Georgia Supreme Court Expands Scope of Child Hearsay Statute

The decision in Bunn v. State marks yet another change in the interpretation of O.C.G.A. § 24-3-16, which has now come full circle. When enacted in 1986, the statute provided that only out-of-court statements made by children under age 14 “describing any act of sexual contact or physical abuse performed with or on the child” could be introduced by third parties at trial. In the 1994 case of Thorton v. State, the Georgia Supreme Court refused to admit statements made by a child who claimed to have observed the defendant physically abuse two other children. In response, the Georgia legislature added a phrase to the Child Hearsay Statute in 1995 explicitly permitting the admission of out-of-court statements of children who were merely witnesses to abuse. In Woodward v. State, the Georgia Supreme Court struck down this amendment, prompting the Georgia legislature to remove the language added by the 1995 amendment. In its decision this week, the Georgia Supreme Court rejected its reasoning in Woodward and paved the way now for the admission of this evidence at trial.

But why the flip-flop? In Woodward, the Georgia Supreme Court held that it constituted an equal protection violation to determine the admissibility of hearsay from child abuse witnesses based simply on the witness’s age. The court remarked that the public policy rationale of shielding child victims of abuse from further trauma on the witness stand did not extend to children who only witnessed abuse. Also, the court found it would be an “illogical anomaly” to admit hearsay statements of children who witnessed sexual abuse when statements made by children who witnessed other types of violent crimes were not admissible.

Rejecting its previous reasoning, the Bunn court reasoned that the shielding rationale does in fact extend to children witnessing sexual or physical abuse as the courtroom is a “scary place” for any youth. To counter the issue of equal protection, the Georgia Supreme Court noted that the State’s interest in protecting young people from exposure to abuse has resulted in several statutes that treat defendants differently based on the age of witnesses to their crimes.  For example, the Cruelty to Children statute which prohibits the commission of an act of domestic violence in the presence of a child.

Although the Bunn decision opens the door to a potential new source of evidence in sex offense cases, Georgia criminal defense attorneys still need to defend against it in the same way we do with the more traditional child hearsay. Children witnessing abuse must still be “available to testify” in the proceedings and the State must, in fact, call the child to the stand to testify and face cross-examination by the defense. Additionally, the circumstances surrounding the out-of-court statement must still provide a “sufficient indicia of reliability” to be admissible. Although no hearing is necessary to establish reliability before the statement may be admitted, defense attorneys may file a pretrial motion requesting that such a determination be made by the court prior to trial. Finally, the defense can utilize experts to question the reliability of how the statements were made by and obtained from the child witnesses.

Rules regarding child hearsay, however, are likely to change once again as Georgia’s complete overhaul of the evidence code is scheduled to be unveiled in 2013.