Note: Presuming Innocence: Expanding the Confrontation Clause Analysis to Protect Children and Defendants in Child Sexual Abuse Prosecutions

By Anna Richey-Allen. Full text here.

When a child is suspected of being sexually abused, child advocacy centers provide a supportive environment where social workers, doctors, and psychologists may assess the child’s needs. Forensic interviews are a specialty of the centers. The interviews are often video recorded, and the videotape may later be introduced into evidence. Because children often do not testify at trial due to competency and other issues, statements made during the forensic interviews face hearsay problems and potentially violate the defendant’s Sixth Amendment right to confront his accuser. As a result of Crawford v. Washington, “testimonial” hearsay—later defined as statements made when the primary purpose of the interview was to establish events for prosecution—is only admissible if the witness is unavailable to testify at trial and the defendant had a prior opportunity to cross-examine him.

This Note argues that focusing on the primary purpose of an interview is insufficient to determine whether statements made during these forensic interviews are testimonial. Child advocacy centers have multiple aspirations—including protection of the child’s health and welfare—and fighting over which of those goals is primary can cause courts to ignore circumstances that can, in fact, make the child’s statements testimonial. Expanding the Confrontation Clause analysis to include presumptions ensures a better analysis of the statements. Where prosecutors are directly involved in the interview, or where there is no adversarial-like testing or corroboration of the child’s story, the statements should be presumed testimonial. As this Note will show, such a solution protects defendants from the violation of their rights, and it protects children from the damaging prosecutorial abuses which have haunted child sexual abuse cases in the past.