Competency Attack Spoils Appeal

State of Washington v. Perez (2007)

The Washington Court of Appeals has affirmed a conviction despite error in the admission of child hearsay. The decision, State of Washington v. Perez, 151 P.3d 249 (2007), shows the hazard the defense runs when it attacks a child’s competency at trial.

The defendant was convicted of reckless endangerment for firing a BB gun at a target held by S., a four-year-old child. Among the evidence against him was the child’s report of the event to a social worker investigating the case for the Washington Division of Children and Family Services. The trial court admitted these statements under the hearsay exception for statements made for medical diagnosis or treatment.

The court of appeals found that S.’s statements to the social worker were not made for a medical purpose. Admitting them on that basis was error.

But the court noted the defense’s “efforts to impeach S. by persistently trying to show that S. could not distinguish the true from the false and that nothing S. said should, therefore, be believed.” This, the court said, entitled the prosecution “to rebut the inference by the defense that S. was incompetent to testify. The [trial] court, therefore, properly admitted … the child’s statements” as prior consistent statements, not subject to the rule against hearsay.

Had the defense merely challenged S.’s competency in a pretrial hearing, that would not have justified admitting at trial his out-of-court statements. It was carrying the attack on S.’s competency into the trial itself that opened the door to those statements. While this may have been the best defense strategy, it came with a price.