Court of Appeals Affirms Admission of Child’s Journal

Following a jury trial, the defendant in Kendricks v. State was convicted for the offenses of rape and aggravated sexual battery. On appeal, the defendant contended that the trial court erred in allowing into evidence a statement contained in the alleged child victim’s journal that was typed by a therapist who was not named nor called to testify at trial.

The defendant argued that the statement was hearsay and its admission violated his constitutional rights under the Confrontation Clause since he had no opportunity to cross-examine the therapist at trial.

Alleged Victim’s Journal – Ruled Not Hearsay

At the outset, the Court of Appeals noted that a statement will not constitute hearsay if:

• The person who made the statement testifies at the trial;
• The person is subject to cross-examination; and
• The statement is admissible under the rules of evidence.

The journal was created by the child and her therapist during therapy sessions. The therapist and the child would discuss the alleged abuse and then the therapist would type the child’s statements into the journal. Therefore, the appeals court viewed the child to be the journal’s author, with her therapist essentially serving as the transcriber.

The prosecution first used the journal to refresh the child’s memory when she testified on direct examination. She couldn’t remember the answer to a question and was allowed to look at the journal in order to recall it.

The defense attorney then cross-examined the child, asking her about how the journal was created, what she talked about during therapy, and what was contained in the journal. On re-direct, the prosecution asked the judge to admit the journal into evidence. The defense objected, but the trial court judge allowed it to be introduced.

The Court of Appeals concluded that the journal could be admitted into evidence because it did not constitute hearsay under Georgia law. The appeals court found that:

• The child was the declarant of the information in the journal;
• She testified at trial, “I said it, and my therapist typed it”;
• The child had personal knowledge about the journal’s creation and the statements contained in it;
• Her testimony was competent and enough to show the circumstances of how the journal was created;
• There was no evidence her therapist played any role in creating the journal other than typing the child’s words; and
• The defendant’s attorney was able to cross-examine the child about the statements in the journal.

The appeals court also ruled that the journal could be admitted into evidence as a prior consistent statement made by the child. Normally, prior consistent statements are not admissible unless the witness’s credibility is called into question on cross examination. If the defense seeks to claim that the witness’s statement was fabricated, was influenced by another person, or that the witness has an improper motive to lie, a prior consistent statement may then be admitted as an exception to the hearsay rule. The appeals court pointed out that since the defendant’s attorney questioned the consistency of the child’s statements on cross-examination, the defense placed the child’s credibility into question. This, in turn, allowed for the introduction of the journal to refute the notion that she made up the allegations.

Appeals Court Found No Constitutional Error

Lastly, the Court of Appeals addressed whether the introduction of the journal violated the defendant’s Sixth Amendment right to confrontation. It noted that the defendant’s constitutional claim was premised on the suggestion that the therapist was actually the author of the statements in the journal.

However, as discussed above, the appeals court held that the child was the author of those statements, not the therapist. Therefore, it concluded that since the child testified and was subject to cross-examination, the admission of the journal did not violate the defendant’s rights under the Confrontation Clause.

As it was ultimately concluded that the trial court did not abuse its discretion in admitting the child’s journal into evidence, the defendant’s convictions for rape and aggravated sexual battery were affirmed.