1905

This is a close call.

The defense argument is that these statements qualify as testimonial under Crawford because they describe a crime and accuse someone of committing it. The statements are not mere "casual remarks." They are made to the authorities in the sense that, to a child, a parent is authority.

The prosecutor would probably argue that these remarks are not testimonial because they were brief and informal, not made to police, and not made with the intent to aid in an investigation.

The courts are split, but probably a majority would find the hearsay not testimonial and admit it, but that decision would have a lot to do with the politics of child abuse cases -- what judge (especially one who must be elected) wants to exclude the child’s statement and allow a potential child molester to go free?

Questions? Email tanford@indiana.edu and refer to 1905

In cases involving child victims, most courts hold a pretrial hearing on whether the child is competent to testify, at which the defense has an opportunity to cross-examine the child. If that occurred in this case, and the defense was present and asked some questions, does that change the equation and make the statement admissible under Crawford because there has been actual confrontation? When you think you know the answer, click here