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Children's Hearsay Statements and Probable Cause:

Is the uncorroborated, hearsay statement of a three-year-old sufficient to establish probable cause that child abuse has occurred? Today a divided opinion from the U.S. Court of Appeals for the Sixth Circuit confronts this question. Senior District Judge Thomas Wiseman, sitting by designation, wrote for the majority that the three-year-old's statement was not enough. From the majority opinion:

An eye witness's statement that he or she saw a crime committed or was the victim of a crime is generally sufficient to establish probable cause. . . . We are not aware, however, of any situation in which the uncorroborated hearsay statement of a child as young as three, standing alone, has been considered sufficient to establish probable cause. . . .

contrary to the position of the dissent, our determination that probable cause did not exist in this case is not based upon an assumption that the police could not believe or rely on the statements of a three-year-old child. In fact,a large part of the problem here is that the police did not interview the child at all. Instead, they relied solely upon the mother's allegation that the child had made a statement indicating possible abuse. . . .

our opinion should not be read as holding that an accusation of child molestation reported to authorities by a parent will never suffice to establish probable cause. Nor are we holding that a child victim of sexual abuse must in every case be interviewed by police in order to establish probable cause. Shaw has not advocated any such rule, and we need not adopt one to find that the detention at issue was not based on probable cause. We hold only that the mother's bare-bones hearsay accusation in this case, with no corroborating evidence, did not suffice to establish probable cause, and that the ensuing arrest was therefore unlawful.

Judge Jeffrey Sutton dissented:

If a three year old may tell his mother that he has been sexually molested, if the mother may tell the police about the allegation and if the police may rely on her statement to establish probable cause, . . . what is it about the circumstances of this case that show probable cause did not exist to arrest Shaw? Nothing, I respectfully submit. . . .

As I read the majority's opinion, it rejects the district court's finding of probable cause on one ground and one ground alone: that the police could not believe the statements of a three year old. I realize the majority disclaims announcing such a bright-line rule, but I cannot see any other reason for the decision. While I share the majority's anxiety about premising an individual's deprivation of liberty on the observations of a three year old, it is well to remember that that is not all that happened. The police interviewed the mother, who knew both the victim and the perpetrator; they interviewed the medical staff; they learned that Shaw had the opportunity and necessary access to the child to commit the crime; and they learned nothing inconsistent with the accusation. And of course we are not being asked to affirm a criminal conviction. We are being asked a question of probabilities—whether a trained law enforcement officer could reasonably believe that Shaw had committed a crime. If the majority is right, the officers not only lacked authority to take Shaw into custody to ask him about the accusations, they also lacked authority to obtain a search warrant (also based on probable cause) of the suspect's room—which seems untenable if, say, the allegations had included sexual abuse involving a physical object or photographs.

Law enforcement, to be sure, may consider the age of the victim in considering other circumstances of the investigation, and particularly any indicia of untrustworthiness, but the status of being a three year old does not as a matter of law discredit the victim's accusations. . . .

everyone understands that "a defendant's Fourth Amendment rights are not suspended when he is suspected of committing murder, rape or . . . child sexual abuse." . . . My point is not that we should lessen Fourth Amendment protections in child-sexual-abuse cases; it is that we should not increase them. In murder and rape cases, one does not need corroborating evidence at the probable-cause stage to support the testimony of someone who witnessed (or experienced) the crime. Eyewitness testimony alone will suffice, unless there is a reason for "the officer to believe that the eyewitness was lying, did not accurately describe what he had seen, or was in some fashion mistaken regarding his recollection." . . . But in this case the eyewitness testimony does not suffice, the court holds, absent corroborating evidence, and that is true even though there is nothing about the child's accusation suggesting he was mistaken. To say that child-sexual-abuse cases require corroborating evidence thus not only increases the Fourth Amendment protections for this one crime but does so for the one type of crime most likely not to yield such evidence. I respectfully dissent.

Third Party Beneficiary (mail):
"everyone understands that 'a defendant's Fourth Amendment rights are not suspended when he is suspected of committing murder, rape or . . . child sexual abuse.'"

