Judge rules on hearsay evidence

By RICHARD HANNERS

Whitefish Pilot

One of the five young boys allegedly abused by a man who worked at the Montes-sori Children's House in Whitefish will be allowed to testify on videotape, and statements made by the five boys to their parents will be admissible under the state's hearsay exception rule.

Flathead County District Court Judge Stewart Stadler issued his ruling in the state's case against David Farr, 37, of Whitefish, on March 1 after three hearings on the hearsay exception rule were held in December and January.

The six-day trial is scheduled to begin on Friday, March 16, at 3 p.m.

Farr was arrested March 1 last year and charged with five counts of sexual assault. He pleaded not guilty at his March 15 arraignment. Whitefish attorney Jack Quatman represents him.

The investigation and prosecution of the case was expected to be difficult and delicate. The five boys ranged in age from 2 1/2 to 4 1/2 years old when their parents allegedly first heard the children say something indicating sexual abuse.

According to court documents, the boys referred to sexual acts, used Farr's name and mentioned the school's basement when talking to their parents.

The county attorney's office filed a motion last April to introduce the statements made to parents under the hearsay exception rule. Experts were brought to the Flathead to interview the boys and to look at the evidence, and Stadler used that information in making his ruling.

One of the five boys, now four years old, was able to reliably report and knew the difference between truth and lies, according to Mindy Mitnick, a licensed psychologist from Minneapolis.

Stadler will allow that boy to testify, but he will be videotaped ahead of time. Mitnick noted that it was hard to predict how the four-year-old would perform in a court setting.

A five-year-old boy could reliably report but could not consistently tell truth from lies, while the other three boys had limited abilities to report and could not consistently tell truth from lies, Mitnick found, according to the findings of fact in Stadler's ruling. They will not be allowed to testify, Stadler ruled.

Stadler also ruled that the statements made by the boys to their parents were spontaneous and not elicited by suggestive questioning, and that the statements were made within a year of the alleged abuse. For those reasons, the statements are reliable and admissible, he said.

Stadler also allowed statements made by a three-year-old boy to clinical psychologist Jennifer Simon to be admitted, but he ruled that statements made to Columbia Falls Police Det. Brandy Arnoux could not be admitted because she was collecting evidence as a police officer at the time.

In a 27-page motion filed Feb. 9, Quatman provided a litany of reasons for not accepting the boys' testimony and the statements they allegedly made to their parents.

"Even before this court considers the hearsay exception as provided for children, this court must make a determination that the witness is capable of understanding the duty to tell the truth and that the witness can take an oath that the witness will testify truthfully," Quatman said. "Otherwise, the witness is disqualified from testifying."

Quatman claimed that the boys had changed their stories over time and suggested they did not have an independent recollection of events. One boy, for example, had simply told police that Farr "was not nice" but later allegedly referred to sexual touching while talking to his parent, Quatman said.

One parent had allegedly told her son that Farr had hurt other children and was going to jail, Quatman said. There was no spontaneity when statements were drawn out by a parent, he said.

He also suggested some of the parents themselves would not make good witnesses. One mother, for example, had said she was "so overwhelmed" and "so freaked out" by the situation.

In addition to leading and suggestive questioning by parents, Quatman suggested some of the boys' statements could have been reinforced by reward. Each time a boy referred to alleged sexual touching, a parent would tell the boy how much he was loved and how brave he was, followed by a hug, Quatman said.

Quatman also suggested that in one case an older brother could present a "possible contamination problem." He also noted that one of the five boys had said he didn't like the school. A parent had also said she didn't like the school, Quatman said.

Stadler, however, found that the boys' statements to their parents were reliable and admissible. He also noted that in most sexual abuse cases, young victims who report abuse first tell their mothers about the abuse.