Rule 1102 Allows Reliable Hearsay At Preliminary Hearings
At a preliminary hearing the Utah Rules of Evidence allow for the admission of “reliable hearsay,” and further provides a definition of “reliable hearsay.” Part of that definition includes “a statement made by a child victim of physical abuse or a sexual offense which is promptly reported by the child victim and recorded in accordance with Rule 15.5 of the Utah Rules of Criminal Procedure.”
In child sexual abuse cases, the child rarely has to attend a preliminary hearing to testify because of this rule. Typically, the prosecution can simply play a video recording of the child interview. This gives the defense a disadvantage because there is no opportunity for cross examination of the child and no opportunity for discovering fats that only the child knows.
So What Does “Promptly” Mean?
No Utah appellate court has ever addressed the issue of what “promptly” means. In absence of any case law on the issue, courts should simply look at the plain meaning of the word “prompt.” See generally Cook v. Dept. of Commerce, 2015 UT App 64 ¶ 13, 347 P.3d 5, 10, (“Utah courts have a long history of relying on dictionary definitions to determine plain meaning.”) Black’s Law Dictionary 1334 (9th ed. 2009) defines “prompt” as “To incite, especially to immediate action.” Merriam-Webster’s online dictionary defines a prompt action as “performed readily or immediately.”
From the dictionary definition, an action is prompt if it is preformed immediately. Therefore, under U. R. Evi. 1102(b)(7), a child victim interview is admissible at a preliminary hearing if the report of the abuse was made immediately after the abuse occurred.
Because case law is lacking as to what is considered prompt under U. R. Evi. 1102(b)(7), Courts should look to other jurisdictions for guidance. Of particular help is how other jurisdictions have interpreted promptness when admitting hearsay evidence under the “prompt outcry rule.” “At common law, the initial complaint of a victim of sexual abuse or child molestation if ‘prompt’ or ‘fresh’ is generally admissible in whole or part, usually but not always, solely to corroborate the in court testimony of the alleged victim.” 48 Crim.L.Bull. 1075, 3 (2012). See e.g., Commonwealth v. King, 834 N.E.2d 1175 (Mass. 2005) (Complaint made one week after assault was prompt), but see Park v. State, 10 A. 219 (Md. 1887) (Complaint made one week after the sexual offense was not prompt.)
Whether an outcry is prompt appears to differ from case to case. Perhaps New York’s high court said it best that “A complaint is timely for purposes of the prompt outcry exception if made at the first suitable opportunity. There can be no iron rule on the subject. The law expects and requires that it should be promptly reported, but there is and can be no particular time specified. Thus, promptness is a relative concept dependent on the facts – what might qualify as prompt in one case might not in another.” People v. McDaniel, 595 N.Y.S. 2d 364, 368. (1993) (Internal citations omitted).
In McDaniel, an eleven year old girl was sexually assaulted in the middle of the night by the defendant on two occasions. In the morning following each assault, the girl reported the incidents to her mother. Two weeks later after the last assault, the child told a detective and a prosecutor of the sexual abuse. The court held that the child’s report to her mother was not considered to be reported “promptly” because it was reported in the morning after the incident, but that the report to the detective and prosecutor was not prompt because it happened several days after the incident. See id.
In another New York case, a minor told her boyfriend in a written note that she was sexually abused by her father. See People v. Rosario, 958 N.E. 93, 96 (N.Y. 2001). This report was made approximately five months after the last incident of sexual abuse. Id. The court ruled that “too much time (perhaps as long as five months) elapsed between the last instance of alleged sexual abuse and the note for this evidence to qualify as a prompt outcry… the concept of promptness necessarily suggests an immediacy not ordinarily present when months go by …” Id. at 100. Because the report was not prompt, the court ruled the evidence of the note was inadmissible. Id.