Is there a record of whether the dissenter delivered that line with a straight face? There's practically a "child sexual abuse exception" amendment appended to the Bill of Rights.
9.26.2006 3:44pm
JohnO (mail):
Ultimately, I think the dissent is right as to the proper result, but both sides' analysis leaves me wanting. As for the majority, I just think they are wrong that there was not enough evidence for probable cause to make an arrest. In that regard, the dissent is dead on that this isn't a question as to whether there is enough evidence to convict, or even to admit the child's statement as evidence.

On the other hand, the dissent puts the entire issue as whether hearsay is insufficient because the CHILD might not be credible. But an equal or even greater concern in cases of alleged child abuse is whether the complaining parent is credible. There are plenty of instances where parents falsely accuse others of abusing their children, such as accusing a father of child abuse as leverage in divorce/custody proceedings. So the vice of relying on hearsay in this case isn't just that the child might be lying, but also that the child might not have ever made the accusation. Here, however, there is no apparent indication that the mother had an axe to grind against the defendant, so I think the police were justified in finding probable cause to arrest on the facts of this case, hearsay or not.

I will say that Third Party Beneficiary makes a good point that the Bill of Rights seems, well, "relaxed" in child abuse cases.
9.26.2006 4:13pm
John (mail):
This is only probable cause we are talking about--not even a question of relevance or admissability for trial. This should not require as high a standard as the majority seems to want, especially where the offense is of an ongoing type.
9.26.2006 4:22pm
logicnazi (mail) (www):
The majority's opinion seems totally correct to me.

Remember that there is a pile of evidence showing how malleable the memory and answers of young children are, this situation gets much worse when they are not being asked a straightforward factual question but a delicate question of interpratation (did he touch you 'inappropriately'). Perhaps in some circumstances the mother's assertion of the child's statement, for instance he comes to her unbidden and tells her he was anally penetrated by the man's penis, would suffice for probable cause but likely these cases would involve easily accessible physical evidence anyway.

The problem with relying on merely the mother's statement of what the child said is that a perfectly honest well intentioned mother who is convinced child abuse happened could easily provoke the child to say that child abuse happenened. Three year olds are very eager to please their parents (at least sometimes) and if the mother's tone and demeaner suggest that saying the guy touched him inappropriatly is the right answer that is what the kid will eventually say and you can't expect the distraught mother to properly communicate that she was unconciously urging the child to answer with what she thought was right.

I mean I'm far from convinced that this sort of hearsay establishes anything more than the mother's inclination to accuse the man of child abuse. Even if you think it does the possibility for error is large enough and the requirement small enough that we should encourage the police to interview the child.
9.26.2006 6:03pm
Anderson (mail) (www):
What John said. "Probable cause" isn't even a preponderance. When you see what's passed for probable cause in untold cases, it's absurd to hold that probable cause wasn't met here.

Is there a potential for mistakes here, as logicnazi observes? Sure. Just like with any other probable-cause issue. So what?

All that being said, a sympathetic female officer should've been allowed to speak to the child without the mom in the room. Would it make a difference to anyone's analysis if the child told that officer the same facts?
9.26.2006 7:02pm
logicnazi (mail) (www):
Yes, that would make every difference to my analysis.

If there was good reason to believe that a police officer could not easily interview the child I might change my opinion as well. However, there is an element of pragmatism in these standards and the fact that it is an almost cost free way to be more sure and that the harm of falsely arresting someone for child abuse is large do make a difference.
9.26.2006 8:24pm
logicnazi (mail) (www):
Also let me ask a different question:

Do other people think the mother's unsubstantiated sucpiscion constitutes probable cause on it's own? (say she just gets a bad vibe from the guy and thinks her son acts odd after he has been alone with him)

If not and you believe there was probable cause here you are tacitly relying on the fact that the child's testimony substantially raises the probability that this man indeed abused the child. Thus in order for there to be probable cause here it needs to be true that in most cases where the mother is convinced abuse is happening the child will not end up saying that child abuse is happening. I am not convinced this is true.
9.26.2006 8:28pm
Bruce Hayden (mail) (www):
I think that a mother's unsubstantiated suspicion should trigger an investigation. But arrest? No. Parents are often going off half cocked about things, and it is as likely as not that she would be imagining things if it is just a suspicion. Of course, the more facts that the child gives the parent that could only plausibly be explained through molestation, the less unsubstantiated are her suspicions, and the closer you get to what I would consider probable cause.
9.26.2006 9:24pm
Assistant Village Idiot (mail) (www):
I like logicnazi's second point of analysis here. It is clear that nearly everyone would assign some positive value to the child's reported statement, but all are aware of unreliability.

