On State v. Swan, (1990) 114 Wash. 2d. 613, 790 P. 2d. 610
See also www.antipeonage.0catch.com
This infamous case pitted two giant forces against each other: 1) Concern on the part of the authorities and of day care workers and child welfare professionals to put a stop to child sexual abuse they believed was happening, part of this concern is genuine, part is for the prerogative of the agencies involved and in justifying their budgets. And 2) The concern that constitutional civil liberties were being violated and that two innocent parents were being railroaded. This decision was reached by the Supreme Court of Washington before relatively libertarian justices such as Charles W. Johnson and Richard Sanders were elected. Indeed, Justice Keith Callow was defeated shortly after this opinion by Charles W. Johnson, who has been re-elected twice since.
In my analysis, I will focus solely on how the Court ruled in the issue of admissibility of hearsay testimony under RCW 9A.44.120, in light of the traditional reasons for hearsay rules and the Sixth Amendment Confrontation Clause and the corresponding clause in Article I Section 22 of the Washington Constitution. Please remember that a traditional theory of constitutional law is that neither Congress nor state legislature may by statute deprive a person of any right guaranteed by the United States Constitution, and that the Washington Legislature may not by statute deprive any person of any right guaranteed by either the United States Constitution or the Washington Constitution. Article I Section 22 of the Washington Constitution explicitly provides that a defendant in a criminal case has the right to meet witnesses against him face to face. Yet the Swan Court seemed more concerned about giving force and effect to a statute than it did to Article I Section 22.
To illustrate the importance of this right, please bear with me while I set forth a hypothetical case:
Richard and Paul were friends for a long time. However, their relationship deteriorated, now they get along like nitric acid and copper. After a loud argument, Paul attacked Richard with a baseball bat. Richard attempted to evade the bat, aimed for his head, and the bat hit his shoulder instead. The police arrive. The police can testify from personal knowledge that they saw Paul with the bat in hand and that Richard had a badly swollen shoulder and was in obvious pain. However, none of the officers witnessed the swing of the baseball bat. Richard tells the police that Paul clobbered him with the baseball bat. The police arrest Paul and call an ambulance for Richard.
Exactly what testimony is admissible?
Ordinarily, all personal knowledge testimony by competent witnesses is admissible. Personal knowledge testimony is what you saw with your own eyes and observed with your other senses. The police have such knowledge of Paul holding the baseball bat and of Richard with a swollen shoulder and obvious pain. While they have personal knowledge that Richard said Paul swung the bat, they have only hearsay knowledge that Paul swung the bat into Richard's shoulder. Richard survives and has a sound mind, albeit with anger toward Paul for having attacked him with the baseball bat. Because Richard is competent to testify and is available as a witness, ordinarily the police may not testify as to what Richard told them to establish in court that Paul assaulted him with the bat. Not a problem for the prosecution, they simply call Richard to the witness stand, the jury observes the cast around Richard's shoulder and he tells them that Paul attacked him with the bat. In these circumstances, the jury would likely convict Paul of Assault 2. However, one incentive for the police to accurately record Richard's statements is that while they establish probable cause necessary to make the arrest, once having made the arrest, they need Richard's testimony to convict Paul. They cannot establish the necessary proof by their hearsay testimony of what Richard told them. Should Richard testify at trial that George is the one who assaulted him with the bat, and then left, and Paul picked up the bat in time for the police to arrive, the jury may acquit Paul if the judge does not immediately dismiss the case in the interest of justice.
In other words, the hearsay rule is our protection against a dishonest cop who for whatever reason has it in for Paul.
Nevertheless, exceptions to the hearsay rule and the right to confront witnesses have evolved. One such exception is where the witness is unavailable. Instead of hitting Richard in the shoulder, the bat hits him in the head. The police arrive, see Paul holding the bat and Richard with blood pouring from his head. Richard is alive and conscious. He tells the police that Paul clobbered him with the bat. The police arrest Paul and call an ambulance for Richard. However, while in the ambulance, an artery damaged by the bat blows up in Richard's brain and sends him on to the Next World.
Where the witness is unavailable to testify, then hearsay testimony, if corroborated so as to have a reasonably high probability of accuracy and truthfulness, may be admitted. Police ordinarily have no reason to inaccurately record Richard's statement that Paul clobbered him with the bat. Evidence that the police officer had it in for Paul would go to impeachment, to perhaps place a reasonable doubt in the minds of the jury that the officer is inaccurately testifying as to what Richard said before he died in the ambulance. But such hearsay testimony would be admissible, corroborated by the presence of the baseball bat in Paul's hand and Richard's blood on the bat, because Richard is no longer available to testify. If Paul avers that George swung the bat and fled, he might need to present evidence that places George at the scene of the crime.
State v. Swan actually makes a finding similar to this situation. Issue Three is whether the trial court, being King County Superior Court with Judge Anne Ellington (presently serving on the Court of Appeals, Division One), erred in finding the child R.T. incompetent to testify. R.T. is the neighbor girl, B.A. the daughter of the Swans. Each child is three years old at the time of these events and the trial. They would be about 19-20 years old today. The child was found incompetent to testify at trial, therefore unavailable as a witness. Because the child was found incompetent to testify, the court then properly considered admitting hearsay testimony by the day care center's owner Cindy Bratvold of what the child told her. Swan, at 114 Wash. 2d. 645-647.
