Hearsay Testimony regarding Earlier Statements Made by a Child Victim Who Is Now Unwilling to Testify Are Admissible under the Federal Constitution; Ruling Not Disturbed

By Hafemeister, Thomas L. | Developments in Mental Health Law, January 2008 | Go to article overview

Hearsay Testimony regarding Earlier Statements Made by a Child Victim Who Is Now Unwilling to Testify Are Admissible under the Federal Constitution; Ruling Not Disturbed


Hafemeister, Thomas L., Developments in Mental Health Law


The adversarial process, which relies on opposing parties each doing their utmost to persuade a neutral decision maker to rule in their favor, is only as good as the information provided to the decision maker. The American legal system has widely embraced and employed the adversarial process. To ensure the requisite accuracy and reliability of the information provided to judges and juries, courts employ rules of evidence that govern which information is admitted into evidence and which is not.

A particularly controversial and complex aspect of these rules of evidence involves the so-called hearsay rule. Lay witnesses--as opposed to expert witnesses, to which somewhat different rules apply--are generally limited to recounting events they have personally experienced via one of their five senses. When witnesses recount something they heard someone else say, for example, there is concern that these witnesses may not be accurately repeating what they heard. Further, it is preferable to hear the initial source of this information so that this person can be required to take an oath that the testimony he or she is providing is truthful and to permit this person's perception of events to be questioned and examined in the courtroom. This, in turn, will permit the judge or jury to observe the demeanor of the person and determine for themselves the validity and reliability of the account provided.

In some cases, however, the original source of a statement may not be available. For example, they may have moved away, be unavailable or unwilling to appear as a witness, or be deceased. As a result, there are a number of exceptions to the hearsay rule that have been carved out to allow a witness to testify regarding the statements made by another individual. Some of the more widely recognized exceptions are (1) a person's spontaneous declaration, (2) a statement made in the course of receiving medical treatment, and (3) voluntary admissions by a person that are contrary to a that person's interests. These exceptions are often based on the assumption that something about the context in which the original statement was made makes the statement sufficiently trustworthy and reliable to overcome the general rule that hearsay is inadmissible.

In a criminal case before the Sixth Circuit of the United States Court of Appeals, the defendant was charged with sexually assaulting his five-year-old nephew. The boy told a number of individuals what had happened. At trial, although he had been found competent to testify, the boy refused to answer questions pertaining to his uncle and the sexual assault. As a substitute, the testimony of various individuals who had heard the boy's account was offered.

Under the applicable Ohio rules of evidence, the hearsay statements of an alleged victim of a sexual crime who is under the age of twelve are admissible if: (1) there are sufficient guarantees of the trustworthiness of the hearsay statement, (2) the victim's testimony is not otherwise reasonably obtainable, (3) there is independent proof of the sexual act, and (4) notice of the source, content, and circumstances of the hearsay statement is given to the opposing party at least ten days before the hearing. The hearsay statement is permitted after a person trusted by the child, in the presence of the court, urges the child to testify and the child still refuses to testify or claims a lack of memory regarding the relevant subject matter. …

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