“In all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him.
“One of the most basic rights a defendant has is to confront his or her accuser. Several years back, however, this right dissipated with the introductions hearsay exception laws regarding child sexual abuse cases.
Realizing that children were being severely stressed by having to see defendants in
court, or by the act of testifying, lawmakers enacted laws that allowed a child’s out-of-court statements to be admissible in lieu of live testimony.
In Ohio v. Roberts, 448 U.S. 56 (1980), the court set forth a two-pronged test in order for hearsay to be admissible against a criminal defendant: (1) the declarant generally must be shown to be unavailable; and (2) the statement must have been made under circumstances providing sufficient “indicia of reliability.”
Therefore, if the court ruled that the child’s statements were reliable, the defendant could be convicted without ever having the opportunity to cross examine him or her. This was until Crawford v. Washington, 541 U.S. 36 (2004), came to town.
The latter referenced case is one of the most influential and important cases in sex crimes defense history. The end result of this case was that the Supreme Court ruled that any out-of-court statement that is testimonial in nature is not admissible unless the defendant has had a full and fair opportunity to cross examine the declarant regarding these statements.
With this, child witnesses must testify before any of their out-of-court statements can come into evidence. Prosecutors, however, have several means of countering this law, and if you do not hire a highly experienced sex crimes criminal lawyer, you may in fact lose your right to confrontation.
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