Admissibility of Statements of Children Relative to Sexual Abuse
In child custody cases involving abuse, including sexual abuse, the statements of a child might be the best evidence of the abuse. In these cases, courts are often hesitant to bring a child into a courtroom to testify about the abuse. When other parties come into the courtroom to testify as to what a minor child reported, a hearsay objection is commonly invoked. By definition, statements made by a child to third parties are hearsay statements.
However, children’s statements concerning physical or sexual abuse are often admitted into evidence over an objection if the statements comply with the requirements of state child hearsay statutes. The statements of child abuse victims are often admitted into evidence under the residual hearsay exception. Courts have held that children’s out-of-court statements were admissible under this exception where the children did not testify at trial (§ 66). This includes cases in which the courts determined that the children could not, or should not, testify at trial.
The legal basis for admitting these statements is Federal Rules of Evidence 807:
Rule 807. Residual Exception
(a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804:
(1) the statement has equivalent circumstantial guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and
(4) admitting it will best serve the purposes of these rules and the interests of justice.
(b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant’s name and address, so that the party has a fair opportunity to meet it.
An important Missouri case on this topic is In re Marriage of P.K.A. In this case, the mother and a psychologist testified about severe sexual abuse reported to them that were allegedly perpetrated by the father. On appeal, the father asserted that these statements were hearsay and should not have been admitted. The Court of Appeals held the following:
“In this case, even if the state of mind exception would allow the child’s statements, that evidence would not justify restrictions on the father’s visitation unless it could be considered for its truth. If the child mistakenly believed that the father had done the things the child related, that mistaken belief would not be a sufficient ground for restricting visitation. If the statements were erroneous, allowing the father to see his child could correct rather than continue that belief. Thus, it might be in the child’s best interest that the father have unrestricted visitation.
The necessity to have statements of a child indicating abuse considered for their truth calls for a special hearsay exception. J. Bulkley in Evidentiary Theories for Admitting a Child’s Out-of-Court Statement of Sexual Abuse at Trial, Child Sexual Abuse and the Law, ABA National Legal Resource Center for Child Advocacy and Protection, 153, 161 (3d ed. 1982) advocates such an exception:
‘as long as guidelines for admissibility are clearly established within which courts can properly exercise their discretion. Only then will the intent of the rules of evidence be carried out, namely, that they be applied ‘to the end that the truth may be ascertained and proceedings justly determined”
In rare cases, the court has held that the child’s testimony was inadmissible because of the lack of truthfulness. Courts, however, are willing to admit children’s hearsay statements under this exception. It is important, however, to check case law and rules of evidence in your jurisdiction.
 Carol Vento, Validity, Construction, and Application of Child Hearsay Statutes, 71 A.L.R.5th 637 (1999).
 Wilson Phelps, Admissibility of Statement Under Rule 807 of Federal Rules of Evidence, Providing for Admissibility of Hearsay Statement Not Covered by Specific Exception, 173 A.L.R. Fed. 1 (2001).
 Federal Rule of Evidence 807
 In re Marriage of P.K.A., 725 S.W.2d 78 (Mo. App. 1987)