When can Utah courts find child witnesses unavailable without expert testimony? State v. Thomas Explained

In State v. Thomas, the Utah Supreme Court clarified when trial courts may find child witnesses unavailable for purposes of admitting videotaped testimony under Utah Rule of Criminal Procedure 15.5(1)(h).

Background and Facts
Thomas was charged with rape of a child and aggravated sexual abuse based on his written confession to his mother detailing sexual abuse of his four- and five-year-old cousins. During trial, the seven-year-old victim testified, but her six-year-old sister, C.M., could not provide substantive verbal responses to the court’s basic questions about the courtroom, her school, or her toys. Despite extended questioning and allowing C.M. to sit on her mother’s lap, the trial court found her unavailable and admitted her videotaped police interview over Thomas’s objection.

Key Legal Issues
The case presented three issues: (1) whether the trial court properly found C.M. unavailable without medical or psychological evidence of potential strain; (2) whether admitting an undisclosed letter for impeachment constituted reversible error; and (3) whether alleged defects in the information required a directed verdict.

Court’s Analysis and Holding
The court held that Rule 15.5(1)(h) incorporates Utah Rule of Evidence 804(a)’s definition of unavailability, which includes situations beyond those requiring medical evidence. The rule’s reference to medical or psychological evidence applies specifically to determinations of potential strain, but courts may also rely on Rule 804(a)’s broader definition. The court distinguished State v. Seale, noting that case involved an eleven-year-old who could at least say “I don’t remember,” while C.M. provided virtually no verbal responses. Regarding the discovery violation, the court applied harmless error analysis, finding the undisclosed letter was not critical given overwhelming evidence of guilt.

Practice Implications
This decision gives trial courts significant discretion in unavailability determinations for child witnesses. Practitioners should create detailed records when questioning child witnesses, documenting both verbal and nonverbal responses. The court’s expansion of Rule 804(a) beyond its enumerated categories represents a significant development in hearsay law for child testimony cases. Defense attorneys should be aware that mere presence of a child witness does not guarantee their availability for testimony purposes.