Summary
The Washington Supreme Court held that, before finding a child victim unavailable for purposes of admitting hearsay under RCW 9A.44.120, a trial court must consider whether the child could testify by closed-circuit television under RCW 9A.44.150 when evidence suggests that alternative testimony may be possible. The court concluded that the trial court abused its discretion by failing to make that determination and that the resulting confrontation-clause error was not harmless. The court reversed the Court of Appeals and vacated the conviction.
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Practice areas
Questions Presented
- Whether the trial court could find the child victim unavailable for purposes of RCW 9A.44.120 without considering closed-circuit television testimony under RCW 9A.44.150 when evidence suggested she might be able to testify in an alternative setting.
- Whether admission of the child victim's hearsay statements violated the federal Confrontation Clause.
- Whether the confrontation-clause error was harmless beyond a reasonable doubt.
Holdings
- Before finding a child victim unavailable for purposes of admitting hearsay under RCW 9A.44.120, the court must consider the use of closed-circuit television under RCW 9A.44.150 when evidence indicates that the child may be able to testify in an alternative setting. If equipment is not readily available, the court may also consider whether obtaining outside equipment would be financially unreasonable.
- The confrontation-clause error was not harmless beyond a reasonable doubt because, apart from the improperly admitted hearsay statements, there was no evidence sufficient to support the conviction.
Key quotations
“We hold that the trial court abused its discretion in admitting the hearsay statements without determining that J.S. could not have testified via closed-circuit television where there was testimony that J.S. may have been able to testify by that method.” (122)
“We therefore hold that before a court can find a child victim unavailable for the purpose of admitting his or her hearsay statements under RCW 9A.44.120, it must consider the use of closed-circuit television pursuant to RCW 9A.44.150 if there is evidence that the child victim may be able to testify in an alternative setting.” (140)
Factual background
J.S., a five-year-old child, reported to several adults that Smith, her mother's boyfriend, had sexually abused her. When J.S. saw Smith in the courtroom, she became frightened, cried, and stopped speaking. A social worker testified that J.S. might be able to testify in a quiet setting with trusted people or without exposure to Smith, while her therapist testified that J.S. might not be able to testify in open court and that video testimony might work. The trial court did not pursue closed-circuit television because the courtroom lacked the equipment and admitted five hearsay statements instead.
Procedural history
The trial court admitted five of the child victim's six out-of-court statements under RCW 9A.44.120 after finding her unavailable, and a jury convicted Smith. The Court of Appeals, Division Two, affirmed in a split decision. The Washington Supreme Court granted review, reversed the Court of Appeals, and vacated the conviction.