Child hearsay statutes: At once over-inclusive and under-inclusive.

Abstract

Special child hearsay statutes allow for the admissibility of demonstrably reliable but otherwise inadmissible children's hearsay. These statutes were one among other child witness innovations that proliferated in the 1980's and 1990's to redress the proof problems that arise in child sexual abuse prosecutions. In this Article, Professor Montoya argues that the special child hearsay statutes are at once over-inclusive and under-inclusive. She argues that these statutes are over-inclusive in that child sexual abuse prosecutions typically include the testimony of the child witness and multiple hearsay witnesses. She argues that these statutes are under-inclusive in that they allow for the admissibility of children's hearsay in child abuse cases but may require the child declarant to be the child victim, excluding the hearsay statements of other child witnesses, and typically do not apply to the hearsay statements of children who witness crimes other than child abuse, like domestic violence. Accordingly, she proposes reforms to remedy these deficiencies in the special child hearsay statutes.