Testimonial Hearsay as a Challenge in the Criminal Justice System


The high number of criminal cases puts a lot of pressure on the justice professionals to resolve the cases in time. However, in a hurry, some crimes may be under-punished or over-punished. Such cases may involve hearsay, which may not be admissible in a court of law. In a recent article, Tchividjian (2015) writes about child abuse prosecution whereby a three-year-old boy was assaulted by his mother’s boyfriend, leaving him with “visible whip marks on his face and upper back.” The boy told a teacher that Darius Clark also known as “Dee Dee” beat and burned his 22-month-old sister. However, the presiding judge ruled that the boy could not testify due to his young age (Tchividjian, 2015).

Although Clark was sentenced to 28 years in prison, an appellate court reversed his conviction on the basis that the teacher’s testimony regarding the boy was in violation of Clark’s “constitutional right to confront his accuser” (Tchividjian, 2015) thus sending the case to the United States Supreme Court. Tchividjian (2015) goes on to explain the testimonial hearsay, which is used out of court to prove a matter asserted in a statement. However, such testimonial hearsay statement is admissible in court if the defendant cross-examines the person giving the evidence. As such, if the “original declarant does not testify at the trial,” then the defendant’s constitutional right of cross-examination would have been violated.

Testimonial Hearsay

Testimonial statements are made to criminal justice professionals or government employees while hearsay statements are made to neighbors, friends, family, or co-workers. For testimonial hearsay to be admissible in court, the unavailability of the declarant or a beforehand opportunity for the declarant’s cross-examination according to the confrontation clause of the Sixth Amendment to the U.S. Constitution set in Crawford v. Washington, 541 U.S. 36 (2004). Therefore, the criminal justice system faces the problem of lack of the opportunity to confront and question the declarant on the statement they made out of court. Testimonial hearsay also affects the defendant in that they do not cross-examine the original declarant. Conversely, the victim of the crime may fail to get the proper justice since the declarant may possess crucial information regarding the case.

Additionally, criminal justice professionals may have problems differentiating between non-testimonials from testimonial statements, especially in child abuse cases since children are less likely to complain to the police. Further, the difficulty of discerning testimonial hearsay may lead to consternation for prosecutors. (Tchividjian, 2015) explains that testimonial hearsay may require a child to testify in court to reinforce their previous out-of-court statement. However, children find it difficult to give evidence in court thereby affecting child abuse prosecutions when determining who constitutes law enforcement.

Tchividjian (2015) notes that if the Supreme Court decides that child abuse disclosure is to be termed testimonial, then prosecutors would not be able to prove child abuse cases, especially for very young children or emotionally vulnerable children. However, the defendant may victimize the child thus avoiding prosecution because they would not be subjected to cross-examination exercise. There have been some cases in which criminal convictions have been overturned because out-of-court statements made by children were admitted after they failed to testify (Morin, 2005). Once a child makes a disclosure, the law enforcement should protect them from immediate harm. They should be taken to a child advocacy center for an interview, which should be videotaped. Such interviews should then be used as evidence against the defendant.

Courts should also hold that by exploiting a child’s vulnerabilities to ensure that they would not be available to testify in a trial, the defendant would have forfeited their confrontational rights. The ruling in the Crawford case can be termed as a significant loss of evidence from criminal trials. The out-of-court statements may thus be taken by government agents for them to be considered testimonial with the witness having expectations that the statement would be used during the trial.

The prosecution could combine elements of the government-centered standard and declarant-centered standard. Therefore, if the child foresees later prosecutorial use, then the declarant’s statement would be testimonial. Further, the criminal justice system should admit the child’s unsworn prior statement as substantive evidence. They could also adopt Rule 804(b), which permits the substantive use of a declarant’s statement taken by the police officer in the presence of the accused, even if the accused had the chance to deny or explain such statement (Fishman, 2010). The Criminal justice system should also create a permissive presumption explaining that the child was pressured by the defendant not to testify, and as a result, forfeiting the confrontational rights of the accused.

The Crawford ruling has affected the prosecution of child physical abuse and domestic violence, especially when children are the key witnesses. In some cases, a mother may be the victim, while her child, the witness. In such cases, if the mother is unavailable, the child may not cooperate, which presents a great challenge to the perpetrator’s prosecution and provision of justice to the victim. The criminal justice team handling the case should carefully document the child’s report soon after the first statement about abuse.

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