But here is the rub of this whole case!
In the hypothetical example above, Richard is an adult fully competent to testify as to what happened to him, right up until the damaged artery explodes. He has an understanding of the obligation to speak the truth on the witness stand if he lives that long, and has such an understanding when telling a police officer who whacked him with what weapon. He would have to have some motive to lie about such a thing when suffering from the extreme pain caused by such an event. He has the necessary mental capacity at the time of the occurrence to receive an accurate impression of it (in his mind, not just his skull). When speaking with the police officer, he has sufficient memory to retain an independent recollection of the occurrence. He has the capacity to express in words his memory of the occurrence. And he has the capacity to understand simple questions about it, which the police officer may ask while they wait for the ambulance to arrive and while giving first aid.
Yet in Swan, R.T. was found to not have this capacity: 1) She was unable to understand the obligation to tell the truth. and 2) She was unable to remember accurately past events. She even said that she had been to the court room 40 times before, when in fact it was her first time there.
So this begs the obvious question: If R.T. was incompetent due to an inability to accurately remember events and to understand the obligation to speak the truth, how was she competent to give such testimony to a day care owner? If her direct testimony was not admissible because of such incompetence, how then is Ms. Bratvold's testimony of what R.T. told her admissible? Because the interview in the court of R.T. wherein the girl was found incompetent was held outside the presence of the jury, how could the jury make its independent judgment of the accuracy of WHATEVER testimony this same child is reported by the daycare owner to have told her? Indeed, how could the jury evaluate the truthfulness of the daycare owner's recitation of VERY DETAILED AND EXPLICIT recollections of horrible sexual acts perpetrated upon R.T. and upon B.A. in the presence of R.T. as told by R.T. to the day care owner, without viewing the child when being interviewed as to what color her dress was?
This very issue was addressed on December 12, 2002 by the Supreme Court of Washington in State v. Smith. Discussion on Smith below.
B.A., the Swans' daughter, simply refused to answer questions, and was thus found incompetent to testify on that basis.
The other part of this analysis, is whether the hearsay testimony of what each child told the witnesses is used to CORROBORATE what the other child said. This is hearsay testimony being used to corroborate hearsay testimony. Swan, at 114 Wash. 2d. 624-634.
Think about it. If the hearsay testimony of what a child said to a witness is inadmissible without corroboration when standing alone, how then can it become admissible by hearsay testimony of what another child said if it too is inadmissible standing alone? This is a classic case of Zero plus Zero being found to add up to something more than Zero!
That is NOT what my First Grade teacher told me! She told me that 0 + 0 = 0. I do not believe she lied when she told me this! But then she was never a judge in our court system.
The rest of the corroboration analysis is based upon evidence, while not strictly hearsay, that is not entirely probative or relevant to the issue of whether the Swans abused the children. B.A.'s masturbatory behavior, 114 Wash. 2d. 633-634, even if unusual, does not necessarily mean that she was abused. Many different things could cause such behavior, including the child's self awareness of her sensory pleasure. The unusual greeting, 114 Wash. 2d. 634-635. Kids often invent unusual greetings. R.T.'s behavior with an anatomically correct doll, 114 Wash. 2d. 636-637. Well gee whiz! For the first time in her life a little girl is presented with a doll that has a penis. She grabs the penis. What a surprise! Like kids don't grab any toy presented to them by whatever handle they find! The problem with precocious sexual knowledge must be considered in light of the enormous amount of entertainment once classified as pornographic now publicly available, even back in 1986! If there is a television set in the house, chances are the children will have witnessed at least one scene of simulated sexual activity. Give them anatomically correct dolls and they may well have such dolls do more then kissing. Indeed, with commercially available dolls, they may wonder about poor Ken. What does Barbie see in him? That he's SAFE? Precocious sexual knowledge is just not corroborative of the proposition that the child was sexually abused, given the current cultural climate.
R.T's complaints of physical pain was not medically substantiated. That means no testimony by any health care provider was presented that the child suffered any physical ailments that might be the result of sexual abuse. What Cindy Bratvold testified that R.T. told her (keep in mind that R.T. could not accurately testify as to what color her dress was) would no doubt cause substantial physical injuries that a health care provider would observe. See 114 Wash. 2d. 625 for the horrendous story as related by Ms. Bratvold of what R.T. told her. In 1986, juries were not yet hip to what is being done by prosecutors in cases like this. This jury evidently believed the daycare owner's testimony of what the child told her. However, they did not see a reasonable doubt in the LACK OF EVIDENCE, i.e., medical substantiation of the injuries to the vagina as allegedly described to Ms. Bratvold by R.T. If it made her bleed, a physician or nurse would observe such an injury.
