Commonwealth v. Walter

Justice SAYLOR,

concurring.

I concur in the result reached by the majority, although my reasoning is somewhat different.

First, while I agree that competency to testify is not a prerequisite to the admissibility of out-of-court statements under the Tender Years Hearsay Act (“TYHA”), see Majority Opinion, at 453-54, and that in this limited sense the two issues are “distinct,” id. at 452,1 believe the two types of assessments may be interrelated in some circumstances. For example, competency requires" an understanding of the duty to tell the truth. See Pa.R.E. 601(b)(4). Absent such an understanding, the witness cannot logically be deemed credible.1 Similarly, for a declarant’s out-of-court statement to be admissible under the TYHA, the court must find, inter alia, that its content and circumstances provide sufficient indicia of reliability. See 42 Pa.C.S. § 5985.1(a)(1). To the extent the alleged victim has a generalized difficulty distinguishing fiction from reality, or believes it is normal and acceptable to lie, the reliability of his or her prior hearsay statements is called into question, as such statements may be the product of imagination or creativity. The present case is illustrative: at the in camera hearing, not only did A.W. give a number of nonsensical answers and maintain that it was a “good thing” to lie, but her testimony included fictitious elements, such as an affirmation that Appel-lee had brought a horse and a gorilla into her room to sexually abuse her. See N.T., Jan. 30, 2009, at 34, reproduced in R.R. 19a. It seems to me that these types of answers necessarily color any determination regarding whether her out-of-court assertions are sufficiently trustworthy to fall within Section 5985.1’s scope.

Another area of overlap concerns the possibility of manipulation and memory taint. In this regard, the value of such traditional indicia of reliability as spontaneity, descriptions unexpected of a child of similar age, and consistency in repetition may be compromised if the alleged victim has been coached or prompted to accuse the defendant by someone with ulterior motives. See State v. Robinson, 153 Ariz. 191, 735 P.2d 801, 811 (1987) (“If there is evidence of prior interrogation, prompting, or manipulation by adults, spontaneity may be an inaccurate indicator of trustworthiness.”); see also id. (“Consistency does not always guarantee trustworthiness; it could be evidence that the statements were rehearsed.”). Children are known to be susceptible to suggestion and can be misled by leading questions asked by an interviewer with a preconceived idea of what the child should disclose. See Idaho v. Wright, 497 U.S. 805, 812-13, 110 S.Ct. 3139, 3145, 111 L.Ed.2d 638 (1990); Commonwealth v. R.P.S., 737 A.2d 747, 749 (Pa.Super.1999) (“[CJhildren are susceptible to suggestions and fantasy.”).2 *458Courts have therefore recognized that children may change their answers to please the questioner, especially if the questioner is an authority figure, see State v. Foust, 920 S.W.2d 949, 952-53 (Mo.Ct.App.1996) (reciting a colloquy in which the alleged victim changed her answers to accuse the defendant of sexual abuse in response to a police officer’s leading questions), and that a child’s memory can become distorted, or “tainted,” in the process. Delbridge, 578 Pa. at 655, 855 A.2d at 35; see People v. Cardamom, 381 Ill.App.3d 462, 319 Ill. Dec. 479, 885 N.E.2d 1159, 1190 (2008). Thus, if it comes to light in a TYHA hearing that memory distortion might have occurred, this could impact upon the court’s evaluation of what might otherwise constitute indicia of reliability. Because an impaired memory can also cause a witness to be deemed incompetent to testify, see Pa.R.E. 601(b)(3), this is another example of how judicial determinations regarding competency, and the presence indicia of reliability, can logically interrelate.

As applied here, I find this to be a very close case in light of A.W.’s testimony at the Section 5985.1 hearing. However, I am ultimately able to agree with the majority that A.W.’s out-of-court statements were admissible for two reasons. First, five witnesses testified regarding different hearsay statements made by A.W., and the nature of the testimony was substantively consistent. Additionally, the statements were made in a substantially different context than the colloquy that occurred at the hearing, and there was no evidence of coaching, prompting, leading questioning, or manipulation. If these same hearsay statements had been made during an out-of-court question-and-answer exchange not initiated by A.W., I might reach a different conclusion.

I also have difficulty with the disposition of the second question accepted for review, insofar as the Court’s opinion may be read to discount the relevance, in the context of a TYHA assessment, of wider factors (such as corroboration), based on the particularized-guarantees-of-trustworthiness framework developed in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), abrogated by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990).

