When Children Take the Stand

December 02, 2011
Author: Alina Jolly

Child Abuse and the Evidentiary Concern

Child abuse is a grave concern in the United States and its victims continue to rise. In the U.S. alone the reported number of child sexual abuse cases has grown at a rate of 2,300 percent since 1991.1  Of the cases that are reported and brought to trial, prosecutors are presented with complex evidentiary issues. Victims of child abuse are rarely able to report the abuse themselves.2  The shame and fear these children feel often procures silence and prevents them from testifying as witnesses against their abusers.3  The Supreme Court’s decision in Crawford v. Washington4  further complicated the production of child testimony, when it restricted the types of statements that could be brought before the court. Courts are now left with the intricate task of determining whether a child’s statements are testimonial in nature. As more and more courts exclude recitations of abuse, the need for a defined standard by the Supreme Court rises. This standard should ascertain an objective analysis of the child’s capacity and competency by taking into account the child’s age, intelligence and experience. It is only through an objective analysis of a reasonable child that courts can properly protect and balance the rights of both the victim and the accused under the Sixth Amendment.    

Crawford and the Sixth Amendment’s Confrontation Clause  

The Six Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right. . . to be confronted with the witnesses against him.”5  This is known as the Confrontation Clause; the purpose of which is to protect the accused against the witness who will “bear testimony.”6  Testimony has been defined by the Supreme Court as a “solemn declaration or affirmation made for the purpose of establishing or proving some fact.”7  Face-to-face confrontation with one’s accuser allows the jury, as well as the judge, to examine a witness’s demeanor. The “uncertainty in a witness’s voice, and the perspiration on his brow” allow the jury to judge accuracy and truthfulness better than any audio, video or written record can allow.8  The protection of this right led the Court to significantly redefine the structure by which testimonial hearsay was admitted under the Sixth Amendment. In Crawford v. Washington the Supreme Court abrogated the testimonial guidelines as followed in Roberts, which only required an “adequate indicia of reliability.”9  The Court favored a new test that requires judges to determine whether statements are testimonial before they can be excluded as hearsay.10  However, the Court purposely failed to give a precise definition of what constituted a testimonial statement. This has left courts without a constructive and cohesive framework for determining which statements are admissible. The Crawford Court gave only minimal guidance. As the rule was applied, any statement made by a declarant who knowingly understood that his statements could be used against a defendant in a future trial were deemed testimonial and would not be admitted.11

Crawford’s effect on Child Abuse Cases and the Need For a Defined Standard

Following Crawford, lower courts now struggle in determining the testimonial nature of a declarant’s statement. Guided by the cases of Davis and Hammon, courts often analyze whether a declarant’s statements were made “during an ongoing emergency and whether the law enforcement official or law enforcement agent’s primary purpose was to establish or prove past events potentially relevant to later criminal prosecution.”12  This has come to be known as the primary purpose test.  The problem with this test, however, is that it ignores the declarant’s perspective, placing emphasis solely on the questioner.14  If the purpose of the interviewer is to gather information for trial, a child’s statement will not be admitted regardless of whether the child understood the purpose or not.   

By focusing on the questioner’s primary purpose, the courts have disregarded the child’s ability to understand the circumstances of the questioning and the consequences of their statements.15  If a court applies the primary purpose test to a child’s statements, these statements will almost always be viewed as testimonial and thereby excluded. This is because these types of statements are rarely made to law enforcement officials as the abuse is occurring or ongoing.16

The Reasonable Child Standard - Considering a Child’s Age, Intelligence and Experience

The Court’s decision in Bourjaily outlines the way that lower courts should treat statements made by child declarants. When determining the testimonial nature of a child’s statement, it is imperative to analyze the child’s understanding. In order for a child’s statement to be testimonial, the child must have understood the nature and consequences of his statements. Younger children may be incapable of making testimonial statements as they lack both the capacity and competency to “bear testimony.”17  It is apparent that some children will be able to recognize and anticipate the weight and consequences of their statements. Therefore, when a child of like age, intelligence and cognitive development understands that he is making an accusation that could adversely affect the accused or that his accusations could be used at a later trial, his statements would be testimonial.18  The child’s age, experience and cognitive development all play into making this decision.19

