Two critical evidentiary issues in child sexual abuse cases: closed-circuit testimony by child victims and exceptions to the hearsay rule.

Summary

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Several recent U.S. Supreme Court decisions have endangered the Confrontation Clause rights of defendants in child sexual abuse cases. Coy v. Iowa and Maryland v. Craig concern allowing child witnesses to testify without face-to-face confrontation, either by closed-circuit television or from behind a screen. Idaho v. Wright and White v. Illinois concern hearsay exceptions. The White case in particular is not limited to child sexual abuse cases, but threatens the Confrontation Clause rights accorded to all criminal defendants.

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Two critical evidentiary issues in child sexual abuse cases: closed-circuit testimony by child victims and exceptions to the hearsay rule.

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I. Introduction

The American public is often outraged by its perception that our criminal justice system offers greater protection to the accused than to the child victim involved in a child sexual abuse prosecution. This perception most often stems from the evidentiary requirements and procedural rules in criminal cases, which, to the outside observer, appear indifferent to the emotional needs and well-being of the child victim. Such a view fails, however, to acknowledge the importance of the accused's constitutional rights, particularly those secured by the Sixth Amendment's Confrontation Clause.(1)

Commentators often cite evidentiary issues in their criticism of the criminal justice system's handling of the problems frequently associated with child sexual abuse cases. They note that it is often the case that the child victim is the only witness, the victim is of an age at which she is not considered to be a particularly reliable witness, and there is little or no evidence of the type to which our criminal system accords validity.(2) There often is little or no corroborating evidence, and the case may depend solely upon the child's accusations.(3)

The United States Supreme Court has acknowledged the difficulties inherent in detecting and prosecuting child sexual abuse cases.(4) Legislatures and courts at both the federal and state levels have also responded to claims that courtroom appearances are traumatic and even damaging to children, enacting statutory procedures to make the courtroom more child-friendly.(5)

The response to measures making the courtroom more child-friendly has varied greatly. Child advocates and prosecutors often see these measures as long-awaited breakthroughs. Moreover, a majority of the Supreme Court has held that in some instances, concern for the well-being of a child may justify the use of alternative procedures that compromise the accused's Sixth Amendment right to confront the witnesses against her.(6) Other commentators, including several Justices, defense attorneys and commentators have argued, however, that many of the measures aimed at protecting child victim witnesses violate the Sixth Amendment's absolute guarantee of confrontation.(7)

This Note will examine two evidentiary issues arising in child sexual abuse cases that have been challenged as violating the Sixth Amendment's Confrontation Clause. First, Part II will analyze two recent Supreme Court decisions which addressed attempts by the state to eliminate face-to-face confrontation between the accused and the child witness. The Note will argue that, while protecting a child victim from severe harm is a compelling state interest, the Supreme Court's standard for eliminating face-to-face confrontation does not adequately protect the accused's Confrontation Clause rights and departs from the Court's earlier precedent.

Part III will explore recent Supreme Court jurisprudence on the admission of hearsay statements in child sexual abuse prosecutions. While the Supreme Court has adequately protected the accused's Confrontation Clause rights when the hearsay exception involved is not "firmly rooted," it has failed to provide adequate protection in cases in which a "firmly rooted" hearsay exception has been invoked.

The Supreme Court has ruled that a statement falling within a "firmly rooted" hearsay exception satisfies the requirements of the Confrontation Clause without further inquiry as to whether the person who made the statement is unavailable, or as to whether there are sufficient indicia of reliability. The Court's ruling has left open the possibility for courts and majority-ruled legislatures to create "firmly rooted" hearsay exceptions, and has thus condoned the erosion of the Confrontation Clause.

Part IV will examine the effects of the recent Supreme Court decisions, focusing on the resulting trends in lower federal and state court decisions. As will be discussed, the Confrontation Clause rights of the criminal defendant are in jeopardy.

II. Alternative Testimonial Procedures

The Sixth Amendment provides in relevant part: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."(8) In...

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