Wed Feb 2 2005
Rewriting Child Hearsay Exceptions After Crawford
In the 1980's, many states adopted special hearsay exceptions for statements by children. Most of them were tailored to the 1980 U.S. Supreme Court decision in Ohio v. Roberts, 448 U.S. 56 (1980). In that case, the Court said the federal constitution's Confrontation Clause would permit using an out-of-court statement at a criminal trial if the circumstances in which the statement was made showed its reliability. Trial judges could decide when the circumstances showed reliability.
Last year, the Supreme Court fundamentally changed its Confrontation Clause jurisprudence. No longer may trial judges find reliability and thereby dispense with confrontation at trial between declarant and defendant. Crawford v. Washington, 541 U.S. 36 (2004).
Yet many states still have statutes or court rules that require judges to determine whether out-of-court statements by children are reliable. The time is ripe for those states to rewrite their child hearsay exceptions. When they get rid of out-dated confrontation doctrine, they can also adopt precise standards for exempting out-of-court statements by children from the rule against hearsay. As a lawyer, I have seen how little guidance the vague reliability standard gives trial judges. (One reason the Crawford decision rejected letting judges decide reliability is that vague standards are manipulable.)
I have drafted a bill to replace the child hearsay statute in Washington and a letter explaining the bill. I would be glad to receive your comments on the bill.
Copyright © 2005 David S. Marshall
