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Montana high court weighs whether a child’s forensic interview can corroborate prior statements in French appeal
Summary
At oral argument in State v. French, the Montana Supreme Court heard competing views on whether a four‑year‑old victim’s videotaped forensic interview and parents’ reactions can corroborate each other to prove penetration under Montana’s corroboration precedent; the court submitted the case after extensive questioning of both sides.
The Montana Supreme Court on appeal heard argument in State v. French over whether a four‑year‑old child’s videotaped forensic interview and related out‑of‑court statements provided sufficient corroboration to support a conviction for sexual intercourse without consent.
Defense counsel Jeff Wilson told the court that the conviction rests ‘‘solely on KK’s prior out‑of‑court statements’’ and argued those statements are ‘‘unreliable per se’’ under this court’s precedents and therefore cannot sustain a finding of penetration without independent corroboration. Wilson urged the justices to reverse, saying ‘‘the evidence was insufficient’’ under Montana law and that the video depiction should be treated as a nonverbal statement rather than neutral demeanor evidence.
State counsel Martell Pyar responded that the jury heard multiple consistent disclosures, viewed a recorded forensic interview in which KK described and demonstrated the act, and heard expert testimony about disclosure dynamics. ‘‘This court should affirm French’s conviction,’’ Pyar said, urging the court either to find the existing corroboration sufficient or to modify the court’s corroboration requirement so the evidence can be considered in the round.
The argument focused on two legal questions: whether visual depiction or demonstrative behavior in a recorded interview is a ‘‘statement’’ that the court has deemed inherently unreliable, and how the court’s sufficiency (de novo) review should treat video and demeanor evidence that jurors can see for themselves. Justices repeatedly asked how Whitewater and Giant — Montana cases that constrained use of prior out‑of‑court statements — apply when a jury has access to a recorded forensic interview and other corroborating indicia.
Counsel debated trial alternatives and practical steps the state could have taken, with Wilson outlining options such as a pretrial child‑hearsay reliability hearing, remote testimony, or more aggressive attempts to refresh the child’s recollection at trial. Pyar emphasized timing, spontaneity, expert testimony from a blind expert (Wendy Dutton), and parents’ immediate reactions as indicia of reliability and urged deference to the jury’s finding when evidence is viewed in the light most favorable to the state.
The bench also explored whether KK’s availability for cross‑examination — she testified at trial but reportedly said she did not recall some prior statements — meaningfully affected due process and the weight jurors could give prior inconsistent statements. Counsel and the justices discussed United States v. Owens and other out‑of‑state authority on when a witness’s in‑court lack of memory still permits use of prior statements.
No justice announced a tentative outcome during the argument. After extended questioning of both sides on the scope of Montana’s corroboration rule and the difference between admissibility and sufficiency, the court ‘‘submitted’’ the case.
What happens next: The justices will issue an opinion explaining whether the existing Montana rule (as articulated in Giant and Whitewater) bars the use of KK’s nonverbal demonstration and related out‑of‑court statements as corroboration, or whether the court will refine the standard. If the court relaxes or reinterprets the corroboration requirement, it could alter how child‑abuse evidence is treated in future prosecutions in Montana.
