Los Angeles County Department of Children & Family Services v. Edgar L.

BROWN, J., Dissenting.

I am troubled by the prospect of this court trying to craft a child dependency hearsay exception. The development of hearsay exceptions at common law over the last three centuries has been a gradual process. “Hearsay is generally excluded because the out-of-court declarant is not under oath and cannot be cross-examined to test perception, memory, clarity of expression, and veracity, and because the . . . trier of fact... is unable to observe the declarant’s demeanor. [Citations.] . . . [T]he focus of the rule’s several exceptions is ... on the reliability of the out-of-court declaration. Thus, the various hearsay exceptions generally reflect situations in which circumstances affording some assurance of trustworthiness compensate for the absence of the oath, cross-examination, and jury observation.” (Pe ople v. Cudjo (1993) 6 Cal.4th 585, 608 [ 25 Cal.Rptr.2d 390 , 863 P.2d 635 ].)

Here we are dealing with a three-year-old child. The trial court determined she is unable to distinguish between truth and falsity. The role played by reality, imagination, and suggestion in such a child’s recollection of events is profoundly mysterious. The majority’s desire to allow courts broad latitude to consider highly relevant evidence in cases involving suspected sexual abuse of youiig children is understandable. However, opening up this field to ad hoc judicial legislation is likely to embroil courts at all levels in a far-ranging quest for indicia of reliability which neither experience nor empiricism can readily support. (See Note, Determining Reliability Factors in Child Hearsay Statements: Wright and Its Progeny Confront the Psychological Research (1994) 79 Iowa L.Rev. 1149, 1176-1177 [“psychological research has verified less than half of the reliability factors relied on by the *37 courts in determining the truthfulness of child hearsay statements” (fn. omitted)].) Thus, even assuming we have the authority to create a child dependency hearsay exception, it is not at all clear we have the resources to obtain the psychological expertise necessary to determine the reliability of a child’s statement. Rather, the Legislature appears to be in a better position to research and delineate the appropriate criteria for any such hearsay exception.

Moreover, as the majority acknowledges, the Legislature has been active in this area. In 1995, it enacted Evidence Code section 1360, which allows for admission of certain child hearsay statements in a child abuse or neglect prosecution. (Maj. opn., ante, at p. 29, fn. 7.) In 1996, after the decision in In re Carmen O. (1994) 28 Cal.App.4th 908, 921 [ 33 Cal.Rptr.2d 848 ], which first recognized a child dependency hearsay exception, it amended Welfare and Institutions Code section 355 to allow consideration under certain circumstances of a child’s out-of-court statements contained in a social study. (Maj. opn., ante, at pp. 22, fn. 3, 28, fn. 6 & pp. 30-31.) We should restrain from exercising any authority we may have to create common law exceptions to the hearsay rule when the Legislature has been active in formulating closely related exceptions. (See People v. Wheeler (1992) 4 Cal.4th 284, 299-300 [ 14 Cal.Rptr.2d 418 , 841 P.2d 938 ] [refusing to fashion a judicial hearsay exception to allow impeachment with misdemeanor convictions when the Legislature created a hearsay exception for felony convictions only].)