In the Crawford decision, the United States Supreme Court held that a defendant's right to confront witnesses against him bars admission of "testimonial hearsay" unless the declarant testifies at trial, or the declarant is unavailable to do so and the accused had a prior opportunity to cross-examine the declarant. The Court declined to define "testimonial hearsay." It gave examples of testimonial hearsay and said that the extent of it should be worked out in future cases. (Click here for more detail on the Crawford decision.)

In the California case, People v. Sisavath, 2004 WL 1172880 (Cal.App. 5 Dist., 5/27/04), a four-year-old girl was interviewed by police responding to a report she had been molested. She was also interviewed by a trained interviewer at Fresno County's Multidisciplinary Interview Center. The trial court found the girl incompetent to testify. It admitted in evidence her statements in both interviews, and the defendant was convicted.

The prosecution conceded on appeal that the police interview had produced "testimonial hearsay." It argued that the MDIC interview hearsay was not testimonial, but the court of appeal disagreed. The court said:

The pertinent question is whether an objective observer would reasonably expect the statement to be available for use in a prosecution. Victim 2's interview took place after a prosecution was initiated, was attended by the prosecutor and the prosecutor's investigator, and was conducted by a person trained in forensic interviewing. Under these circumstances, it does not matter what the government's actual intent was in setting up the interview, where the interview took place, or who employed the interviewer. It was eminently reasonable to expect that the interview would be available for use at trial.

Since none of the child's hearsay should have been admitted, the court reversed all counts of conviction for crimes against her.

In Snowden v. State, 156 Md.App. 139, 846 A.2d 36 (4/5/04), the defendant was convicted of molesting three girls, two ten-year-olds and an eight-year-old. The prosecution took advantage of a Maryland statute that allowed it to introduce the girls' statements in investigative interviews by a Child Protective Services worker instead of having them testify. (Maryland is the only state with a statute permitting child hearsay to be introduced regardless of whether the child testifies.)

The court of appeals found that the interview statements were testimonial hearsay. It noted that the CPS worker interviewed the girls to obtain hearsay to present in court. It reversed the conviction and ordered that, on retrial, the judge admit no testimonial hearsay by a declarant "who 1) is available to testify, or 2) made the testimonial hearsay statements on an occasion at which the defendant did not have an opportunity for cross-examination." (This phrasing touches on an ambiguity in the Crawford decision. Not all readers of the opinion believe that it requires the prior opportunity for cross-examination to have come at the time of the hearsay. Perhaps it could have come, for example, at a preliminary hearing.)

In People v. Geno, 2004 WL 893947 (Mich. Court of Appeals, 4/27/04), the defendant was convicted of molesting a two-year-old girl. Suspecting abuse, CPS had taken her to the Children's Assessment Center for an interview. There, the girl asked the interviewer to accompany her to the bathroom. The interviewer saw blood in the girl's pull-up and asked if she "had an owie." The girl answered, "Yes, Dale hurts me here," pointing to her crotch. This hearsay was admitted at trial.