Admissibility of Children's Statements in Sexual Abuse Prosecutions: Prompt Complaint, Excited Utterance, Medical Diagnosis or Treatment, Child Sexual Abuse Hearsay Exception; Confrontation Clause

Abstract

In a prosecution for child sexual abuse, the alleged victim’s statements may be admissible in evidence as an excited utterance, a statement for purposes of medical diagnosis or treatment, as a prompt complaint, or pursuant to a jurisdiction’s specific child sexual abuse hearsay exception.In assessing the current state of the waterfront with respect to the admissibility in a criminal prosecution of statements made by child victims of sexual abuse, the most glaring recent development is the backsliding caused by the United States Supreme Court’s reinterpretation of the Confrontation Clause beginning with Crawford in 2004.If the child declarant is unavailable to testify at trial, out-of-court statements of the child victim of sexual abuse are now much, much less likely to be admissible at trial. Many of such statements will have been made to law enforcement personnel. Each and every one of such statements made to law enforcement personnel, including SART personnel, must be subjected to the Confrontation Clause primary purpose testimonial/nontestimonial test. While some initial excited utterance statements to law enforcement personnel, admissible under the rules of evidence regardless of whether the declarant testifies, will be held to be nontestimonial, many others will not pass constitutional Confrontation Clause scrutiny. More significantly, all subsequent statements that were made by the unavailable to testify at trial child victim of sexual abuse as part of a subsequent ongoing investigation, in spite of admissibility of many under a state specific child sexual abuse hearsay exception, are now clearly inadmissible in a prosecution of the alleged abuser. The foregoing may be one of the most serious, hopefully, unintended consequences of the United States Supreme Court ill-advised primary purpose testimonial/nontestimonial Confrontation Clause adventure.