That is a very important instruction, jurors. While absence of evidence may not be evidence of absence, it is a source of reasonable doubt. The judge will instruct you on that! Too many juries seem to miss the concept behind of this instruction.
The most serious corroborating evidence presented is the examination of R.A. by the Swans' family physician, Dr. Lawrence Parris, at 114 Wash. 2d. 638-639. However, this testimony is related as having observed the child take an unusual position and that blood vessels were more dilated than usual. He observed a dimension as "1 to 1.2 centimeters". The opinion does not relate whether the physician visually estimated the dimension, Thinking Metrically (ordinarily Americans might say "3/8 to 1/2 inch" to estimate the same dimension), or whether the physician measured the dimension with a ruler. Another expert witness testified that the normal size in a three year old is ".4 cm". We might call that 4 millimeters or 0.16 inch or 5/32 inch.
Still, as damaging as such testimony may be, such symptoms can be caused by infections, a stinging insect, an attack by a feral animal such as a rat, a bad dream in conjunction with such infection, stinging insect, or animal attack, and as likely lead to the fearfulness observed as would sexual abuse.
In the final analysis, were the Swans innocent parents railroaded by a combination of bad luck and overzealous officials? Or were they guilty of the horrible crimes for which they were charged and convicted?
While I am inclined to believe they were innocent parents railroaded, the physician's testimony gives me cause for concern. Something caused the swelling and redness observed by Dr. Parris. While I do not trust the testimony of any other witness as recited by this Supreme Court of Washington opinion, I seriously doubt that he has any reason to tell anything other than the truth.
But is it proof beyond reasonable doubt? My conclusion, no. The jury should have been afforded the opportunity to consider the evidence presented by Dr. Parris without all of the damaging and inadmissible hearsay testimony. The jury should have been allowed to see the children while being interviewed as to their ability to tell the truth, to understand the need to tell the truth, and to accurately recollect the truth, if they were to be presented with hearsay testimony as to what these same children told day care workers and child welfare workers.
The only evidence properly admitted that supports the Swans' convictions with regard to their daughter is the testimony of Dr. Parris, and a rational trier of fact cannot find it to be proof beyond reasonable doubt.
Their was no admissible testimony submitted as to R.T., the daughter's friend. Because the daughter's friend was found unreliable in her ability to recollect the truth, she could not be found to have accurately recollected it when speaking to Ms. Bratvold. The charges with respect to R.T. should have been dismissed out of hand.
Because of the December 12, 2002 decision in State v. Smith, the Swans may now have grounds to seek vacation of the criminal convictions against them. While the Swan case was being considered by the Supreme Court of Washington, and during the atmosphere of controversy surrounding the Swan case, the Legislature added RCW 9A.44.150 to the statute books in Laws of Washington 1990 chapter 150. The Legislature actually did something intelligent, after chewing on the problem of children who witness crimes, including crimes against themselves, and then clamming up and refusing to testify while in a large courtroom filled with people, including the defendant and his counsel. But unlike R.T., the child understands the need to tell the truth and is capable of remembering events accurately. This bill provides for the child to give testimony in a small room with only a few people, including the judge, but with a closed circuit television system that allows the defendant and the jury to witness the child's testimony and to observe the demeanor of the child while testifying. Had this been done in 1986, the Swan jury would have had a crucial observation of the inability of R.T. to remember recent events and her lack of understanding of the need to tell the truth when giving such testimony. With this, they could have better weighed the hearsay testimony of Ms. Bratvold of what R.T. told her. While in Smith, the Supreme Court ruled that RCW 9A.44.150 provided a reasonable alternative to render available the witness and to meet the defendant's constitutional right to confront the witnesses against him, that alternative has been available since television technology became widely available during the 1950's. A statute is not necessary to provide for such a system if the defendant agrees to it or asks it as an alternative to having to confront hearsay testimony without some way of corroboration with direct testimony or some evidence that the child was unable to give testimony, either in a courtroom or to the hearsay witness. The Sixth Amendment has set forth this right for much longer than that, and that is ultimately the right the Smith Court ruled upon. Thus, with the change in legal climate affected by Smith, the Swans could move to vacate the original convictions.
The consequences of State v. Swan go far beyond the destruction of what had appeared to be a normal and prosperous middle class family, and the lives of Mr. and Mrs. Swan. It cites numerous decisions of other states' courts that have grappled with these issues and its findings are cited to support relaxation of the hearsay rule in numerous cases around the nation, even by the courts of other nations. It set the stage for what has since happened in Wenatchee, when extremely flimsy evidence, created out of whole cloth by overzealous officials fully exploiting the child hearsay exception to the hearsay rule, to railroad over forty people, who, unlike the Swans, are mostly poor and unable to mount a proper defense, of an incredibly huge number of child abuse charges. Most people are now satisfied that only abuse perpetrated in Wenatchee upon the children involved was by the authorities in coaching or coercing testimony contrary to the truth.
People are afraid of CPS. They are afraid to call the police if there are children involved. Professionals legally required to report suspicions of abuse to CPS often do not because THEY DON'T TRUST THE SYSTEM.
And because of that, children who really are abused suffer.
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