The Confrontation Clause of the Sixth Amendment to the United States Constitution ensures that in criminal cases the accused has a right to confront the witnesses against him or her. This right to confront is usually face-to-face. The Sixth Amendment Confrontation Clause protection applies even when the witness is a child, Coy v Iowa, 487 U.S. 1012 (1988); Maryland v. Craig, 497 U.S. 836 (1990); Crawford v. Washington, 541 U.S. 36 (2003); and Davis v. Washington, 547 U.S. 813 (2006).
However, this Sixth Amendment Confrontation Clause protection does not apply in civil dependency proceedings. Thus, the question of whether the statements of a child witness in a sexual abuse or other civil dependency proceedings may be entered into evidence without the child being present in court so the accused may confront the child is governed by Due Process protections of the Fourteenth Amendment. The distinction between the Confrontation Clause protection of the Sixth Amendment and the Due Process protection of the Fourteenth Amendment raises a set of distinct issues for trial lawyers representing parties in civil abuse and neglect and termination of parental rights cases.
In light of the constitutional distinction, virtually all states have written child testimony hearsay exceptions into their evidence codes, and most courts have generally upheld them. Foundationally, these hearsay exceptions for child testimony in civil proceedings are premised upon the same rationale discussed in Maryland v. Craig, 497 U.S. at 856-57. The child testimony hearsay statutes allow into evidence the out of court, hearsay statements made by the child victim who suffered sexual abuse provided the statements contain the appearance of trustworthiness. To successfully introduce the child’s hearsay statement into evidence, the trial attorney must establish two things: 1) the child must be “unavailable” as a witness, by virtue of distance from the court, or if the child is, while physically available, subjected to significant emotional or psychological trauma in the presence of the defendant such that the child becomes unavailable as in the case of a criminal proceeding; and 2) as required by many civil child sexual abuse statutes, there must be a finding of corroboration of the child’s out of court statement.
This being said, practitioners should not forget that a child’s hearsay statement, and in particular those of a sexual abuse witness, may come into evidence based upon other exceptions to hearsay such as the excited utterance and the exception for statements made for purposes of medical diagnosis or treatment.
At this time, Stephanie Ledesma, would like to take the opportunity to thank her research assistant, Brandon Davenport; her teaching assistant, Anthony Hynes; and one of her many mentors, Professor Michael Dale.