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NCJRS Abstract

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NCJ Number: 153597 Find in a Library
Title: Should We Believe the People Who Believe the Children?: The Need for a New Sexual Abuse Tender Years Hearsay Exception Statute
Journal: Harvard Journal on Legislation  Volume:32  Issue:1  Dated:(Winter 1995)  Pages:207-254
Author(s): R G Marks
Date Published: 1995
Page Count: 48
Type: Legislation/Policy Analysis
Format: Article
Language: English
Country: United States of America
Annotation: This article analyzes the use of hearsay evidence, specifically the out-of-court statements of child declarants, in criminal prosecutions for the sexual abuse of children.
Abstract: Part I discusses the nature of hearsay, focusing on the reliability, desirability, and constitutionality of using child hearsay in criminal prosecutions. Part II analyzes the legal rules under which States currently admit child hearsay in sexual abuse prosecutions. The author argues that the expanding scope of the traditional exceptions and the use of the residual exceptions are problematic. There is little reason to believe that statements admitted under the expanded traditional definitions are trustworthy, and the residual exceptions have insufficient guidelines and discourage children from testifying. Part II also evaluates how well the different State tender-years statutes, passed by 34 States, achieve three objectives: ensuring that only trustworthy hearsay is admitted, encouraging the child to testify, and being as inclusive as possible without violating either of the first two objectives. The author concludes that none of the current statutes is optimal. Part III proposes a model tender-years hearsay exception statute that divides children's out-of-court statements into four categories of trustworthiness. This statute would admit the most reliable statements, even if the child is available but refuses to testify, without requiring corroborative evidence of the act; allow the next most reliable statements if the child either testifies or is unavailable and there is corroboration; admit slightly less reliable hearsay only if the child testifies and is subject to cross-examination at the proceeding or by means of a videotaped deposition or closed circuit television; and prohibit the admission of the least reliable statements. Appended model statute and 234 footnotes
Main Term(s): Court procedures
Index Term(s): Child Sexual Abuse; Child victims; Hearsay evidence; Rules of evidence
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