The Volokh Conspiracy - 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.

	[Jonathan Adler, September 26, 2006 at 2:14pm] Trackbacks 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.