An Introduction to Child Hearsay and Williams Rule Evidence

1. An Introduction to Child Hearsay and Williams Rule Evidence A review of admission of child statements and evidence of prior crimes for non-lawyers Nicholas Camuccio Assistant State Attorney Fifth Judicial Circuit (352)671-5800 ncamucc@jud5.flcourts.org uflaxalum@yahoo.com

2. What is Hearsay? • Hearsay is an out of court statement offered to prove the truth of the matter asserted • Statement can be written or oral • Can be nonverbal conduct if it is intended by the person as an assertion • Hearsay is generally inadmissible due to the fact that it can be unreliable • Exceptions to this general rule are recognized because there is sufficient guarantee of reliability of the out of court statement

3. Exceptions to the Hearsay Rule • 24 different exceptions mapped out by statute (Florida Statute §90.803) • Spontaneous Statement • Describes or explains an event or condition while the declarant was perceiving the event or condition • Keys are spontaneity and contemporaneity of the statement • Excited Utterance • Excited statement relating to a startling event made while the declarant is under the influence of the event • 911 calls frequently give good excited utterances

4. More Exceptions to the Hearsay Rule • Admissions/Statement against Interest • Business Records • Recorded Recollections • Statement about a matter that the witness once had knowledge but now has insufficient recollection • As long as the recorded statement was made at a time the witnesses’ memory was fresh

5. Statements for Purposes of Medical Diagnosis • Statements for purpose of a medical diagnosis or treatment by a person seeking the diagnosis • Or made by a person legally responsible for that person and is seeking the diagnosis for someone who cannot communicate medical history • The statements of presently existing physical condition (symptoms, pain, and sensations) are admissible • Not all courts will accept this for statements made to CPT in child abuse cases – very fact specific

6. Child Hearsay • Exception found in Florida Statute §90.803 (23) • Out of court statement made by a child victim 11 years of age or younger (physical, mental, or emotional) • Describes an act of child abuse or unlawful sexual act • Admissible if in a hearing out of the presence of the jury the judge determines that the statement is reliable and from a trustworthy source • The determination of reliability must be made without looking to corroborative evidence

7. Does this apply to child witnesses of the act? • Statutory exception specifies it must be a victim • Child witness to applicable crime not enough (State v. Dupree,656 So. 2d 430 (Fla. 1995) – child witness to murder case) • Lewd or Lascivious Exhibition • Intentionally masturbates, or • Intentionally exposes the genitals in a lewd or lascivious manner, or • Intentionally commits another sexual act that does not involve contact with the victim including simulation of sexual activity

8. Procedure • Filing of Intent to Rely on Child Hearsay Evidence • Must include a summary of the statements made and who they were made to • Must be filed at least 10 days prior to trial • Hearing • Witnesses that the child made statements to will be called • Child does not necessarily need to testify at hearing, but it is preferred • Focus is not on what happened • Focus is on the ability of the child to testify competently • Video interview of the child can be used if the child was qualified to testify

9. Child Hearsay Hearing • Focus of the hearing: • What was said • What were the circumstances surrounding that statement • Must be done out of the jury’s presence • Generally (and preferably) done prior to the trial

10. Witnesses Commonly Used • Family members and Friends • Law Enforcement • Medical Staff • DCF workers • Forensic Interviewers

11. Does the child victim have to testify? • Child is not required to testify at the child hearsay hearing (Perez v. State, 536 So. 2d 206 (Fla. 1989)) • It is preferable for the court to be able to personally examine the child to determine the child’s ability to perceive and relate facts concerning the event • It is permissible to use a video taped interview during this hearing

12. Preparation for Child Hearsay Hearing (or any other testimony) • Preparation begins during your initial meeting with the child • Its all in the details • Write things down • Use quotes when appropriate • Review Reports, Pictures, Videos • Review any recorded statements • Meeting with Prosecutor

13. Meeting with Prosecutor • Opportunity to review what is going to be covered during your testimony • Talk to the prosecutor about any concerns • Go through questions that the prosecutor is going to ask • Discuss possible defense strategies • Discuss possible cross-examination

14. The Court’s Role • Two pronged analysis • Is the statement reliable • Was it made to a trustworthy source • The Court cannot consider corroboration when making this determination

