Citation

Carr PB. J. Crim. Law Criminol. 2007; 97(2): 631-664.

Copyright

(Copyright © 2007, Northwestern University School of Law)

DOI

unavailable

PMID

unavailable

Abstract

In 2004, the U.S. Supreme Court decided Crawford v. Washington and announced a new rule of confrontation under the Sixth Amendment of the United States Constitution. Under Crawford, courts must exclude all out-of-court statements when those statements were (1) given by a witness who is unavailable to testify at trial and (2) considered 'testimonial' in nature, unless (3) the defendant had a prior opportunity to cross-examine the witness who offered the statements. Crawford has introduced a challenging problem in child sexual abuse cases where children are often unavailable to testify at trial; their out-of-court allegations of abuse are now regularly excluded for their 'testimonial' nature. This development is problematic because children's recollections of events constitute critical evidence in child sexual abuse prosecutions. The question thus arises: how can prosecutors continue to hold child sexual abusers accountable for their crimes while upholding the Crawford rule of confrontation? Many scholars have explored solutions to this dilemma by examining the first two prongs of the Crawford rule-witness unavailability and the testimonial nature of ex parte statements. This Comment suggests, however, that the solution lies in the third prong the 'prior opportunity for cross-examination.' Specifically, this Comment recommends that state legislatures implement a rule of criminal procedure that allows both prosecutors and defendants in sexual abuse cases an opportunity to record a child's pretrial testimony and cross-examination on videotape. This rule would safeguard criminal defendants' confrontation rights while also protecting against the Crawford rule's overly burdensome effects on child sexual abuse prosecutions.