stating that the trial court erred by accepting the parties' stipulation that a child was not competent to testify as a witness given the trial court's failure to make an independent competency evaluation based upon a personal evaluation of the child
How later courts described this case
- stating that the trial court erred by accepting the parties' stipulation that a child was not competent to testify as a witness given the trial court's failure to make an independent competency evaluation based upon a personal evaluation of the child
- holding that trial court did not exercise its discretion
- prohibiting a trial judge from accepting the parties' stipulation that a particular child was competent to testify as a witness
- "The trial judge correctly treated the motion [in limine], pursuant to N.C.G.S. § 8C-1, Rule 104, as one raising a preliminary question concerning the qualification of witnesses to testify."
Written by the judges who cited it.
The opinion
Justice BILLINGS
concurring.
I concur in the opinion of the Court but wish to expand on the reasons for concluding that admission of the hearsay evidence was highly prejudicial in this case.
The suspicions of the medical personnel who first examined this child were aroused by observation of redness of her external genitalia. However, the family of the child testified to and the medical personnel observed a “severe masturbation problem” which may have explained the redness. Upon physical examination of the child, medical personnel discovered a hair in her vagina. However, this turned out to be an animal hair.
*175 After concluding that the child had been sexually molested, one of the witnesses asked her who had hurt her, and she identified the defendant. When asked what the defendant had hurt her with, she replied with a word that different people interpreted differently. The State’s witnesses who heard her response understood her to say “his dick.” When the child repeated the statement to her mother in the presence of the State’s witnesses, the mother understood the child to say, “his stick.” She immediately explained to the people present that her husband had spanked the child on the previous evening with a switch which the child referred to as a stick.
Finally, the State allowed the witnesses to testify regarding the child’s placement of anatomically correct dolls, placing the male doll face down on top of the female doll. However, there also was evidence that the child asked “What’s that” when she first saw the external genitalia of the anatomically correct male doll, casting further doubt on the interpretation as “dick” of the word previously used by the child.
The above is, of course, not all of the State’s evidence, but it does point up the questionable reliability of the hearsay testimony. Even if we were to find that the statements of a three-year-old child have “equivalent circumstantial guarantees of trustworthiness,” N.C.G.S. § 803(24), because a child of that age lacks the cognitive ability to fabricate (evidence offered by the State), we would be reluctant to rely on the evidence in cases where, as here, the actual content of the statement was subject to interpretation.