Document Type

Article

Publication Date

2011

Abstract

A three-year-old child, while being bathed by her babysitter, innocently mentions that her “pee-pee” hurts. When the babysitter asks the child how she hurt it, she says, “Uncle Ernie (her mother’s boyfriend) told me not to tell.” A subsequent medical examination reveals that the child has gonorrhea, a sexually transmitted disease.

By the time of trial, the child is four and-a-half-years old. When questioned by the trial judge, she cannot explain to the judge’s satisfaction, “the difference between the truth and a lie.” Moreover, she has no long term memory of the incident. The judge rules the child incompetent to testify.

Can the child have made a reliable statement a year and a half before? Should the babysitter’s testimony be admitted, if it otherwise falls within a hearsay exception? If the statement is nontestimonial under Crawford v. Washington and its progeny the due process clause governs, rather than the confirmation clause.

The author’s thesis is that ruling on the admissibility of the child’s out-of-court statement should be informed by social science research in the field of developmental psychology. That research has shown that young children’s statements regarding recent events may be just as, or even more, reliable than adult’s observations and recollections. She proposes that if a child of the declarant’s age could have made a reliable statement of the type offered it ought to be admitted, and attacks on the child’s credibility should go to the weight of the evidence.

Even if the child is found competent and permitted to testify at trial, a young child’s testimony may be either not forthcoming (like that of an adult domestic violence victim) or simply ineffective due to the child’s being confused by complex questions inappropriate to her age.

The confrontation clause will not bar even testimonial hearsay statements when a child testifies at trial. The author argues that, in this situation, too, hearsay that passes the due process test should be admitted. Additionally, she argues that the judge ought to employ Evidence Rule 611(a) to preclude developmentally inappropriate questioning of young witnesses.

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