¶1I dissent from that part of the majority opinion which affirms the trial court’s evidentiary ruling that the mother could testify as to what her three-year-old child told her. The majority, in my opinion, has mistakenly found the statement admissible under A.R.E. Rule 803(25), just as the trial court did.
¶2The twenty-five (25) different exceptions to the hearsay rule, which are listed in Rule 803, are phrased in terms of the non-application of the hearsay rule, rather than in positive terms of admissibility. This was done by the drafters in order to reject any implication that other possible grounds for exclusion are eliminated. See J.B. Cotchett & A.B. Elkind, Federal Courtroom Evidence, 256 (2d Ed. 1988). Among those other grounds for exclusion is the lack of competency by the declarant.
¶3Before a witness can testify at trial, either directly or through the testimony of another, the witness must be competent. Wigmore states:
The hearsay rule is merely an additional test or safeguard to be applied to testimonial evidence otherwise admissible. The admission of hearsay statements by way of exception to the rule, therefore presupposes that the assertor possessed the qualifications of a witness. . . . (emphasis in the original.)
¶45 J.H. Wigmore Evidence § 1424 (Chadbourne rev. 1979).
¶5The qualification of a person to be a witness is a preliminary question to be determined by the trial court. The criteria for determining the competency of a witness are: (1) the ability to understand the obligation of an oath; (2) an understanding of the consequences of false swearing; (3) the ability to receive and retain accurate impressions; and (4) the capacity to transmit a reasonable statement of what has been seen, felt, or heard. Chambers v. State, 275 Ark. 177, 628 S.W.2d 306 (1982).
¶6Here, the declarant was a three-year-old boy, who was labeled a “slow learning child” by the deputy prosecutor, and a “slightly retarded” three-year-old child by the defense attorney. His competency was assessed by the trial judge at a preliminary hearing. Because it is so unarguably clear from that hearing that the child was not competent, it is set out in full:
(THEREUPON, Michael Cook was brought into Chambers; then the following proceedings occurred:)
THE COURT: Michael. Michael. Hi.
MICHAEL COOK: Hi.
THE COURT: Come here. Come here. I want to talk to you a minute.
MICHAEL: No.
THE COURT: Well, let your daddy sit right here. I want you to sit right here and your daddy can sit right beside you. Right here. Sit right here. Sit in his lap. How are you?
MICHAEL: Fine.
THE COURT: You’re a nice looking young boy. How old are you?
MICHAEL: Four.
THE COURT: Four years old? My goodness gracious. Where’d you get that pretty shirt?
MICHAEL: At home.
THE COURT: At home? Do you know who this is over here? That’s Mrs. LaRue. [Deputy Prosecutor] She’s a friend of mine and she’s a lawyer. She wants to talk to you a little bit. Okay? You see that lady back there? See that woman way back there? She has to — Everything that you say, she’s got to write it down on a piece of paper. So, will you talk up real loud? Oh, please do. Talk up real loud. Say, “Yes, sir.”
MICHAEL: Yes, sir.
THE COURT: Okay. That’s good. If you do that when she talks to you, then she can write it down. Okay?
MRS. LaRUE: Hi, Michael.
MICHAEL: Hi.
MRS. LaRUE: Keep your hand down from your mouth so everybody can hear what you’re saying. Okay? Will you state your name, please? Will you tell us what your name is?
MICHAEL: Michael Cook.
MRS. LaRUE: Speak up.
THE COURT: Louder.
MRS. LaRUE: Can you say that louder? Say what your name is.
MICHAEL: Michael Cook.
MRS. LaRUE: There you go. That’s good. How old are you?
MICHAEL: Four.
MRS. LaRUE: Four years old. Do you have any brothers or sisters?
MICHAEL: Yeah.
MRS. LaRUE: Who?
MICHAEL: At home.
MRS. LaRUE: Who? Who? Do you have a little brother?
MICHAEL: Yeah.
MRS. LaRUE: What’s his name.
MICHAEL: Justin.
MRS. LaRUE: Justin? How old is Justin?
MICHAEL: Four.
MRS. LaRUE: Justin’s not four. How old is he?
MICHAEL: One.
MRS. LaRUE: There you go. That’s good. Who are you with? Who are you sitting with?
MICHAEL: My daddy.
MRS. LaRUE: Yeah. Michael, do you know who Abram [the appellant] is? You know who Abram is.
MICHAEL: What?
MRS. LaRUE: Huh? Do you remember who Abram is? Is Abram your uncle?
THE COURT: Speak up.
MRS. LaRUE: Take your hand out of your mouth.
THE COURT: Speak up. Do you know who Abram is? Do you remember who Uncle Abram is?