15. Reliability Factors • State v. Townsend (635 So. 2d 949, (Fla. 1994)) establishes non-exclusive list of criteria to determine reliability: • Spontaneity of the statement • Was the statement made at the first available opportunity following the incident • Whether the statement was elicited in response to questions from adults (Non-leading questions preferred) • The mental state of the child when reported • Was the description a child-like description

16. Reliability Factors Cont. • Did the child use terminology unexpected of a child • The motive or lack thereof to fabricate the statement • The ability of the child to differentiate between fantasy and reality • The vagueness of the allegation • Contradictions in the statement • Possibility of influence on the child in the case of a domestic dispute

17. Trustworthy • Who is the statement made to • Does this witness have a stake in the outcome • Is this person trained in interviewing

18. Testimony at Child Hearsay Hearing • Relax • Talk to the Judge • Listen to the question • Answer the questions that are asked • Make sure you understand the question • Don’t argue with Defense Attorneys

19. Testimony at the Child Hearsay Hearing • Three goals • Convey what was said • Establish it was reliable • Establish that the witness is trustworthy • How to do that • Witness background and training • Circumstances surrounding interview • What was said (or video)

20. Cross-Examination • Goal of Cross Examination is to undermine credibility • Focus on Cross in Child Hearsay • Was the child lead in questioning • Does the witness have a stake in the outcome • Townsend factors that are not present

21. Handling Cross Examination • Be respectful and polite to everyone in the courtroom - especially the defense attorney • Maintain poise and control • LISTEN TO THE QUESTION • Stay on point • Don’t play games with the attorney

22. Confrontation Clause • 6th Amendment to the US Constitution • Guarantees: • Speedy trial by jury • Counsel • To be confronted by the witnesses against them • Does not necessarily require face to face confrontation

23. Crawford v. Washington • Testimonial hearsay complies with confrontation clause only if the declarant testifies at trial or was unavailable and the accused had an opportunity for cross-examination • Generally, a statement is testimonial when it is taken in anticipation of litigation • A statement to a CPT worker or law enforcement officer is testimonial

24. Use of Child Hearsay in Trial • Witnesses can testify about what the child told them • Video interview can be played • Can be used even if inconsistent with trial testimony • Can be used even if child recants at or before trial (Johnson v. State, 1 So. 3d 1164 (1st DCA 2009) • However – if there is no other evidence and the child recants the case will be dismissed • Just because it was admitted does not necessarily mean that it will be used

25. Case Study: State v. Darren Butler • Victim spent the weekend with her aunt, her aunt’s boyfriend, and the boyfriend’s brother (the Defendant) • When the victim returned home, mother noticed a change in behavior and asked what was wrong • Child disclosed to the mother and then to CPT/CAC witnesses about the abuse • Defendant eventually admits to digital penetration

26. Case Study: State v. Darren Butler • Details of disclosure • To mother: Stated he put his hands down her pants, took her clothes off, and “peed inside her” • To CPT: Defendant touched her with his hands, took her clothes off, “his privates touched her privates”, and she saw something come out of his privates onto her privates

27. Case Study: State v. Darren Butler • Child Hearsay Hearing • Presented evidence of mother, CPT workers, and child testified (but not about the events) • There was no video interview of the child • Court made specific findings consistent with Townsend • No evidence of hostility or motive to fabricate • No evidence of either the mother or CPT staff using improper influence (questions not leading or suggestive) • Testimony of child was consistent with a child of her age • No significant contradictions in the testimony of the child to different sources • Court determined that the child understood truth v. lie and fantasy v. reality • Court ruled that both the mother and CPT worker were trustworthy sources • Only after theses determinations were made did the Court determine that there was sufficient evidence to corroborate the hearsay (the confession)

28. Case Study: State v. Darren Butler • Trial • Mother and CPT workers both testified about the contents of the disclosure and the circumstances surrounding the disclosure • Child testified but was unable to give the level of detail previously described • Defendant was convicted as charged and is serving life in prison

29. Case Study: State v. Andrew Karelas • Victim is abused by Mother’s Boyfriend at a Lake House • Independent witness sees what appears to be a sexual act in the window • Assumes the Defendant to be with his Girlfriend so he just bangs on door • Defendant gets up and child is underneath

30. Case Study: State v. Andrew Karelas • Child is interviewed for hours by law enforcement • Child will not disclose any sort of penetration • Law enforcement would not allow child to go to the bathroom for fear that physical evidence may be lost • Child was subsequently interviewed over the next week by at least three other CAC interviewers in different jurisdictions

