State v. Brousseau (2011)
The Washington Supreme Court has found no error in a trial judge’s refusal to hear testimony from a child complainant at a hearing on her competency to testify. It therefore affirmed convictions of first-degree child rape and child molestation. State v. Brousseau, ___ Wn.2d ___, 259 P.3d 209 (2011).
One lesson of the case is that a party whose pre-trial challenge to a child’s testimonial competency fails should renew the challenge at trial to preserve error.
Brousseau challenged the competency of the seven-year-old girl who said he had sexually assaulted her. At the pre-trial competency hearing, the defense presented the testimony of a psychologist, Dr. Scott Mabee; he had interviewed the child regarding her competency. When the defense then sought to call the girl herself to the stand, the judge did not allow that, finding Dr. Mabee’s testimony sufficient to show her competent to testify.
After conviction, Brousseau appealed the judge’s refusal to hear from the child at the competency hearing. He asserted the judge had thereby abused his discretion and had denied due process of law. The court of appeals certified the case to the supreme court, which found no abuse of discretion or denial of due process.
The supreme court began by deciding that a party’s bare challenge to a child’s testimonial competency was not sufficient to require the child to testify at a pre-trial competency hearing. In support, the court cited its recent decision in State v. S.J.W., 170 Wn.2d 92, 239 P.3d 568 (2010), (reported by Child Abuse Defense News here). In S.J.W., the court had said children, like adults, are presumed competent as witnesses. In Brousseau the court decided S.J.W. compelled it to reconsider the procedure for challenging a child witness’s competency.
The court noted that in federal court a party must make a threshold showing that a child is incompetent to testify before the court will examine the child. 18 U.S.C. Sec. 3509(c)(4). The court concluded that Washington law also requires some threshold showing of incompetency—some “red flag”—and that neither Brousseau’s challenge nor Dr. Mabee’s testimony had provided that.
The court went on to observe that the child’s trial testimony corroborated the trial judge’s conclusion she was competent and thus “cured any procedural error in the pre-trial competency determination.” The court cited decisions in other states (Colorado, Indiana, Nevada, North Carolina, and Ohio) that a child’s trial testimony could render harmless any pre-trial error in determining competency.
The four dissenting justices argued, though, that incompetent testimony could well escape detection at trial.
There is great risk at trial that incompetent testimony will not be revealed as such. If the prosecuting attorney explored competency issues during direct examination of a witness, such questions might violate the rule prohibiting the bolstering of a witness’s credibility before any attempted impeachment. Cross-examination is limited by the scope of direct examination and to issues of credibility, creating a real chance that questions relating to competency may never survive objection. Where there is concern, as there was in this case, about whether the witness has independent recall of the alleged incident, an incompetent witness might fluidly testify, all the while appearing competent despite serious deficiencies. This is especially true with child victim witnesses, for whom trial courts allow the broad use of leading questions on direct examination and common answers are simply “yes” or “no.”
State v. Brousseau, 259 P.3d 209, 223 (dissenting opinion).
In light of Brousseau, a challenge to a child’s testimonial competency may no longer be preserved for appeal unless it is renewed at trial. Brousseau was emphatic that a challenge may be renewed there:
[A] criminal defendant may renew a pre-trial competency challenge at trial. A child found competent at one point in time may become incompetent at trial, at which point, a litigant may raise an objection based on the child’s trial testimony… . Furthermore, “[i]f the court finds a witness competent to testify [in the absence of her testimony at a pre-trial hearing], but the witness’s incompetency becomes apparent during examination during trial, the testimony already given by the witness should be stricken and the jury should be instructed to disregard it.” 5A Karl B. Tegland, Washington Practice: Evidence Law and Practice § 601.2, at 294 (5th ed. 2007).
State v. Brousseau, 259 P.3d at 217.
I suggest renewing the challenge first at the close of the child’s direct examination, then again when the child leaves the stand, to maximize the opportunities for success both at trial and on appeal.
In further support of its decision, the majority cited research findings that “testifying more than once” leads to “increased behavioral disturbance” in abused children.
In response to this point, I commissioned a search of psychological literature for studies of the impact of multiple court appearances on child abuse victims. That search revealed that none of the studies has distinguished between children who detail their abuse in more than one appearance on the witness stand, and children who detail their abuse in one court appearance and whose other appearance is only to testify about the mundane subjects that make up a child’s testimony at a competency hearing. (Child witnesses in Washington are commonly questioned in competency hearings about such things as gifts they received for Christmas, how they dressed for Halloween, and whether they can recognize and condemn lying in a simple scenario about a missing cookie or piece of cake.) This difference in subject matter seems relevant to whether the additional testimonial appearance will increase the child’s behavioral disturbance.