The Supreme Court of Virginia Clarifies Important Issues Regarding the Admissibility of Child Victims’ Out-of-Court Statements in Sexual Abuse Cases
Facts. R.P., an 11-year-old girl with autism, was sexually abused by Dilliraj Bista while he was staying with her family. In August 2018, R.P.’s mother found R.P. in the family living room on her hands and knees with her shorts and underwear pulled down to her knees while Bista was kneeling behind her. Later, R.P. described the sexual assault to her parents, and Bista admitted to some misconduct. In 2019, R.P. reported the incident to her teacher, leading to a police investigation. In February 2019, R.P. was forensically interviewed about the assault at a SafeSpot location, where she was videotaped describing the assault in detail. Bista’s DNA was also found on R.P.’s underwear.
Bista was charged with forcible sodomy of a child under the age of 13 and aggravated sexual battery. Three weeks before a preliminary hearing, the Commonwealth provided him with a copy of the SafeSpot video interview. R.P. testified at the preliminary hearing, and was thoroughly cross-examined by Bista. After the hearing, the district court certified the charges to a grand jury, which indicted Bista on the charged offenses as well as an additional charge of rape.
Before the circuit court trial, the Commonwealth filed a motion to admit R.P.’s statements to her parents, teacher, and the social worker that conducted her forensic interview into evidence under Code § 19.2-268.3 That code section provides a hearsay exception to the out-of-court statements of a child under 13 that describe “any act directed against the child relating to” several offenses, including those of which Bista was charged. The circuit court held an evidentiary hearing and granted the motion. In response to Bista’s motion to reconsider, the circuit court concluded that the “totality of the circumstances” established that R.P.’s statements were “inherently trustworthy” and corroborated by R.P.’s mother’s testimony and the DNA evidence from R.P.’s underwear.
Before trial, Bista filed his own motion challenging R.P.’s competency to testify based on her autism spectrum disorder and the manner in which it affected her. The circuit court held an evidentiary hearing, after which it found that R.P. was not competent to testify. Though the court found that R.P. had the capacity to “observe,” “recall,” and “communicate” events, it found that she did not have the capacity to “comprehend the legal significance of an oath,” “distinguish truth from falsehood,” or “understand the questions propounded and make intelligent answers.”
Finally, before trial, Bista filed a second motion challenging the admissibility of R.P.’s statements during her forensic interview because those testimonial statements were inadmissible since R.P. was not subject to cross-examination at trial. The circuit court denied that motion, finding that Bista had sufficient opportunity to cross-examine R.P. about that interview during the preliminary hearing.
Bista was convicted at trial of forcible sodomy and aggravated sexual battery but was acquitted of rape. He appealed to a panel of the Court of Appeals, and a divided panel affirmed his convictions. The Court of Appeals granted an en banc review, and again, a majority affirmed the convictions. So, Bista appealed to the Supreme Court.
Issues. (1) Whether the trial court abused its discretion in admitting R.P.’s out-of-court statements under Code § 19.2-268.3 after finding her incompetent to testify at trial. (2) Whether admitting R.P.’s forensic interview violated Bista’s Sixth Amendment right to confront witnesses against him.
Holdings. (1) No. Code § 19.2-268.3 does not expressly predicate admissibility upon a child’s competency to testify. (2) No. Bista had sufficient opportunity to cross-examine R.P. during the preliminary hearing.
Notes. (1) The Supreme Court distinguished between competency to testify and the trustworthiness of out-of-court statements. Whereas competency focuses on the present ability to testify truthfully and understand questioning, trustworthiness under Code § 19.2-268.3 examines multiple factors concerning reliability of the statements themselves. While the child’s mental condition is an important factor to both questions of competency to testify and the trustworthiness of out-of-court statements, their determinations are based on the consideration of different legal standards. Further, R.P.’s out-of-court statements were corroborated by evidence from R.P.’s mother’s testimony and the DNA evidence found on R.P.’s underwear.
(2) Assuming without deciding that R.P.’s statements during the forensic interview were testimonial in nature, the Supreme Court found that Bista “had a constitutionally sufficient opportunity to cross-examine R.P. at the preliminary hearing.” It found that Bista cross-examined R.P. extensively and without limitation during this hearing, asking over 125 questions about the sexual assault and its circumstances, including several questions specifically about her statements in the interview.