Confrontation in Children's Cases: The Dimensions of Limited Coverage
34 Pages Posted: 19 Jun 2012
Date Written: June 18, 2012
Abstract
Application of the rules of evidence in cases involving children is often different than for adults. Given this context, it would hardly be surprising if application of Crawford v. Washington and its new testimonial statement approach to confrontation doctrine was more nuanced, complicated, and uncertain in cases involving children. Although the doctrine’s application is undeniably different, it is generally not less certain. The lines in most cases involving children are just as clear as in adult cases - perhaps even clearer for some commonly encountered situations.
The problem is not, however, with children’s cases but with the uncertainty brought into the picture by Michigan v. Bryant and the disintegration generally of the Crawford majority. Where the law of confrontation goes from here, in general and in children’s cases, is hardly settled. There is no longer a commanding center as I describe in Part II of the article.
Leaving the broader view to one side and looking at its operation, one finds a doctrine that applies clearly only to a limited number of situations regardless of whether the declarant is a child or an adult. Crawford has importantly provided protection to defendants from government-generated hearsay of the most dangerous accusatorial type. When statements are made to the police or their clear surrogates in investigative settings, the protection is substantial. Relatively little else receives any protection under the Confrontation Clause. In the large remainder of cases, lower courts make decisions regarding a potentially testimonial statement using a heavily fact-dependent and discretionary form of analysis that is likely to result in admission of apparently important and reliable, but un-confronted, hearsay. We are moving toward a Confrontation Clause where Crawford is uniformly applied to a very modest footprint of cases and where, for a sizeable group of other cases, its application is unpredictable. This same pattern is found in cases involving children.
Keywords: confrontation, children, evidence
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