Confrontation Clause Not Applied to Child Hearsay Statements

Under Florida Statute 90.803(23) Florida courts may allow a witness other than the child testify as to what type of sexual abuse a child may have told them occurred under certain circumstances. In other words, an alleged sex crime child victim sixteen years of age or less does not have to testify at an accused’s trial as to the specific allegations of abuse. Florida statutes allow that the alleged testimony of the child alleging sexual abuse may be admitted through the testimony of witnesses who claim to have heard the child make statements about being sexually abused. The trial court must hold a hearing to determine if the statement was made under “reliable” circumstances. If the court finds that the child’s out of court statement is reliable the witness may testify if the child testifies or is unavailable. “Unavailable” is defined as a finding by the trial court that the child’s participation in the trial or proceedings would result in substantial likelihood of sever emotional or mental harm. An accused must be notified no later than ten days before trial that the statement that qualifies will be offered at trial. So an accused can learn that his ex-wife who is battling him over child custody may testify as to what the couple’s three year old child allegedly told her. Is that fair?

In Ohio v. Clark, 13-1352 (June 18, 2015), the United State Supreme Court held that the trial court’s admission of out of court statements of a three year old child to his teacher wherein the teacher testified as to what the three year old told the teacher, was not a violation of the accused Sixth Amendment Right to Confrontation or Crawford v. United States. The Supreme Court stated “L. P.’s age, three, further confirms that the statements in question were not testimonial because statements by very young children will rarely, if ever, implicate the Confrontation Clause.” (If you’d like to read the Ohio v. Clark opinion please clink on the link above).

If an adult witness can testify against an accused without the child testifying at trial doesn’t this leave room for any testifying witnesses to lead or influence what statements were allegedly made by a child or teenager, in this case a three year old, as to what the child told the person?

I am not saying that what Clark did was right nor that he shouldn’t go to prison. Nor am I saying anything derogatory about teachers — it just so happens that teachers were the testifying adults in the Clark case.

Apparently, the child was dropped off at preschool when a teacher saw that the child had a bloodshot eye and red welts that looked like belt marks.The teacher asked “Who did this? What happened to you?” to which the child responded “Dee.” Clark was charged with various child abuse-related offenses and the court admitted the preschool teacher’s statement identifying the defendant as the perpetrator.

The Court adopted a general rule that statements made to people who are not law enforcement officers don’t qualify as being “testimonial” for purposes of the confrontation clause’s cross-examination requirement. No one cares for people who abuse children like Clark may have but the more general application of this decision which is considered by scholars to be a MAJOR US Supreme Court decision changing the law– any adult can testify about what a child allegedly said to them without the other party ever being able to cross examine a a child 16 or less – could be a mother in a custody case, a father in a custody case, or a person charged with child abuse and could theoretically involve a child 13, 14, 15 or 16 years of age.

From reading the facts “Dee” Clark sounds like he should definitely be punished if guilty of the offenses charged. No child or teenager should suffer abuse.

However, my concern is how far will the system go to avoid the Confrontation Clause of the Sixth Amendment and the right of confrontation mandated by Crawford v. Washington and allow state statutes, like Florida’s above, or the Federal equivalent statute, to dictate the admission of these potentially “questionable” statements.

For further information on sex crimes please see our website at the Law Offices of M. James Jenkins, P.A.

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