THE COURT: Say something. Say something. Answer her out loud.
MRS. LaRUE: Yes? No?
MICHAEL: No.
MRS. LaRUE: You don’t know who he is?
MICHAEL: No.
MRS. LaRUE: Do you remember who used to live next to your trailer? Remember when you lived in a trailer where your grandmother lives?
MICHAEL: Yeah.
MRS. LaRUE: You remember that? Who else lived over there?
MICHAEL: My papaw.
MRS. LaRUE: Who else?
MICHAEL: My meemaw.
MRS. LaRUE: Okay. Who lived in the other trailer?
MICHAEL: I don’t know.
MRS. LaRUE: Did you live in one of the trailers? Did you and your mom and dad at one time live over there?
MICHAEL: (moves head)
THE COURT: Is that, “No”?
MICHAEL: No.
MRS. LaRUE: You never did?
MICHAEL: (moves head)
THE COURT: No?
MRS. LaRUE: And you can’t tell us who Abram is? You don’t want to or you can’t?
MICHAEL: I don’t want to.
MRS. LaRUE: How come you don’t want to?
MICHAEL: I don’t want to.
MRS. LaRUE: Are you afraid?
MICHAEL: Cause.
MRS. LaRUE: Cause why?
MICHAEL: I don’t want to.
MRS. LaRUE: Do you want to ask him any questions?
MR. MADDEN [Defense Lawyer]: I don’t think so.
MRS. LaRUE: Do you think you could just tell us while the Judge is here who Abram is. He wants to know.
MICHAEL: Yeah.
MRS. LaRUE: Would you just look at him and tell him who Abram is?
MICHAEL: He’s Abram.
THE COURT: But who is Abram, Michael?
MICHAEL: Michael.
THE COURT: No. Who is Abram? Is he your uncle?
MICHAEL: Yeah.
THE COURT: Where does he live? Do you know where he lives?
MICHAEL: Yeah. By my meemaw.
THE COURT: Over there in that other trailer? Okay, Do you remember Abram — Is he in the room today? Is Abram in the room today?
MICHAEL: (moves head)
MRS. LaRUE: Did you look?
THE COURT: Look over there and see if you see him. Do you know that man over there?
MICHAEL: No.
THE COURT: Huh?
MICHAEL: No.
THE COURT: You don’t know that man over there? Do you want to walk over there and look at him? You don’t know him? Speak up. Do you know him? Yes or no?
MICHAEL: No.
THE COURT: That’s not Abram, huh? I thought that was Abram. Is it?
MICHAEL: No.
THE COURT: Did Abram do something to you several months ago, sometime back?
MICHAEL: (moves head)
THE COURT: He didn’t? Did you tell your mother he did? Speak up. Is that yes or no?
MICHAEL: No.
THE COURT: He didn’t do anything to you and you didn’t tell your mother?
MICHAEL: No.
THE COURT: No?
MICHAEL: No.
THE COURT: Okay. Did that man over there ever do anything to you?
MICHAEL: No.
THE COURT: He didn’t? Okay. Anything else?
MRS. LaRUE: Come and stand right here. Could you do that? Could you come and stand right here? You don’t want to do that? Would you ask Mr. Peebles to look this way.
MRS. LaRUE: Michael. Michael. Look at this man. Do you know who this is?
THE COURT: Can you see him good? Can you see him good? Speak up. Yes or no?
MICHAEL: Yeah.
THE COURT: But it’s not Abram?
MICHAEL: No.
THE COURT: It’s not Abram? Okay.
MRS. LaRUE: Are you scared, Michael?
MICHAEL: (moves head)
MRS. LaRUE: You’re not scared in here?
MICHAEL: No.
MRS. LaRUE: That’s good.
THE COURT: Do you know this man right here? Who is that?
MICHAEL: Papaw.
THE COURT: I thought' that was Abram. That’s not Abram? If that’s not Abram, that must be Abram.
MICHAEL: It is.
THE COURT: Which one?
MICHAEL: (points)
THE COURT: That’s Abram? Well, you just told me it wasn’t. Are you sure this is not Abram? This is your papaw? So, that’s Abram over there? Speak up. Yes or no?
MICHAEL: Yeah.
THE COURT: Now, did that man do something to you sometime back?
MICHAEL: (moves head)
THE COURT: Well, did this man do something to you? You told your mother somebody did, didn’t you? Huh?
MRS. LaRUE: Do you remember talking to your mother one day? Remember when your daddy came home from work. You remember all that?
MR. MADDEN: Can I ask a question?
THE COURT: Sure.
