Judge to decide if children will testify in sexual assault trial

By CHERY SABOL

The Daily Inter Lake

District Judge Stewart Stadler must decide whether children who are alleged victims of sexual abuse will have to testify at the trial of David Farr of Whitefish.

He is charged with five counts of sexual assault, allegedly committed against children between the ages of 2 and 4 when he was an administrator at Children's House Montessori School in Whitefish. Farr, 37, pleaded not guilty to the charges in April.

Prosecuting Deputy County Attorney Dan Guzynski filed a notice that he plans to introduce hearsay statements from the children because of their age. He wants to rely on a rarely used exception to the hearsay rule that would allow the children's parents and others to testify about what the boys told them about Farr, instead of forcing them to testify.

The children should be considered unavailable to testify because their ages make them incompetent and because they would be traumatized by testifying, Guzynski wrote.

The Montana Supreme Court has said that very young victims may not be able to recall or to consistently or accurately relate information about offenses in court. If they are found incompetent to testify, out-of-court statements they made to parents, medical personnel or others may become important sources of information.

Farr's attorney, Jack Quatman of Whitefish, said the exception is made only when the children are unavailable as witnesses at trial. Guzynski offered no evidence that Farr's witnesses are unavailable, Quatman said in a brief to the court.

Guzynski maintains that unavailability can be through incompetence, illness or some other reason. Other courts have found that a child's unwillingness or hesitancy to testify constitutes unavailability.

After reviewing police interviews of the children, Guzynski decided, "It is unthinkable that these children… will be able to communicate to a jury in a meaningful way."

After one child was interviewed, he began suffering nightmares again that had previously abated.

Some children were not responsive to investigators' questions. One boy crawled under a chair when Kalispell Police Detective Doug Overman tried to interview him.

The boy "agreed to come out from the chair only if Det. Overman later played hide-and-seek with him," Guzynski wrote in a court brief.

He asked Stadler to review video of the interviews to decide whether the children could be considered available or competent to testify.

Quatman opposed that, saying the question will be whether the children are able to testify later at trial, not how they reacted during an interview some time earlier.

"Since the children are now older, it should be expected that they are more articulate, more trustworthy, more coherent and more cooperative," Quatman told the court.

He made another point.

"As set forth in the state's brief rendition of the victims' statements to the police, it would appear that they were insufficient upon which to base a prosecution, but have nothing to do with unavailability to testify at the time of trial."

Guzynski maintains that the children's statements to their parents and others are reliable and competent. Testifying in court presents a different, tougher environment in which to repeat their evidence.

Stadler was to hold a hearing on the children's availability and competency two weeks ago, but those hearings have been postponed until December.

Farr remains free on $100,000 bond, awaiting trial.

Reporter Chery Sabol may be reached at 758-4441 or by e-mail at csabol@dailyinterlake.com