Court Improperly Admitted Videotaped Interview of Child Accuser for Lacking Foundation

The District of Columbia Court of Appeals has reversed a conviction for child sexual abuse after the trial judge improperly admitted a videotaped interview of the child accuser. The appellate court found the video lacked proper foundation, as the child witness did not outright refuse to testify.

The defendant was charged with multiple counts of child sexual abuse involving two of his stepdaughters and one of the girls’ friends. The stepdaughters were both interviewed by a child advocacy center. One of the stepdaughters was reluctant to testify, and only did so after marshals brought her to the courthouse.

The prosecutor asked the stepdaughter to start with the first time she had been abused. She insisted that she did not want to talk about it. She did testify that she was interviewed by the child advocacy center and that she had told the truth during the interview. The prosecution then played video of that interview, and the stepdaughter later reaffirmed that she was truthful in the interview. The defendant was convicted of child sexual abuse.

On appeal, the defendant argued that it was error to admit the videotaped interview. The appellate court agreed, holding the government failed to lay a sufficient foundation for admitting the video.

The appellate court found that the “government resorted too quickly to playing the video.” The pre-video testimony consisted of the stepdaughter stating that she did not want to talk about the alleged abuse because “it’s disturbing” and that she did not “want to keep bringing it back up.” She was only asked once to describe the first abuse before the government moved to admit the video.

A D.C. attorney has several options when faced with a reluctant witness including urging the witness to testify, the judge urging the witness to testify, or asking the judge to hold the witness in contempt. The appellate court reasoned that a witness cannot be said to be refusing to testify if the attorney did not resort to at least one of these options.

While the court noted that eliciting testimony about sexual abuse is a delicate matter, it found here that the government gave up too easily. Furthermore, the stepdaughter eventually answering the remaining questions directed towards her on direct and cross-examination. As such, the court found the stepdaughter did not outright refuse to testify, and it was error to admit the video.

The court found the admission of the videotape was prejudicial because it was the only evidence of abuse for one count of abuse. The court also reversed all other counts of abuse relating to the stepdaughter because the video likely bolstered her testimony, which, “at best… lack[ed] in detail.” The court affirmed the convictions relating to the other stepdaughter and the friend.

Washington State law also allows in evidence, in some situations, an out-of-court statement by a child that alleges child abuse. The Washington State standards are different from those in the District of Columbia. The basics of Washington State law on this appear at Revised Code of Washington Section 9A.44.120.