31. Case Study: State v. Andrew Karelas • Defense expert listed who testifies that the improper interviewing techniques led to false memories • Court excluded the testimony of the child • Court ruling was appealed and overruled • Defendant eventually pled to Child Abuse

32. What is Williams Rule? • Florida Statute §90.404 • Evidence of prior bad acts or other crimes committed by the Defendant • Two different types • Traditional Williams Rule §90.404(2)(a) • Other Acts of Sexual Abuse • Other Acts of Child Molestation §90.404(2)(b) • Other Acts of Sexual Abuse §90.404(2)(c)

33. Brief History of Williams Rule • Traditional Williams Rule • Can be used for very specific reasons • To prove intent, motive, absence of mistake or fact, opportunity, preparation, or knowledge • Cannot be used solely to show propensity to commit an act or bad character • Prior act must be very similar to the charged act • Court must determine that the evidence is being presented to show something other than propensity and whether the unfair prejudice outweighs the probative value of the evidence • Cannot become the feature of the trial

34. Brief History of Williams Rule • Other Acts of Child Molestation • In 2001, the legislature expanded situations where Williams Rule could be used in child sex cases • Original statute allowed the use of evidence of the Defendant committing other acts (L&L or sex battery) when the victim is 16 or younger • Can be used to show propensity of the Defendant to commit the act or corroborate the testimony of the victim • Still must be relevant

35. Brief History of Williams Rule • “Walk in their Shoes Act” • Effective July 1, 2011 • Expands the types of other acts of child molestation that can be used against the defendant in §90.404(2)(b) • Now includes internet and technology related crimes such as child pornography and traveling to meet a minor • Adds §90.404(2)(c) • Similar to Other Acts of Child Molestation but does not have an age restriction for the age of the victim • Language in this section mirrors §90.404(2)(b) so case decisions should be able to be used for this section

36. Procedure • Filing of Intent to Rely on Williams Rule Evidence • Must include a summary of the prior bad acts • Must be filed at least 10 days prior to trial • Hearing • Witnesses that would prove the prior crime are called (prior victim, law enforcement, etc.) • Must show relevance • Must not become a feature of the trial • State must prove prior bad acts by “Clear and Convincing Evidence”

37. The Court’s Role • Must determine relevance • Why is the evidence being offered (Traditional vs. Other Sexual Acts) • Is the probative value of the other crime substantially outweighed by the danger of unfair prejudice. • Factors the Court will review: • (1) the similarity of the prior acts to the act charged regarding the location where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed • (2) closeness in time of the prior acts to the act charged • (3) frequency of the prior acts • (4) the presence or lack of intervening circumstances.

38. Case Study: State v. Susan Creecy and David Horton • Defendants were involved in long term relationship with each other • Defendants charged with numerous sex acts upon the daughter of Creecy • State learned of allegations involving the same Defendants upon other children across the country as well as acts on the same child in other States

39. Case Study: State v. Susan Creecy and David Horton • Total of four separate Williams Rule notices filed • Included allegations of crimes against victim in other States • Included allegations that another “girlfriend” had participated in these acts with victim in another State • Included allegations of other victims in Georgia, Illinois, and South Carolina • Included an allegation made by Creecy of an event she observed between Horton and the victim

40. Case Study: State v. Susan Creecy and David Horton • Williams Rule Hearing • Offered evidence of the victim regarding abuse in other states • Offered evidence of the “girlfriend” about what she observed the Defendant’s do with victim in other States, how she participated with this victim, and other children she observed the Defendant’s abuse in other States • Offered evidence of another victim abused by Horton

41. Case Study: State v. Susan Creecy and David Horton • Williams Rule Hearing • This evidence was offered under both theories of Williams Rule • Traditional – “plan, opportunity, motive, absence of mistake or fact” • Showed the similarities of how Horton isolated other victim and committed these crimes away from other possible witnesses • Other Acts of Child Molestation – Show propensity and corroboration of the victim’s testimony • Obtained specific ruling that it was allowable under both theories

42. Case Study: State v. Susan Creecy and David Horton • Trial • Required two juries (one for each Defendant) • Victim testified about other abuse • “Girlfriend” testified about her involvement with abuse on victim (Did not testify about other children she observed abused by Defendants) • Other victim testified about what Horton did to her • Both Defendant’s convicted as charged and are both serving life sentences