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Coping with Crawford: Confrontation of Children and Other Challenging Witnesses

53 Pages Posted: 27 Dec 2009  

Eileen A. Scallen

UCLA School of Law

Date Written: 2009

Abstract

In Crawford, Davis, and Hammon, the United States Supreme Court created a serious hurdle in prosecuting certain kinds of crimes, such as domestic violence, elder abuse, and child abuse. Part II of this article briefly describes the Crawford debacle, arguing that its “cure” was worse than the problem it addressed. However, there is no point belaboring the issue because, as the Court appears to be refining its analysis, it shows no sign of taking another dramatic turn in the near future. Consequently, Part III focuses on the most serious problem created under Crawford: the prosecution of crimes involving vulnerable witnesses, particularly crimes of domestic violence, elder abuse, and child abuse. Focusing on the pragmatics of coping with Crawford, this article suggests ways to overcome Crawford’s limitations on admissibility of evidence and ways to exclude evidence that is no longer protected by the Confrontation Clause after Crawford. Investigators and prosecutors spent years drafting policies and procedures to increase the reliability of statements taken from alleged victims of these crimes that were out of court or outside the presence of a criminal defendant. These investigation and interrogation techniques were developed to comply with existing Supreme Court case law and to increase the integrity of the criminal justice system. Today, however, the more structured and careful investigators and prosecutors are in collecting hearsay evidence, the more likely the courts will bar the use of the evidence under the Confrontation Clause, as interpreted in Crawford and its progeny.

Keywords: difficult witnesses, warm breathing body rule, nontestimonial evidence, witness competency, personal knowledge rule, hearsay, United States Law, Evidence Law, Confrontation, Constitutional Law, Evidence, Testimony, Cross-Examination, Children, Child Testimony, Witness, Witnesses

Suggested Citation

Scallen, Eileen A., Coping with Crawford: Confrontation of Children and Other Challenging Witnesses (2009). William Mitchell Law Review, Vol. 35, No. 4, 2009; William Mitchell Legal Studies Research Paper No. 2009-01. Available at SSRN: https://ssrn.com/abstract=1527569

Eileen A. Scallen (Contact Author)

UCLA School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
(310) 206-0592 (Phone)

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