8. Lyon, T.D., & Dente, J. (2012). Child witnesses and the Confrontation Clause. Journal of Criminal Law & Criminology, 102, 1181-1232.

Thomas D. Lyon, University of Southern California

Abstract

Subsequent to the Supreme Court’s ruling in Crawford v. Washington that a criminal defendant’s right to confront the witnesses against him is violated by the admission of un-cross-examined testimonial hearsay, lower courts have overturned convictions in which hearsay from children was admitted after child witnesses were either unwilling or unable to testify. A review of social scientific evidence regarding the dynamics of child abuse suggests two doctrinal approaches that will facilitate the fair receipt of children’s evidence. First, the courts should hold that defendants forfeit their confrontation rights if they exploit a child’s vulnerabilities such that they can reasonably anticipate that the child will be unavailable to testify. Exploitation includes choosing victims on the basis of their filial dependency, their vulnerability, and their immaturity, as well as actions taken to create or accentuate those vulnerabilities. Second, defendants waive their confrontation rights if they render the child unavailable at trial through an objection to the child’s testimonial competency.