Child abuse cases commonly present significant hearsay issues which the trial judge must resolve. One of the most difficult issues in a child abuse case is when a child makes an accusation to a third-party, the child does not testify at trial, and the child’s statements that were made to the third-party, are admitted into evidence at trial. Obviously in this situation, cross-examination of the most critical witness (the child) cannot occur. The right of an accused to “confront” – consistently interpreted as the ability to cross-examine – one’s accusers is rooted, and plainly delineated in the text of the Sixth Amendment of the United States Constitution. Child abuse cases present a significant problem in this regard.
Many child witnesses are little more than infants, and have been deemed by many courts to be incompetent to testify given that their cognitive abilities are in the elementary stages of development. This was not always the case. Somewhat surprisingly, Blackstone’s Commentaries reveal that English common law allowed children of any age to be heard, allowing the jury “to hear the narration of the child herself.” However, with the passage of time, and the development of American law, many courts became skeptical of juries’ ability to assess the veracity of such testimony, and began to require that child witnesses demonstrate in pretrial hearings that they could receive and relay accurate impressions of perceived events, and differentiate between truth and lies. If a child was unable to demonstrate competency, frequently his or her statement still came into evidence, via, a statutory exception to the hearsay rule. In general, this is now the state of the law. A child witness which would perhaps otherwise be deemed incompetent to testify, may nevertheless have his or her statements introduced into a child abuse trial through a surrogate.
This obviously creates collides with the Sixth Amendment’s mandate which demands the ability of the accused to confront and be able to question his or her accuser. This emotionally laden issue, which by necessity, must take into account the constitutional rights of persons accused of child abuse, while also considering the need to protect the most vulnerable members of society, will be decided soon by the United States Supreme Court. If the current practice of allowing such hearsay statements into evidence in child abuse trials is found to be unconstitutional, many states will have to adopt an entirely new approach in proving these cases in front of a jury.