Hearsay Exception Used in Abuse Case

In denying the defense motion to preclude the mother's testimony, Judge Frank J. LaBuda held the child's statements were admissible under the “prompt outcry” exception to the hearsay rule. Under New York State law, “evidence that a victim of sexual assault promptly complained about the incident is admissible to corroborate the allegation that an assault took place.” He relied on two earlier state court decisions to conclude that the little girl's words came within the exception: People v. McDaniel, 81 N.Y.2d 10 (1993) and People v. Rice, 75 N.Y. 2d 929 (1990). Under McDaniel, the words were clearly uttered right after the alleged abuse took place. Under Rice, however, the mother's testimony was limited to the facts of the complaint without any of the details. The defense is arguing that a broader issue may arise at trial: whether a parent can testify to the hearsay of a child who is not herself competent to testify. For the moment, though, the judge kept the ruling narrow by allowing the testimony only for the purpose of establishing that the girl made a prompt outcry.

A child who is too young to testify against her alleged abuser may speak through her mother, under an unusual application of an exception to the hearsay rule. A judge in upstate New York has ruled that the mother of a 3-year-old girl can testify about what the child told her in complaining that the mother's boyfriend had fondled her. The child had awakened her mother to tell her of the assault. People v. Potter, Ind. #164-02, N.Y. County Court, Ulster County, Sept. 29, 2003.