The case of Crawford v. Washington has turned upside down the traditional Confrontation Clause jurisprudence under Ohio v. Roberts. Now, prosecutors must produce for cross-examination the declarants of all testimonial hearsay that is admitted unless (1) the declarant is shown to be unavailable and (2) there has been a previous opportunity for cross-examination. However, a series of state statutes designed to protect child victims of certain sexual and violent crimes (this Note uses Minnesota, Wisconsin, and California as examples) allow for certain out-of-court statements to be admitted even when there is no opportunity for cross-examination. Based on analysis in this Note, those statutes impermissibly violate defendants’ rights under the Confrontation Clause. An obvious solution would be to simply repeal the statutes and compel all child declarants to appear in all criminal trials. However, that solution would ignore the interests of the traumatized children that the statutes are designed to protect. This Note proposes two ways that the laws could be amended in order to protect children where possible but still comport with the Confrontation Clause. First, the statutes could be changed to allow for the children to testify by live, two-way video rather than excuse their appearance outright, thereby providing a meaningful opportunity for live cross-examination but still saving the children from being face to face in the same room with their alleged assailants. Second, the statutes can be amended to apply only to non-testimonial hearsay, allowing for trial courts to apply the evolving definitions of “testimonial” handed down by the Supreme Court and only excuse the child from testifying in situations where doing so would not constitute a Confrontation Clause violation under the current state of the jurisprudence.
Case Comment: Bhogaita v. Altamonte
EVERY DOG CAN HAVE HIS DAY IN COURT: THE USE OF ANIMALS AS DEMONSTRATIVE EXHIBITS Kyle R. Kroll, Volume 100, Online Managing Editor In Bhogaita v. Altamonte, the Eleventh Circuit recently decided whether to allow a dog in the courtroom as a demonstrative exhibit. Although the case presented many serious [...]
Revisiting Water Bankruptcy
REVISITING WATER BANKRUPTCY IN CALIFORNIA’S FOURTH YEAR OF DROUGHT Olivia Moe, Volume 100, Managing Editor This spring, as “extreme” to “exceptional” drought stretched across most of California—indicating that a four-year streak of drought was not about to resolve itself—Governor Jerry Brown issued an unprecedented order to reduce potable urban water [...]
Defying Auer Deference
DEFYING AUER DEFERENCE: SKIDMORE AS A SOLUTION TO CONSERVATIVE CONCERNS IN PEREZ v. MORTGAGE BANKERS ASSOCIATION Nicholas R. Bednar, Volume 100, Lead Articles Editor* On March 9, 2015, the Supreme Court of the United States handed down its decision in Perez v. Mortgage Bankers Association.F The Court overturned the D.C. [...]