I also liked JohnO's point that the mother's plausibility seems to have dropped out of the equation, but could be important.
9.26.2006 11:20pm
Lev:
what about the Wenatchee and Martin Preschool "sex abuse" cases

lots of allegations from little kids, and their parents

all false
9.27.2006 1:47am
David M. Nieporent (www):
I recognize that the standard for probable cause is low, significantly lower than beyond a reasonable doubt or preponderance. Still, I have to agree with the majority. If this is probable cause, then anything beyond an outright guess would be probable cause. You might as well not have a requirement at all if you're going to let a secondhand accusation with precisely zero corroborating evidence count.


What I find particularly bizarre is this statement by the dissent, which I will break down piece by piece:
While I share the majority's anxiety about premising an individual's deprivation of liberty on the observations of a three year old, it is well to remember that that is not all that happened.
In fact, it is well to remember that is not what happened at all. They didn't talk to the three year old. They are not basing their decision on the observations of a three year old, but on the statements of a woman who has no firsthand knowledge whatsoever.
The police interviewed the mother, who knew both the victim and the perpetrator;
Yes; that's ALL they did. It seems to me that the dissent is trying to make it sound as if this were an additional step they took, rather than the only step they took. And what if they did? Again, I acknowledge that the probable cause standard is low, but surely someone with no firsthand knowledge saying, "I believe him" but providing no corroborating evidence does not bolster a claim of probable cause.
they interviewed the medical staff;
What on earth does that have to do with anything? The dissent seems to be trying to change the subject from "Is there probable cause?" to "Were the police diligent?" I'm glad they talked to the medical staff, but since the medical staff had no information, who cares?
they learned that Shaw had the opportunity and necessary access to the child to commit the crime;
I'll grant that as a point in favor of probable cause. A trivial point. It's not as if the accusation covered a specific time period, and he had no alibi. The fact that he could have done it, if it happened, is hardly probable cause to believe it did happen and he did it.
and they learned nothing inconsistent with the accusation.
Uh, they didn't learn anything to support the accusation, either. I want to guffaw and use a Bernsteinian "No, really, what's your theory?" here.

"We looked for evidence of a crime and couldn't find any -- so that constitutes probable cause."???

To reiterate, the dissenting judge seems more interested in praising the police for doing some work than for evaluating whether probable cause exists. And yet, he somehow overlooks the fact that they didn't do the most basic step: talk to the only witness to the alleged events.
9.27.2006 3:34am
Henri LeCompte (mail):
As the father of a three year old, I have to tell you that they are completely capable of giving accurate information about all sorts of experiences, especially frightening or unusual events. It is beyond unwise to be catagorically skeptical of the reports of three-year-olds.

If my three year old son told me "Bill from next door put his wee-wee in my mouth," I would be calling the police with that information. Who else is going to? My son?

The absence of additional corroborating evidence is unfortunate, but what are you gonna do? These are the cards you are dealt, and you have to make a decision-- taking into account the safety of the accuser, and society at large. Not every molester is stupid enough to leave lots of additional evidence lying around. In fact, I would think it typical of molestation cases that the only evidence is the word of the accuser.

Now, yes, they also should have spoken to the child before they made the arrest, but perhaps they felt they had to act more quickly in this case? Because the mother and the "victim" were afraid to even return to their homes because the accused lived with them? Perhaps, they felt the need to "intervene" immediately to prevent the possibility further criminal activity? The stakes are pretty high in a case like this-- the welfare of a child is on the line.

Isn't it similar to the way that police handle domestic violence incidents? Someone has to go to jail, if only to prevent future episodes?
9.27.2006 6:35pm