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 CamuccioAssistant State AttorneyFifth Judicial Circuit(352)671-5800ncamucc@jud5.flcourts.orguflaxalum@yahoo.com

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 assertionHearsay is generally inadmissible due to

the fact that it can be unreliableExceptions to this general rule are

recognized because there is sufficient guarantee of reliability of the out of court statement

Exceptions to the Hearsay Rule24 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

More Exceptions to the Hearsay RuleAdmissions/Statement against

Interest Business RecordsRecorded 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

Statements for Purposes of Medical DiagnosisStatements for purpose of a medical diagnosis

or treatment by a person seeking the diagnosisOr 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

Child HearsayException 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

Does this apply to child witnesses of the act?Statutory exception specifies it must be a

victimChild 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

ProcedureFiling 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

Child Hearsay HearingFocus of the hearing:

◦What was said◦What were the circumstances

surrounding that statementMust be done out of the jury’s

presenceGenerally (and preferably) done

prior to the trial

Witnesses Commonly UsedFamily members and FriendsLaw EnforcementMedical StaffDCF workersForensic Interviewers

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

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, VideosReview any recorded statementsMeeting with Prosecutor

Meeting with ProsecutorOpportunity 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

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

Reliability FactorsState v. Townsend (635 So. 2d 949, (Fla.

1994)) establishes non-exclusive list of criteria to determine reliability:

Spontaneity of the statementWas the statement made at the first

available opportunity following the incidentWhether 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

Reliability Factors Cont.Did the child use terminology

unexpected of a childThe motive or lack thereof to fabricate

the statementThe ability of the child to differentiate

between fantasy and realityThe vagueness of the allegationContradictions in the statementPossibility of influence on the child in

the case of a domestic dispute

TrustworthyWho is the statement made toDoes this witness have a stake in

the outcomeIs this person trained in

interviewing

Testimony at Child Hearsay HearingRelaxTalk to the JudgeListen to the questionAnswer the questions that are

askedMake sure you understand the

questionDon’t argue with Defense

Attorneys

Testimony at the Child Hearsay HearingThree goals

◦Convey what was said◦Establish it was reliable◦Establish that the witness is

trustworthyHow to do that

◦Witness background and training◦Circumstances surrounding interview◦What was said (or video)

Cross-ExaminationGoal of Cross Examination is to

undermine credibilityFocus 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

Handling Cross ExaminationBe respectful and polite to

everyone in the courtroom - especially the defense attorney

Maintain poise and controlLISTEN TO THE QUESTIONStay on pointDon’t play games with the

attorney

Confrontation Clause6th Amendment to the US

Constitution Guarantees:

◦Speedy trial by jury◦Counsel ◦To be confronted by the witnesses

against themDoes not necessarily require face

to face confrontation

Crawford v. WashingtonTestimonial 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

Use of Child Hearsay in TrialWitnesses can testify about what the child

told themVideo interview can be playedCan be used even if inconsistent with trial

testimonyCan 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 dismissedJust because it was admitted does not

necessarily mean that it will be used

Case Study: State v. Darren ButlerVictim 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

Case Study: State v. Darren ButlerDetails 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

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)

Case Study: State v. Darren ButlerTrial

◦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

Case Study: State v. Andrew KarelasVictim is abused by Mother’s

Boyfriend at a Lake HouseIndependent 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

Case Study: State v. Andrew KarelasChild is interviewed for hours by law

enforcementChild will not disclose any sort of

penetrationLaw 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

Case Study: State v. Andrew KarelasDefense 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

What is Williams Rule?Florida Statute §90.404Evidence 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)

Brief History of Williams RuleTraditional 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

Brief History of Williams RuleOther 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

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

ProcedureFiling 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”

The Court’s RoleMust 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.

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

Case Study: State v. Susan Creecy and David HortonTotal of four separate Williams Rule notices

filedIncluded allegations of crimes against victim

in other StatesIncluded 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

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

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

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