The TYHA does not speak in terms of “particularized guarantees,” but whether the time, content, and circumstances of the statement provide sufficient indicia of reliability. Although this wording may be similar to the language employed in Roberts and Wright, it is not identical and leaves open the question of what types of circumstances should be taken into account. Thus, I do not view the Supreme Court’s Confrontation Clause precedent as dictating that factors extrinsic to the statement itself “are not relevant to a [TYHA] reliability analysis.” Majority Opinion, at 455. For instance, I would not categorically exclude from a statement’s “circumstances” all evidence tending to either corroborate or disprove the accusations.3 Particularly where (as here) the declarant is very young and has a demonstrated *459difficulty understanding the importance of telling the truth or the difference between truth and fantasy, such a per se exclusion will, I believe, unduly weaken the trial court’s ability to filter out unreliable accusations. See generally Comprehensive Approach, 83 Colum. L.Rev. at 1751-52 (cata-loguing difficulties with children’s hearsay statements concerning alleged sexual abuse). In this regard, it is worth observing that a number of other states expressly require corroboration when the declar-ant is unavailable to testify, see, e.g., Ala. Code § 15-25-34; Miss.R.E. 803(25); 12 Oxla. Stat. § 2803.1; S.D. Codified Laws § 19-16-38; Wash Rev.Code § 9A.44.120, as did the Pennsylvania statute until that prerequisite was removed in 1996. See Act of Dec. 18, 1996, P.L. 1077, No. 161, § 5. To my mind this, at a minimum, demonstrates that corroboration can be relevant, and counsels in favor of viewing it as a legitimate circumstance for courts to consider when making an assessment under Section 5985.1(a) — again, particularly when there are substantial questions about the declarant’s veracity.

More fundamentally, I question whether Wright’s distinction between factors surrounding hearsay statements themselves, and other, extrinsic, features (such as the presence or absence of corroboration), see Wright, 497 U.S. at 822, 110 S.Ct. at 3150, is internally consistent as a matter of logic. For example, the Supreme Court clarified that evidence concerning the existence of a motive to fabricate is subsumed within the “circumstances surrounding the making of the [hearsay] statement ]” itself, id. at 826,110 S.Ct. at 3152, and therefore, implicates a particularized guarantee associated with the statement. However, a declar-ant’s motive to fabricate, or lack thereof, often cannot be discerned from a statement’s content or its immediately-surrounding circumstances, and must instead be gleaned through external factors, as the Commonwealth’s present argument demonstrates. See Brief for Commonwealth at 21 (arguing that A.W. had no motive to fabricate her accusations because her parents were married and not involved in a custody dispute). I fail to see why other extrinsic factors such as memory taint, manipulation, and corroboration, should stand on a different footing and, as such, should never be considered “circumstances” capable of supporting or detracting from reliability under Section 5985.1(a)(1).

Additionally, and as suggested above, to the extent a trial court’s confidence in a declarant’s truthfulness diminishes, the relevance and importance of such extrinsic factors becomes increasingly pronounced. This is not a trivial concern in light of the need for the trial judge’s screening function to be fulfilled as accurately as possible. Without derogating the role of the jury as the ultimate fact-finder, it should be recognized that child sex-abuse charges are inherently inflammatory and tend to invoke strong feelings toward the accused. If the defendant is guilty, the justice system obviously benefits from the introduction of incriminating evidence in view of the high social cost of allowing him to go free, often to re-offend. However, the opposite error, conviction of an innocent defendant, also involves a significant social cost, as the ensuing criminal punishment and society’s condemnation can be severe. This highlights the need for extreme caution to avoid, on the one hand, withholding a victimized child’s statements from the jury,-and on the other, allowing a manipulated child’s accusations to be placed before the jury. With this in mind, I would not transport wholesale into the Tender Years Hearsay Act the particularized-guarantees framework originally developed for the Confrontation Clause. Instead, I would permit some measure of *460latitude for a court ruling on a TYHA motion to consider the statement’s “time, content and circumstances,” broadly construed, so that it may fulfill its gatekeeper function as accurately as possible. '

As for the present matter, I would conclude that the lack of physical corroboration tends to undermine the statements’ admissibility in the circumstances, albeit not fatally so in view of the explanation contained in the record — and recited by the majority — concerning why such physical proofs might reasonably be absent. See Majority Opinion, at 455 n. 10 (quoting N.T., July 19, 2010, at 90, reproduced in R.R. 174a). Accordingly, I am able to conclude that the trial court acted within its discretion in permitting introduction of the statements at trial.

Justice BAER joins this concurring opinion.

. The majority states that competency to testify is “not concerned with credibility.” Majority Opinion, at 451 (quoting Commonwealth v. Delbridge, 578 Pa. 641, 663, 855 A.2d 27, 40 (2003)). However, competency requires that the witness "sufficiently understand the duty to tell the truth,” Pa.R.E. 601(b)(4), and it is difficult to understand how an individual who does not have such an understanding can be deemed credible. Although I joined the Del-bridge majority, I now have reservations about that particular aspect of the opinion.

. One court suggested that an expert opinion along these lines was

confirmatory of what the average person would believe in the absence of expert testimony — children are susceptible to suggestion and manipulation by adults. A skillful questioner can get a child to say almost everything. This conclusion is utterly expected and intuitive.

Ardolino v. State, Criminal No. 98-430, slip op. at 4-5, 2001 WL 1719196 (Me.Super.Ct. May 14, 2001), quoted in Ardolino v. Warden, 223 F.Supp.2d 215, 236 (D.Me.2002).

. See generally Judy Yun, Note, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, 83 Colum. L.Rev. 1745, 1758 (1983) ("Comprehensive Approach") ("To determine accuracy [of a hearsay statement], circumstances such as the age of the child, his or her physical and mental condition, the exact circumstances of the alleged event, the language used by the child, the presence of corroborative physical evidence, the relationship of the accused to the child, the child’s family, school, and peer relationships, and the reliability of the testifying witness, can be examined.”) (footnotes omitted, emphasis added).