Witness statements by child witnesses debated: prosecutors back broader hearsay exception, defenders and advocates raise constitutional concerns

Sen. Tawana Nobles (D-28) told the Law & Justice Committee on Jan. 23 that Senate Bill 5169 would allow out-of-court statements from children under age 18 to be admitted in dependency proceedings, criminal trials and juvenile adjudications when the statements describe sexual contact, physical abuse, trafficking, exploitation or violent offenses the child witnessed.

"Children who witness violent crimes endure profound trauma," Nobles said, arguing the bill would let children share their experiences "without added harm of a courtroom." The bill would align the ages and covered offenses for two existing exceptions and allow testimony by closed-circuit television (CCTV) in more circumstances.

Nut graf: Supporters, including prosecutors who try child-abuse and assault cases, said existing rules force some children to testify years later, retraumatizing victims and weakening evidence if an interview cannot be used. Opponents, led by public defenders and other civil‑liberty advocates, said the proposed expansion to language that covers all minors up to 18 is broader than typical child‑hearsay statutes, risks constitutional challenges under the Confrontation Clause and could produce appellate reversals.

Prosecutors urged the committee to act

Lindsey Chenella, deputy prosecuting attorney in Pierce County's Special Assault Unit, told the committee that in some cases current law prevents prosecutors from admitting a child's out-of-court interview unless the child suffered “substantial bodily injury.” She gave a case example in which a 5-year-old who witnessed a shooting could not have her interview admitted because she did not meet that statutory threshold; she also described a 6-year-old who witnessed strangulation situations where proving "substantial bodily harm" was difficult.

"We do believe that this is a bill that would both allow child testimony, and trauma, while still allowing defendants to be able to question the witnesses as to what happened," Chenella said.

Sarah Park, assistant team lead for Pierce County's Special Assault Unit, described a case involving a 13-year-old rape victim who attempted suicide before trial; Park said that if the child’s forensic interview had been admissible, "she wouldn't have to tell at least 19 strangers how she was raped in specific detail." Park described forensic interviews as conducted by trained professionals in neutral, non‑suggestive settings.

Opposition and constitutional questions

Kate Benward, associate special counsel at the King County Department of Public Defense, testified in opposition. Benward said SB 5169 would be "an unprecedented expansion" that could make Washington an outlier because it would extend the hearsay exception to all minors up to age 18 and to witnesses who are not the direct victims.

"Because of the accused's Sixth Amendment right to cross examine one's accusers and the inherent unreliability of hearsay ... the use of hearsay testimony allowed under this bill would almost certainly draw post-conviction appeals on constitutional grounds," Benward warned.

Parent testimony

Beth Warner, a parent of a child survivor, urged the committee to act to avoid forcing children to retell violent events in front of their alleged abusers and described the long trauma her daughter experienced after prosecution proceeded without the child's interview being admitted.

Questions from members and staff

Committee members asked about the mechanics of CCTV testimony, who may sit with the child during such testimony, and constitutional issues. Ryan Giannini, committee staff counsel, said CCTV testimony typically has the child in a separate room; whether a parent is present for the CCTV testimony can depend on the setting and the practitioners involved. Sarah Park said the child may have a support person who is not a witness.

Ending

The committee closed the public hearing on SB 5169 after receiving testimony from prosecutors, a public defender, and a parent. No final committee vote was recorded in the hearing segment. The bill will advance according to the committee’s scheduling.