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Univ. of South Carolina School of Law

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Monday, May 17, 2010

Tender Mercies: Why Evidence of Ununsual Maturity Shouldn't Be Enough To Rebut Preumption That Children Under 12 Are Of Tender Years

Like the vast majority of states, Mississippi has a "tender years" exception to the rule against hearsay. Specifically, Mississippi Rule of Evidence 803(25) provides an exception to the rule against hearsay for

A statement made by a child of tender years describing any act of sexual contact performed with or on the child by another is admissible in evidence if: (a) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a witness: provided, that when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

In its recent opinion in McCrory v. State, 2010 WL 1855853 (Miss.App. 2010), the Court of Appeals of Mississippi noted that "[t]here is a rebuttable presumption that a child under the age of twelve is of tender years." So, when can this presumption be rebutted? As far as I can tell, no Mississippi court has conclusively answered that question, but I don't like what at least one Mississippi court has intimated.

Hayes v. State, 803 So.2d 473 (Miss.App. 2001), actually involved a thirteen year-old victim, L.G. L.G. was allegedly statutorily raped by Hayes and told an officer about the alleged act. The prosecution used this statement to prosecute Hayes. Hayes thereafter appealed, claiming, inter alia, that L.G. was not a child of tender years, meaning that her statement to the officer was not admissible under Mississippi Rule of Evidence 803(25).

Because L.G. was not under the age of twelve, there was no rebuttable presumption that L.G. was of tender years, but the trial court was still free to reach this conclusion, and the Court of Appeals of Mississippi could only have reversed for abuse of discretion.

Hayes argue[d] that L.G.'s testimony concerning her responsibilities at home and school showed she was mentally mature; thus, she did not fit into this tender years exception. With L.G.'s testimony, the attorneys asked questions that were intended to enlighten the court as to L.G.'s mental maturity. L.G. affirmed she knew the difference between a truth and a lie, that she helped both her grandmother and great grandmother with household chores (she lived with each at different times), and that she cares for her one year old sister and babysits her often. L.G. also was questioned concerning her school habits and the time she leaves and arrives home from school, and she was embarrassed when asked about physical parts of the body and when she was questioned concerning the incident at issue.

The Court of Appeals acknowledged these arguments but ultimately affirmed, concluding that

Those present when L.G. testified were able to evaluate her demeanor and behavior. We are not so fortunate to have been present; this is why our Court is allowed to reverse a trial judge only if we find he abused his discretion in such a situation where an evaluation of witness's demeanor is essential. On paper, those facts brought out on L.G.'s testimony seem reflective of things a mature adolescent would say. Reading the transcript further, though, the district attorney commented that from L.G.'s physical demeanor, "it appeared rather obvious that this is a child of tender years" and "I believe that her testimony, in toto, and her demeanor, in toto, before this Court demonstrate that she is an immature person. She may be mature appropriately for her age, but she is not as mature as an adult. She is certainly a child. She certainly comes across as a child, and is immature in the sense of being child of tender years." The judge agreed. Since we are not the triers of fact, we must note that Hayes has presented us with no evidence that the judge abused his discretion and we will not reverse without such evidence.

In other words, Mississippi courts look at the mental and emotional maturity of a child in determining whether she is of tender years. The implication would thus seem to be that the rebuttable presumption that a child under the age of twelve is of tender years can be rebutted by evidence that the child is mentally or emotionally mature beyond her years. So, does this make sense? I don't think so. Let's look at the reasons that states have tender years exceptions. According to Lynn McLain in Children are Losing Maryland's "Tender Years" War, 27 U. Balt. L. Rev. 21, 25 (1997), states have tender years exceptions for six reasons

(1) child abuse-- physical, sexual, and emotional--is a serious, widespread problem in the United States; (2) young children are particularly helpless, and they are unable to extricate themselves from seriously abusive homes or other environments without adult assistance; (3) effective remedial action cannot be taken without identifying the abuser, who is usually known only to the child and, sometimes, to someone who colludes with or covers up for the abuser; (4) for reasons explained by developmental psychology, very young children are often ruled incompetent to testify at trial, although they may have made reliable, concrete out-of-court statements at an earlier time; (5) even if permitted to testify at trial, young children are unlikely to be able to testify to an earlier event with the degree of memory that an adult could, and they are easily confused by a deft cross-examination; and (6) pre-existing, "firmly rooted" hearsay exceptions have been inadequate to permit the admission of all reliable out-of-court statements made by children.

So, do any of these reasons explain why Mississippi's tender years exception should not apply to the mentally and emotionally mature nine, ten, or eleven year-old? Even if a child is mature, a sexual act against her is still clearly child abuse, meaning that the first reason doesn't provide an explanation. I'm not sure that all of the maturity in the world is going to help a kid of these ages to be able to extricate herself from an abusive environment without adult assistance, meaning that the second reason doesn't provide an explanation. The third reason doesn't provide an explanation either because the abuser is still likely only known by the abuser and possibly a confidante. The fourth reason could provide an explanation in states whose tender years exceptions require that the child be unavailable to testify at trial. The language of Mississippi Rule of Evidence 803(25), however, makes clear that it applies even if the child testifies at trial, meaning that this reason doesn't provide an explanation. 

The fifth reason provides the only possible explanation. Perhaps an especially mature nine, ten, or eleven year-old could testify more effectively than her average counterpart, marginally decreasing the necessity of applying the tender years exception. But do we really think that even the most mature child of this age will be able to provide compelling enough testimony that the exception is not needed? I certainly don't think so. Moreover, this reason doesn't apply when the child does not testify at trial, a situation that is still covered by the language of Mississippi Rule of Evidence 803(25). Finally, the sixth reason doesn't provide an explanation either because if the state is relying upon the tender years exception, it means that no other hearsay exception applied.

Now, as I said before, as far as I am aware, no Mississippi court has found the rebuttable presumption rebutted, and I am not sure that a court would focus upon mental and emotional maturity in reaching such a conclusion. That said, Mississippi courts clearly have indicated that the presumption is rebuttable, and they have certainly intimated that evidence of unusual maturity is highly relevant to tender years determinations. Based upon the above analysis, I hope that the Mississippi presumption is rebuttable in name only or at least that a Mississippi court does not eventually find the presumption rebutted based upon an unusually mature nine, ten, or eleven year-old who is allegedly the victim of sexual abuse.

-CM

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