MR. MADDEN: Michael, have you ever talked to this lady? Do you know who this lady is? Huh? Have you talked to her before? You have never talked to her before?
MICHAEL: (moves head)
MR. MADDEN: Okay?
THE COURT: Is that no?
MICHAEL: No.
THE COURT: Have you ever talked to me before?
MICHAEL: No.
THE COURT: Do you want to come back and talk to me again sometime? Okay.
(THEREUPON, Michael Cook left Chambers; then the following proceedings occurred:)
¶7It is readily apparent from the foregoing testimony that the child was not able to receive and retain accurate impressions or to communicate a reasonable statement of what he had seen, felt or heard with regard to the alleged incident, as is required for a competent witness. The trial court did not rule on the declarant’s competency, and the majority opinion acknowledges that “nothing the child did or said can be held by us to have sustained the court’s ruling.” It is my opinion that the child was not a competent witness and, therefore, his statement was not admissible either directly or through his mother. That should decide the evidentiary issue.
¶8However, the trial court went a step further and ruled that, pursuant to Rule 803(25), the statement was corroborated, and, therefore, admissible. The majority opinion makes the same error. In short, both the trial court and the majority tacitly admit that the child is not competent to testify but hold that because the statement is corroborated the mother can testify as to what the incompetent declarant said. If corroboration truly makes an incompetent witness competent, the incompetent witness could testify if his statement where corroborated. In a comparable situation, Lord Blackburn said, “It is impossible that if a person said something, and could not himself if alive have been permitted to give testimony to prove it, he can by dying render that statement admissible. I think that is a self-evident proposition.” Dysard Peerage Case, L.R. 6 App. Cas. 489, 504 (1881). Indeed, the Supreme Court of the United States has held that corroboration is not relevant to the issue of competency. Idaho v. Wright, 497 U.S. __, 110 S.Ct. __, 58 U.S.L.W. 5036 (1990).
¶9Even forgetting the foregoing reasoning, if one would analyze the facts of this case solely under Rule 803(25), this case still must be reversed because the trial court abused its discretion in holding that the statement offered possessed a reasonable likelihood of trustworthiness. Rule 803(25) provides that trustworthiness is to be evaluated by twelve criteria. They are set out below along with the applicable facts:
¶101. Age of child — Three years at the time of the incident. This fact alone practically mandates reversal.
¶112. Maturity of the child — A slightly retarded three-year-old child. From his quoted testimony it is obvious he is very immature. Again, this factor mandates reversal.
¶123. Time of statement — Given soon after the event, thus more likely to be trustworthy.
¶134. Content of the statement — Sufficiently clear child-like language. More likely to be trustworthy.
¶145. Circumstances surrounding the giving of the statement — Testimony showed that the mother had previously falsely accused others of sexual misconduct and had a history of fabricating stories. Immediately after the offense supposedly occurred, she was leaning against a police car laughing. She did not get along with her brother, the accused. She was undergoing psychological counseling and taking antidepressants. Even by her own testimony the mother asked the child leading questions, such as, “What did Uncle Abram do?” and, before answering, he said, “No Mommy, you’ll whip me.” She did not record either her questions or the child’s answers, and her recollection may well not be exact. In fact, her sister and her mother say the child’s statements to them at the time were markedly different.
¶156. Nature of the offense — Sex act with child of tender years would militate against requiring child to testify in court.
¶167. Duration of offense involved — Was alleged to be of short duration, while they were “fighting ding dongs.” It is also material that the child did not want to leave the accused’s home after the alleged incident.
¶178. The relationship of the child to the offender — The alleged offender is the uncle of the child.
¶189. The reliability of the assertion — As set out, the exact words of the child’s statement are questionable. The mother testified that he said, “I had some milk from his ding dong,” but the sister testified that he told her, “I wanted some milk. Uncle Abram got me some milk.” The mother has been a mental patient. Her recollection is doubtful. Most importantly, the child now says the accused did not do it, and says that he did not tell his mother that the accused did it.
¶1910. The reliability-credibility of the child witness before the judge — The testimony shows the child was not credible.
¶2011. The relationship of the child to the one offering the statement — Mother-son relationship.
¶2112. Other corroborative evidence — A medical doctor said the child had a substance on his chin, around his mouth, on his abdomen, and left hand which, under a Wood lamp, looked like sperm, but admittedly, a lot of other substances, such as milk, would have looked the same. This amounts to only some corroboration.
¶22On the whole, the child’s alleged statements as related through the mother do not possess a reasonable likelihood of trustworthiness, and, therefore, the trial court’s ruling should be reversed.
¶23The issue of confrontation and the issue of whether 803(25) has been validly adopted are not raised and are not addressed.
¶24I dissent.