Hearsay gets leeway with child witnesses says Fairfax criminal lawyer

Hearsay from alleged sex assault victims under 13 might get admitted into evidence, says Fairfax criminal lawyer

Hearsay is an out of court statement offered into evidence at trial to prove the truth of the matter asserted therein. As a Fairfax criminal lawyer, I know that such evidence generally is inadmissible at trial unless an applicable evidentiary exception applies. When it comes to the testimony of alleged sexual assault victims under thirteen years old:

Does the Sixth Amendment‘s Confrontation Clause invalidate Virginia’s liberalized rule for admitting hearsay of alleged sexual assault witnesses under thirteen years old?

Unfortunately, Virginia Court of Appeals caselaw generally okays the foregoing liberalized exception to the hearsay rule, so long as the alleged minor victim under 13 is available to testify, even if the witness’s memory is lacking. Alvarez Saucedo v. Virginia, 71 Va.App. 31 (2019). 

Is a drawing or drawing with word descriptions a statement under Virginia’s rule admitting certain out-of-court statements of minor witnesses?

This week, the Virginia Court of Appeals confirmed that a drawing made during a forensic hospital interview, or a minor-initiated letter mainly of drawings with word descriptions to his or her parent qualifies as a statement under the foregoing hearsay exception provision. Chenevert v. Virginia, ___ Va. App. ___ (April 21, 2020).

What role does the unsympathetic nature of a defendant have in applying a hearsay exception?

Certainly, the allegations against Chenevert makes him a particularly unsympathetic person, for instance in describing the alleged victim’s otherwise hearsay letter to her mother: “First, although the parties discuss the exhibits as ‘drawings,’ the ‘drawings’ contain assertions written out with words, such as: ‘Dadey makes me kiss his Boo Boo’ and ‘He makes me suck it.’ Those written words demonstrably make assertions and thus are statements within the meaning of the statute.” This is an additional roadmap to such a hearsay exception in Virginia.

Of course, the law must apply with equal force both to sympathetic and unsympathetic defendants, including in addressing hearsay exceptions. In any event, Chenevert affirms his conviction for forcible sodomy of a minor and aggravated sexual battery, under Va. Code §§ 18.2-67.1 and 18.2-67.3. I, maintaining his sentence of two mandatory life in prison plus twenty additional years in prison. 

Fairfax criminal lawyer Jonathan L. Katz  pursues your best defense against felony, misdemeanor, DUI, drug and sex prosecutions. Call 703-383-1100 to schedule a confidential consultation with Jon Katz.