As the cognitive development and understanding of every child is different, the Supreme Court should refrain from establishing a clear-cut line for determining testimonial hearsay by children.20  In addition to the child’s age, the child’s experience and education should play a role in determining the objective understanding of a child. A child who has been warned about child predators is more likely to recognize sexual abuse than one who has not.21  As such, any statements made to the child should be included in the objective analysis of the child. If the questioner has warned the child about the statements he is making and the consequences of his statements, the child’s statements will have a greater chance of being held testimonial.22

An objective child approach is superior to the primary purpose test currently espoused by a majority of the courts because it captures the protection advocated by the Confrontation Clause.23  Under the reasonable child standard the accused is still protected against accusations and statements made in pursuance to a criminal investigation. Statements made by children of the applicable age, experience and intelligence will not be admissible. Thus, under this standard the credibility of the witness is maintained. As the number of child abuse cases continues to rise, it is vital that the Supreme Court set a clear standard for child testimony.  

A  Call for Action by the Supreme Court

In implementing an objective child standard, the Supreme Court should consider the reasonable anticipations of a child while still safeguarding the rights of the accused under the Sixth Amendment. Thousands of children are abused every year; it is clear that the prosecution of these abusers is of vital importance for our society. Yet, a majority of courts have ignored the teachings of Bourjaily and focused on the primary purpose test, failing to take the child’s perspective into account. Until the Supreme Court clarifies the meaning of testimonial in relation to its decision in Bourjaily, lower courts will continue to struggle with interpretation of the term “testimonial.” If not corrected, the guidelines of Crawford will continue to tip the scale in favor of the accused at the cost of the abused child. By taking into account the age, experience and intelligence of the child the court’s can continue to protect the rights of those accused while also providing a means of justice for those abused. As child abuse cases continue to rise, the call for action rises with it. No longer can the question of testimonial statements be left for another day.  Now is the time for the Supreme Court to act.    


1 Jonathan Scher, Out-of-Court Statements by Victims of Child Sexual Abuse to Multidisciplinary Teams: A Confrontation Clause Analysis, 47 Fam. Ct. Rev. 167, 168 (2009).
2 Brian Fox, Crawford at Its Limits: Hearsay and Forfeiture in Child Abuse Cases, 46 Am. Crim. L. Rev. 1245, 1252 (2009).
3 Anna Richey-Allen, Presuming Innocence: Expanding the Confrontation Clause Analysis to Protect Children and Defendants in Child Sexual Abuse Prosecutions, 93 Minn. L. Rev. 1090, 1099 (2009).
4 Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004).
5 U.S. Const. amend. XI.
6 Crawford, 541 U.S. at 51.
7 Id.
8 Richey-Allen supra note 3, at 1094.  
9 Crawford, 541 U.S. at 40.
10 Crawford, 541 U.S. at 68.
11 Id.
12 Christopher Cannon Funk, The Reasonable Child Declarant After Davis v. Washington, 61 Stan. L. Rev. 923, 948 (2009).
13 Id.
14 Major Rebecca K. Connally, "Out of the Mouth(s) of Babes": (Fn1) Can Young Children Even Bear Testimony?, Army Law., March 2008, at 4.
15 Id.
16 Christopher Cannon Funk, The Reasonable Child Declarant After Davis v. Washington, 61 Stan. L. Rev. 923, 940 (2009).
17 Connally, supra note 14, at 4.  
18 Funk, supra note 16, at 927.
19 Connally, supra note 14, at 19.
20 Funk, supra note 16, at 958.
21 Id. at 959.
22 Id.
23 Id. at 927