Cole v. State: Clarifying the Tender-Years Hearsay Exception and the Trustworthiness Threshold for 911 CAD Business Records

1. Introduction

On 26 June 2025, the Supreme Court of Mississippi released its decision in James Earl Cole a/k/a James Cole a/k/a James E. Cole v. State of Mississippi, No. 2024-KA-00041-SCT. The Court affirmed Cole’s conviction for attempted statutory rape of his thirteen-year-old step-daughter, Anna. Although the factual underpinnings are disturbing, the opinion is doctrinally important for two evidentiary points:

1. It re-confirms that when a child declarant testifies in court, admission of a recorded Children’s Advocacy Center (CAC) interview under the tender-years exception does not offend the Confrontation Clause.
2. It clarifies what suffices — and what does not — to show “lack of trustworthiness” under Mississippi Rule of Evidence (MRE) 803(6)(E) when admitting computer-generated 911 CAD reports as business records, even where date anomalies and missing audio recordings exist.

These clarifications carry significant implications for child-sexual-abuse prosecutions and for the everyday admission of law-enforcement computer records.

2. Summary of the Judgment

Writing for a unanimous Court, Presiding Justice King rejected all four assignments of error:

1. CAC Interview & Confrontation — No violation occurred because the child testified live; thus Smith v. Arizona (2024) concerning absent witnesses was “completely inapposite.”
2. Admission of 911 CAD Report — Any discrepancy in the printed year (1920 vs. 2020) or the loss of audio did not render the report untrustworthy under MRE 803(6)(E).
3. Expert’s “Consistency” Testimony & Prosecutor’s Closing — The expert permissibly stated Anna’s disclosures were “consistent with a sexually abused child,” and the prosecutor’s slight exaggeration (“exactly consistent”) during closing did not create unjust prejudice.
4. Cumulative Error — With no individual error, cumulative error doctrine was inapplicable.

Finding no plain or reversible error, the Court upheld Cole’s 50-year sentence (30 to serve).

3. Analysis

3.1 Precedents Cited

• Smith v. Arizona, 602 U.S. 779 (2024) – Discussed but distinguished; Smith deals with forensic-analyst substitutes and absent witnesses.
• Johnson v. State, 155 So. 3d 733 (Miss. 2014) – Sets the plain-error framework when issues are not contemporaneously objected to.
• Bishop v. State, 982 So. 2d 371 (Miss. 2008) – Authorizes expert testimony that a child’s account is “consistent with sexual abuse” so long as the expert does not opine directly on veracity.
• Harris v. State, 970 So. 2d 151 (Miss. 2007) – Governs cumulative-error doctrine.

Collectively, these authorities guided the Court in (a) limiting Confrontation-Clause scrutiny to situations involving absent witnesses, (b) defining acceptable expert commentary, and (c) applying the plain-error and cumulative-error filters.

3.2 Legal Reasoning

3.2.1 Tender-Years Exception & Confrontation Clause

MRE 803(25) makes a child’s out-of-court statement admissible if the court finds “substantial indicia of reliability” and either the child testifies or is unavailable with corroboration. Key factors applied:

• Age & Development – Thirteen with intellectual delays.
• Temporal proximity – Interview occurred the day after the incident.
• Neutral setting / professional interviewer.
• Lack of motive to lie coupled with adverse life consequences.
• Child’s live testimony at trial.

Because Anna was present and cross-examined, the Court found no Confrontation concerns, underscoring that Smith’s rationale on substitute analysts “does not translate to a testifying child declarant.”

3.2.2 911 CAD Report as Business Record

Rule 803(6)(E) allows exclusion only if “the source or the method or circumstances indicate a lack of trustworthiness.” Cole argued untrustworthiness because:

• Loss of audiotape (server crash).
• Date discrepancy (April 13 1920 vs. 2020).

The Court emphasized that:

1. The audio and CAD systems were different; the crash of one did not taint the other.
2. The document was otherwise identical; human operators cannot edit timestamps; 911 did not exist in 1920, making a clerical software glitch the likely explanation.
3. Defence cross-examination exposed the discrepancy, giving the jury a basis to weigh credibility.

Accordingly, the anomaly, while “problematic,” did not constitute plain error.

3.2.3 Expert & Prosecutorial Comments on Veracity

Following Bishop, an expert may say a child’s statement is consistent with abuse but may not declare the child truthful. Barnette stayed within that boundary; the prosecutor’s phrase “exactly consistent” was deemed argument, not testimony, and insufficiently prejudicial.

3.3 Likely Impact

The decision cements two practical rules:

1. Tender-Years Plus Live Testimony = Safe Harbor When a child testifies, defense attempts to premise a Confrontation-Clause violation on admission of the CAC video will almost certainly fail in Mississippi.
2. Technical Anomalies Must Be Outcome-Determinative Minor clerical or software irregularities in computer-generated law-enforcement records will not automatically defeat admissibility. Counsel must demonstrate how the glitch undermines the record’s substantive reliability.

Prosecutors now have clearer guidance for getting CAC videos and CAD logs before the jury. Defense counsel, conversely, must marshal concrete evidence of manipulation or unreliability rather than generic objections.

4. Complex Concepts Simplified

• Tender-Years Exception – A hearsay rule allowing young children’s statements about sexual abuse into evidence if reliability is shown.
• Confrontation Clause – The Sixth-Amendment right of a defendant to face and cross-examine witnesses against him.
• Business-Records Exception (MRE 803(6)) – Permits admission of regularly kept records (like 911 logs) without live testimony from every recorder, unless shown untrustworthy.
• Plain-Error Review – Appellate review applied when trial counsel did not object; reversal occurs only if an obvious error affected a fundamental right or fairness of the trial.
• Cumulative-Error Doctrine – Even if individual errors are harmless, their combined effect can mandate reversal; no errors = no cumulative error.

5. Conclusion

Cole v. State does not blaze new constitutional trails, but it meaningfully refines Mississippi evidentiary practice. By confirming that:

1. Live testimony cures Confrontation issues for tender-years hearsay, and
2. Trustworthiness under Rule 803(6) demands more than a clerical quirk or missing parallel record,

the Court provides prosecutors and trial judges with a sturdier roadmap for child-sexual-abuse trials and day-to-day admission of digital police records. Defense counsel are on notice that future challenges must be more granular and evidentiary in nature. Ultimately, the ruling reinforces the balance between child-victim protections and defendants’ confrontation rights, while safeguarding the evidentiary reliability gatekeeping function.