Tuesday, July 27, 2010

Spontaneity is the Key to 803A Tender Years Exception

In People v Gursky, the Michigan Supreme Court addressed the definition of “spontaneous” as the term is used in the “tender years” hearsay exception created by MRE 803A. The more restrictive definition declared by the Court resulted in the finding that the challenged statements were inadmissible and thus, had been erroneously admitted by the trial court. The victory for the defendant, however, was short lived as his four convictions for 1st Degree CSC (MCL 750.520b(1)a) were affirmed. The Court held the Macomb County Circuit Court’s error was harmless.

Gursky was convicted of committing multiple acts of sexual penetration with his girlfriend’s daughter when she was six and seven years of age. The child testified at trial about the charged incidents. However, the prosecution called an adult friend of the child’s mother who testified to several out of court statements made by the child in response to the witness’ probing questions, days after the last date of offense. The questions resulted from a “suspicion” the friend had about that “something had been going on” with Gursky towards the child. The questions asked by the friend to the child included: “if anyone had been touching her?”, “had anyone touched your private parts?”and “Who touched you?” After the child identified Gursky as the perpetrator, the friend asked more probing questions like: “What did he touch you with?” “Did he touch you any other way?” Did he touch you with his penis?” Circuit Judge Edward Servitto, over the objection of trial counsel, allowed the answers through the friend’s testimony under MRE 803A. He ruled the delay in disclosure was reasonable.

Gursky was convicted and appealed on the basis the challenged evidence should not have been admitted under the “tender years” exception, MRE 803A. More specifically, Gursky, represented on appeal by Robin Lerg, argued that the answers given by the child were not “spontaneous” because they were, in part, suggested by the questioning posed by the friend. The Court of Appeals disagreed on multiple fronts, but most notably because it found “Taken as a whole, the victim’s statements were primarily spontaneous, despite being prompted by [the friend’s] questions.”

The Court ruled that the answers from the child were clearly not spontaneous. It vacated the Court of Appeals’ ruling and rejected its reasoning. In so doing, Michigan’s highest court specifically stated it is not enough for “tender years” evidence to have simply a few “spontaneous elements” as allowed by the appellate court below. Instead, the Court ruled MRE 803A admissibility requires that spontaneity be an “independent requirement” and that it must be established that the evidence was not prompted, implied or manufactured in any way by the overreaching actions or interrogations of an adult. Since the questions posed by the adult friend here were too suggestive, the challenged answers were not admissible.

While the Court did not summarily reject the right of an adult to ask questions within the “tender years” context, it clearly emphasized any such inquiries to a child must be “…nonleading or open-ended in order for the statement to be considered the creation of the child.” If objective analysis finds the evidence resulted from the suggestion of an adult rather than the “creation of the child”, MRE 803A will certainly render the evidence inadmissible. The most important holding appears to relate to this bright-line rule: MRE 803A generally requires that the declarant-child initiate the specific topic of sexual abuse and that “…a statement prompted by an adult’s question specifically concerning sexual abuse is not spontaneous.”

J. Randall Secontine contributed to this post.

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