The Big Gun in DSS Cases: Section 19-1-180; Hearsay Exceptions in Abuse Cases
Section 19-1-180: The Big Gun.
We know it even before we go to law school. We see it on TV and in the movies. Lawyers jump from their chair and loudly proclaim “Objection, Your Honor, that is hearsay!” Generally, unless one of the established exceptions exists, that objection is sustained. After all, we all have a Constitutional right to face our accuser. Or do we?
Welcome to DSS court. There is a special kind of hearsay exception here. It is found in S. C. Code Section 19-1-180.
Section 19-1-180 provides for the admission of certain out-of-court statements made by children in abuse and neglect cases. Yes, the very core of the allegation. This is a powerful weapon in the DSS arsenal.
The statements that are generally sought to be introduced by DSS pursuant to 19-1-180 are statements made by the child early on in the investigative process to law enforcement, nurses, doctors or social workers; or statements made by the child to a counselor or other mental health professional. Sometimes the statements are forensic interviews. Sometimes they are recorded. They go to the very core of the case and are very damaging if the alleged perpetrator is seeking to deny perpetrating the abuse or neglect. In many instances, DSS is seeking to have a professional witness, trained in getting information from children, testify as to what the child said about the substance of the abuse allegation. For example, the child may be on video telling a forensic interviewer about how hard step-daddy hit him with a belt; or how uncle put his thing in his hind end. Maybe the child told a nurse or a police officer that mama punched her in the face. The statement could even be about a child witnessing parental drug use. Once in evidence, these statements are hard to impeach.
19-1-180 has some pretty basic rules, yet they are occasionally overlooked by practitioners.
- 19-1-180 only applies to a child who is under twelve years old or who functions cognitively, adaptively or developmentally under the age of twelve at the time of a family court proceeding brought in an abuse or neglect case. So, read that carefully. If the child is twelve or older when the statement is made OR when the case goes to court, 19-1-180 does not apply.
BUT: if the child is over 12, then the child must be found to function cognitively, adaptively or developmentally under the age of 12, in order for 19-1-180 to apply. This will require expert testimony. The Defendant may challenge the professional decision that the child functions below the age of 12. This would likely require another expert in my opinion.
- If the child is under the age of 12, functions under the age of 12 and does NOT testify, the out-of-court statement is admissible if the child is found to be UNAVAILABLE and the statement is shown to POSSESS PARTICULARIZED GUARANTEES OF TRUSTWORTHINESS. Expert testimony is again required.
*UNAVAILABILITY of the child can result from a number of enumerated grounds:
*the child is dead
*the child has a physical or mental disability
*the existence of a privilege involving the child
*the child’s incompetency, including the child’s inability to communicate about the offense because of fear
*substantial likelihood that the child would suffer severe emotional trauma from testifying at the proceeding or by means of videotaped deposition or closed-circuit television
When I worked as a DSS attorney, I used the last two in the list the most often. It is very common for a 6, 7, or 8 year old child to be very afraid to communicate about an act of abuse. It is very common for such children to suffer emotional trauma as a result of discussing the abuse, even in a therapeutic setting.
- If the child under 12 or who functions under the age of 12 testifies and is subject to cross examination, then the statement is admissible. THIS IS REALLY IMPORTANT. IF THE CHILD TESTIFIES, AND IS SUBJECT TO CROSS EXAMINATION, THE STATEMENT IS ADMISSIBLE. The child doesn’t have to say anything about the abuse in that testimony. The child can even just sit there and cry, so long as he or she is subject to cross-examination. The statement is still admissible.
As a practical matter, I hate to see a child forced to testify. But that may be the only way the 19-1-180 statement can be admitted.
- *PARTICULARIZED GUARANTEES OF TRUSTWORTHINESS are also enumerated in the Code. If the statement is recorded on a DVD, there is no doubt as to what was said and that is my preferred way to have these statements done. You need specific findings in your order as to why the statement is trustworthy, using the enumerated considerations.
(D) In determining whether a statement possesses particularized guarantees of trustworthiness under subsection (B)(2)(b), the court may consider, but is not limited to, the following factors:
(1) the child’s personal knowledge of the event;
(2) the age and maturity of the child;
(3) certainty that the statement was made, including the credibility of the person testifying about the statement; ***A DVD MAKES THIS FINDING EASY***
(4) any apparent motive the child may have to falsify or distort the event, including bias, corruption, or coercion;
(5) whether more than one person heard the statement; ***A DVD MAKES THIS FINDING EASY***
(6) whether the child was suffering pain or distress when making the statement;
(7) the nature and duration of any alleged abuse;
(8) whether the child’s young age makes it unlikely that the child fabricated a statement that represents a graphic, detailed account beyond the child’s knowledge and experience;
(9) whether the statement has a ring of verity, has internal consistency or coherence, and uses terminology appropriate to the child’s age;
(10) whether extrinsic evidence exists to show the defendant’s opportunity to commit the act complained of in the child’s statement.
So how can the defense get around it? The answer is that there are very limited ways around it:
- DSS must give notice of the intent to present a hearsay statement. This notice should provide as much detail as is reasonably possible as to the substance of the statement and to whom the statement was made. When I worked for DSS, if using a video-taped forensic interview, I copied that DVD for opposing counsel. However, I don’t think that is required by the statute. I think that DSS should make the video available for counsel to watch prior to the court proceeding. The Defendant simply has to be afforded a fair opportunity to prepare a response to the statement of the child. There has to be a hearing on whether or not the statement is admissible prior to its admission. This can be done during the trial on the merits or separately at an earlier hearing.
- Make sure you know how old the child is both when the statement was made and at the time of trial. If the child is over 12 and functions as a child over 12, the statement is not admissible.
- If DSS is going to pursue admission of a statement by a child who functions under the age of 12, the defense may ask for their own evaluation.
- If the child is young or developmentally delayed, make sure the interviewer used the truth/lie protocol. Make sure that body parts were accurately identified by the child.
- Check the specific wording of the code and make sure that what DSS is trying to admit fits into what 19-1-180 allows. This is especially important in cases involving divorced or separated parents. In that instance, a therapist must be “licensed” in order for 19-1-180 to apply. (See SCDSS v. Lisa C.). The Courts have been more cautious in statements made to parent that might be motivated by the hostilities of a custody case.
MJ Goodwin worked as a part-time DSS attorney for several years. The above are excerpts from a Continuing Legal Education Program presented by MJ Goodwin in May 2013. DSS Cases can be complex matters and require experienced counsel.