By Joseph Meyer. Full text here.
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.