker. He contends that this violated his right secured by the Sixth Amendment to confront witnesses against him. We agree that the testimony of the social worker included inadmissible hearsay evidence in violation of the Confrontation Clause of the Sixth Amendment. We further conclude that this error was not harmless beyond a reasonable doubt. Therefore, we reverse and remand. Before trial, defense counsel moved to have a competency hearing to determine if the child, JB, would testify at trial. When that hearing was conducted, JB was four years old. The trial judge found her not to be competent to testify.

The result of this ruling seems to be that a 3-year old's statements about her sexual abuse can't be admitted directly (because she is incompetent to testify under law) or indirectly through the social worker (because such statements are hearsay). However, some statements were admissible via the mother since the mother did not make testimonial statements.  This decision deals with very tough issues, but I'm not sure the court has adopted a good rule for these sorts of cases.

Comments

[George]

Isn't there a simple solution? Just video tape the original interview. That would protect the defendant from leading questions that plant facts in the child's mind and also preserve her statements of the abuse. It seems it would be much easier for a child to confirm her previous statements in court that were made and recorded in the safer environment of the interview.

[Corey Rayburn Yung]

While videotaping satisfies the government, I'm not sure it helps with the defense's confrontation clause concerns. Videotaping doesn't allow a defendant to cross-examine or probe into the credibility of the girl. There is also the problem that at 3-years old, any child is unlikely to meet the legality standard for being able to testify (being able to understand the oath or the difference between truth and fiction is hard at that age).

[Megalodon]

When it comes to videotaped testimony, defense attorneys usually also argue that the video omits the full context of the interview, i.e. was the child rehearsed and practiced off camera? Was the child taught to refine his/her statements before the filming started?

Not to say that this happens frequently, but if the original witness is not available for live testimony, every possible indictment of the recording's credibility will be raised.

ffffgdawwwertttttt