concluding children's statements to their mothers lacked trustworthiness in part because the mothers were told prior to questioning the children of the probability the defendant had abused their children and were thus predisposed to believing they had been abused
How later courts described this case
- concluding children's statements to their mothers lacked trustworthiness in part because the mothers were told prior to questioning the children of the probability the defendant had abused their children and were thus predisposed to believing they had been abused
- holding a witness must be "`possessed of sufficient mind and memory to observe, recollect, and narrate the things he has seen or heard.'" (quoting State v. Moorison, 43 Wash.2d 23, 28-29, 259 P.2d 1105 (1953))
- holding a witness must be “ ‘possessed of sufficient mind and memory to observe, recollect, and narrate the things he has seen or heard’ ” (quoting State v. Moorison, 43 Wn.2d 23, 28-29, 259 P.2d 1105 (1953))
- holding that "[s]tipulated incompetency based on an erroneous understanding of statutory incompetency is too uncertain a basis to find unavailability"
Written by the judges who cited it.
The opinion
Dolliver, J.
(concurring) — I concur with the result reached by the majority. This concurrence is based solely on the fact the record does not disclose that in fact the prosecution made a "good faith effort" to obtain M's presence at the trial. See Barber v. Page, 390 U.S. 719 , 20 L. Ed. 2d 255 , 88 S. Ct. 1318 (1968). While I agree the parties and the court apparently misunderstood RCW 5.60.050 (persons incompetent to testify), it is appropriate to point out that both parties, at trial, stipulated as to the incompetence and thus the unavailability of M at the trial. Furthermore, on appeal defendant conceded "the State has met the constitutional unavailability standard required under Barber v. Page" (Brief of Appellant, at 12), i.e., the good faith standard. Given these stipulations and admissions by defendant, it is a long reach for the court to find M was not unavailable as a witness. Nonetheless, since the record is devoid of any underlying justification for the stipulation and concession by counsel on behalf of the defendant, I am constrained to join the majority in its reversal of defendant's conviction on both counts.
There are two other items which I believe need comment: (1) Although in this case the parties and the court misconstrued the statute on competency, RCW 5.60.050, it is my belief that if it is shown the meaning of the statute is understood and a finding of incompetency is made by the court, this then may be considered the legal equivalent of unavailability. See, e.g., Lancaster v. People, 200 Colo. 448 , 615 P.2d 720 (1980). See Joint Hearings on SB 4461 before *181 the Washington State Senate Judiciary Comm. & Washington State House Ethics, Law & Justice Comm., 47th Leg., January 28, 1982. See also ER 804.
(2) I disagree with the majority's finding that the statements of M did not contain sufficient indicia of reliability. Since the matter is to be reversed, no purpose would be gained by detailing the sordid record in this case. I believe the statements of M, however, had a ring of verity and that the trial court properly exercised its discretion in so finding. See United States v. Nick, 604 F.2d 1199 (9th Cir. 1979); Comment, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, 83 Colum. L. Rev. 1745 (1983); Comment, Sexual Abuse of Children— Washington's New Hearsay Exception, 58 Wash. L. Rev. 813 (1983). Compare RCW 9A.44.120(1) with ER 803 and ER 804.
Utter, Dore, and Dimmick, JJ., concur with Dolliver, J.
[En Banc. December 6, 1984.]