U.S. flag

An official website of the United States government, Department of Justice.

NCJRS Virtual Library

The Virtual Library houses over 235,000 criminal justice resources, including all known OJP works.
Click here to search the NCJRS Virtual Library

Confrontation Clause, the Hearsay Rule, and Child Sexual Abuse Prosecutions: The State of the Relationship

NCJ Number
114425
Journal
Minnesota Law Review Volume: 72 Issue: 3 Dated: (February 1988) Pages: 523-601
Author(s)
M H Graham
Date Published
1988
Length
79 pages
Annotation
This article examines the relationship between the confrontation clause and the hearsay rule in child sexual abuse prosecutions.
Abstract
A hypothetical case of child sexual abuse highlights six statements that must be examined under the hearsay rule and confrontation clause for admission into evidence. The admissibility of these statements then is considered under traditional hearsay exceptions and special statutory exceptions, with a focus on particularized guarantees of trustworthiness and exceptions for videotaped statements. Current interpretations of the confrontation clause are discussed with reference to issues relevant to the admission of hearsay statements in evidence, emphasizing the availability of the hearsay declarant and the the reliability of the hearsay statement. Dilemmas created by the U.S. Supreme Court's and other commentator's analyses of this issue are discussed, and it is suggested that the error in previous analyses is that the hearsay declarants were deemed to be witness against the defendant on the sole ground that the prosecution offered the declaration at trial. A better interpretation of the clause is that a nonappearing but available declarant is a witness against the defendant only if the circumstances surrounding the declaration indicate that it was accusatory in nature when made. Such an interpretation would better serve the purposes of the confrontation clause, while avoiding constitutionalizing the hearsay rule and its exceptions. 404 footnotes.