Truth and Justice for ALL

1. Truth and Justice for ALL Beverly Tucker, MS Forensic Interviewer Children’s Advocacy Services of Greater St. Louis

2. When do the rules of evidence make it a challenge to admit forensic interviews of child victims of maltreatment? • Should we be utilizing the CAC model when the victim is beyond the age of “Hearsay” Exception? • Some reasons your teams offer for not referring older children to the CAC… • Using the forensic interview to address the challenges that come with some older youths. Today’s Considerations:

3. What is the most common age of victims during investigation (ie – age at onset of the criminal or social service investigation)? • 0 to 6 • 7 to 12 • 13 to 18 Question

4. What is the most common age of victims for cases that are prosecuted (age at onset of prosecution)? • 0 to 6 • 7 to 12 • 13 to 18 Question

5. What is the most common age of children that are seen at your Child Advocacy Center or otherwise forensically interviewed by a trained forensic interviewer? • 0 to 6 • 7 to 12 • 13 to 18 Question

6. Age of children at first contact with a CAC: 0 to 6 108,028 7 to 12 128,882 13 to 18 96,674 NCA National Statistics2017

7. Hearsay statements of children – • Age of child at time of testimony • Age of child at time of statement • Ages vary by state - all statutes include an exception based on chronological age. Some statutes as young as 9 and others include as old as 16 • Some include language related to the emotional or developmental age of the person or some other language identifying “vulnerable” persons • Some statutes limit to certain offenses such as sexual offenses only, while others are broader to include physical abuse, kidnapping, child pornography, etc. • All include child victims and some include child witnesses Many states have a statutory exception to hearsay rule for statements from a child

8. All require the child testifies at trial or is unavailable* – and that there is a hearing held outside the presence of a jury to determine there is an indicia or reliability - based on the time, content and circumstances of the statement. • Matters frequently considered - spontaneity, time of statement, questioning by the person to whom the statement was made, does the child use describe matters beyond the child’s anticipated knowledge. (Maryland limits admissibility based on the profession of the person to whom the statement was made and that the statement was made to the person while the person was acting in his/her professional capacity.) • Notice to other side of intent to use statements some state statutes require as much as 20 days. • Some states have no exceptions • *Crawford must be satisfied Many states have a statutory exception to hearsay rule for statements from a child

9. Does your jurisdiction conduct forensic interviews of children beyond the age of the hearsay exception? • Yes – as a matter of course all children under 18 are interviewed • Yes – as a matter of course all children under 18 who have been victims of a sexual offense are interviewed • Yes – but only on a case by case basis • Yes – rarely and by special request • No Question

10. If you are a jurisdiction that never or rarely interviews why not? • It is not admissible so why bother • Never thought about it Question

11. ChildFirst doctrine • Limits the number of times the victim is interviewed • Likely the child friendly environment, the skill of the interviewer will allow for a more detailed disclosure • Better charging decisions • Could be admissible as prior inconsistent statement, consistent statement or forfeiture by wrongdoing • Law could change – ex. – Missouri – child less than 12 to child less than 14 Why bother?

12. The child is our 1st priority, not any case that might result. • A skilled interview in a supportive environment yields the most reliable information from the child. That is something the MDT can utilize to corroborate or refute the allegations. • Forensic interviewers are neutral fact seekers, not an arm of the prosecution. ChildFirstDoctine

13. Better able to prepare for direct • More familiar with factors that child identifies with the acts – article of clothing, room in house, time of year Prosecution

14. Charging decisions • multiple sexual acts, multiple occurrences, time ranges • Age, school years, rooms in a residence, different residences Charging Decisions

15. Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay: • (1)A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement: • (B)  is consistent with the declarant's testimony and is offered: • (i)  to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or • (ii)  to rehabilitate the declarant's credibility as a witness when attacked on another ground; or • (C)  identifies a person as someone the declarant perceived earlier. • USCS Fed Rules Evid R 801 Prior Consistent Statement

16. Example § 491.074. RSMo Prior inconsistent statement may be admissible in criminal cases as substantive evidence • Notwithstanding any other provisions of law to the contrary, a prior inconsistent statement of any witness testifying in the trial of a criminal offense shall be received as substantive evidence, and the party offering the prior inconsistent statement may argue the truth of such statement. Prior Inconsistent Statement

17. Wrongdoing by defendant may forfeit confrontation right on equitable confrontation • Crawford, Davis & Hammonrelied on Reynolds v. U.S., 98 U.S. 145, 158-159, 24 L. Ed. 244 (1879) which created the forfeiture by wrongdoing exception • Giles v. California, 128 S. Ct. 2678 (2008) Forfeiture by Wrongdoing

18. “Earlier abuse or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have expected to testify.” See Giles 128 S. Ct. at 2693 • Standard of Proof • Preponderance of the Evidence • Hearsay is admissible Forfeiture by Wrongdoing

19. Example Missouri – 491.075 originally was for a child less than 12 and now is a child less than 14. Law Could CHange

20. We aren’t going to refer this teenager because… • What are some of the concerns expressed by the teams in your area? • From Law Enforcement • From Child Protection • From your Prosecutors Still concerned about referring a child above your jurisdictions exception age

21. Creates an opportunity for the defense to exploit inconsistencies between statements to LE, CP, Medical provider, in depo, etc… MDT Concerns:

22. Each witness needs to only speak to the content of their own interview or information gathering. • Address any seemingly confusing or conflicting information during the interview. • Consider your team’s protocol to see if it can be streamlined to eliminate non-essential interviews. • Provide advocacy and support to child and caregivers as early in process as possible to strengthen them to just tell their truth. Strategies to overcome

23. Teen’s demeanor during videotaped FI may be difficult for layperson to understand (aloof, uninterested, lack’s emotion, etc.) MDT Concerns cont’d:

24. Educate our team, community partners, trier of facts (judge/jury) about the dynamics of abuse and impact of trauma. • Is this the child’s 1st time talking about it? • Is this a delayed disclosure? • Ask child how they felt/what they thought when abuse occurred? (which may be different than how they present today) Strategies to overcome:

25. Other things come out in the interview that we wouldn’t want to address in trial (other victimization, drug/alcohol use, emotional/psych issues, delinquency, etc.) MDT Concerns cont’d:

26. Allow the child to be who they are during interview…don’t try to sanitize them. Abuse can lend itself to some ugly consequences. • Remind child that the interview is a judgment free zone! • Ask the child about 1st hospitalization/admission to treatment/onset of cutting or drug usage…is it connected to onset of abuse? • Ask child about a time in their lives when they felt safe. • Identify and consider using expert witness to testify about impact of abuse and trauma. Strategies to overcome:

27. Case Examples

28. Some practical/logistical consideration for CAC resources. Given that the statement can’t be used in court, why waste time and resources on interviews that won’t likely be seen in court? MDT Concern:

29. The best interest of the child Never forget this simple but powerful truth. We need to do what we believe to be best for every child, no matter their age or ability because that’s the right thing to do. Child First Doctrine

30. It’s Okay…this is a safe place!!! Questions

31. -“To sin by silence when we should protest makes cowards out of men.” Ella Wheeler Wilcox -Thank you to everyone who takes on this difficult challenge and does not remain silent but loudly fights to end child abuse. Thank you!