Friday, February 20, 2009
Blue Kentucky Girl: Kentucky Court Finds That Witness' Incompetence Extends To Her Hearsay Statements
The recent opinion of the Court of Appeals of Kentucky in Harris v. Commonwealth, 2009 WL 350615 (Ky.App. 2009), reveals that if a witness is incompetent to testify at trial, her pre-trial statements also typically won't be admissible under any hearsay exception.
In Harris, Bridget Harris appealed from her conviction for first degree criminal abuse. That conviction was based in large part on the allegations of her five year-old child, A.H., who claimed that Harris burned her with a cigarette. A.H., however, did not testify to these facts at trial because the trial court deemed her incompetent to testify under Kentucky Rule of Evidence 601(b), which indicates that:
A person is disqualified to testify as a witness if the trial court determines that he:
(1) Lacked the capacity to perceive accurately the matters about which he proposes to testify;
(2) Lacks the capacity to recollect facts;
(3) Lacks the capacity to express himself so as to be understood, either directly or through an interpreter; or
(4) Lacks the capacity to understand the obligation of a witness to tell the truth.
In deeming A.H. incompetent to testify, "the trial court expressed reservations that A.H. met any of the minimal qualifications set out in KRE 601(b), with the exception that the witness demonstrated the ability to perceive." Specifically, in reaching this conclusion, the trial court noted that:
A.H. gave inconsistent, contradictory and disjointed accounts of the incident. At one point, A.H. denied that Bridget had burned her, stating that she had burned herself on a stove. Indeed, she tended to agree with whatever question was asked of her. Although A.H. could give responsive answers to biographical questions, she demonstrated little practical understanding about the obligation to tell the truth. Moreover, A.H.'s statements at the competency hearing clearly showed that she was unable to accurately distinguish between reality and imagination.
So, how did A.H.'s allegations make it to the jury? Well, A.H. made the burning allegations to nurse practitioner Stacey Smallwood and social worker Patricia Reynolds, and, after the trial court deemed A.H. incompetent to testify, it permitted Smallwood and Reynolds to testify about A.H's allegations pursuant to Kentucky Rule of Evidence 803(4). Under that Rule, there is an exception to the rule against hearsay for:
Statements made for purposes of medical treatment or diagnosis and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to treatment or diagnosis.
According to the Court of Appeals of Kentucky, the problem with this conclusion is that a child's testimonial incompetence generally extends to her hearsay statements. In other words, a witness' incompetence to testify at trial generally renders her incompetent to "testify" as a hearsay declarant. Indeed, the court noted that in B.B. v. Commonwealth, 226 S.W.3d 47 (Ky. 2007), the Supreme Court had rejected the exact same route of admissibility that the trial court approved in Harris.
And while the court in Harris noted that the court in B.B. merely found that a declarant's incompetence is a consideration in determining the admissibility of the hearsay statements, it found that based upon A.H.'s clear inability to testify at trial, her statements could not be admitted under Kentucky Rule of Evidence 803(4)