Out-of-Court Statements by Children: Jumping Through the Concentric Hoops of the Hearsay Rule and the Confrontation Clause

26 Pages Posted: 15 Jul 2010 Last revised: 14 Sep 2010

See all articles by Lynn McLain

Lynn McLain

University of Baltimore - School of Law

Date Written: April 3, 2009


This paper was used as a handout at a presentation given April 3, 2009, in connection with a Widener Law Review Symposium.

The Supreme Court has said that the confrontation right applies only to hearsay. Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004) (“The Clause does not bar the use of testimonial statements for purposes other then establishing the truth of the matter asserted.”); Tennessee v. Street, 471 U.S. 409 (1985) (defendant's rights under the confrontation clause were not violated by the introduction of the confession of an accomplice for the nonhearsay purpose of rebutting respondent's testimony that his own confession was coercively derived from the accomplice's statement).

In the context of children's statements, the confrontation clause would not then bar the admission of testimonial statements, for example, of a child hearsay declarant's when offered as to her credibility only to rehabilitate her after she has been impeached pursuant to FRE 806. See United States v. Stoner, 329 F.3d 859, 867 (D.C. Cir. 2003), cert. denied, 541 U.S. 1018 (2004) (discussing admissibility of prior consistent statements as to rehabilitation of a testifying witness). Cf. United States v. Lechoco, 542 F.2d 84, 89 n.6 (D.C. Cir. 1976) (prosecution's attack on credibility of defendant, on whose out-of-court statements defense psychiatrists relied, permits defendant to present supporting evidence, as by character witnesses to his good reputation for truth and veracity).

Nor has the clause yet been held to bar the opinion of a testifying expert, based on inadmissible hearsay, pursuant to FRE 703. But an expert's reliance on testimonial hearsay of nontestifying declarants raises thorny questions.

Keywords: evidence, constitutional law, children, out-of-court statements, hearsay, hearsay exceptions, Maryland, Federal Rules of Evidence, civil procedure, criminal procedure, Crawford v. Washington, confrontation right, Giles v. California, confrontation clause, common law principle

JEL Classification: K19, K29, K39, K49

Suggested Citation

McLain, Lynn, Out-of-Court Statements by Children: Jumping Through the Concentric Hoops of the Hearsay Rule and the Confrontation Clause (April 3, 2009). Available at SSRN: https://ssrn.com/abstract=1638185 or http://dx.doi.org/10.2139/ssrn.1638185

Lynn McLain (Contact Author)

University of Baltimore - School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21218
United States

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