Hearing the Unheard: Crafting a Hearsay Exception for Intellectually Disabled Individuals

30 Pages Posted: 2 Feb 2017

See all articles by Alison Guider

Alison Guider

University of Mississippi, School of Law, Students

Date Written: January 24, 2017


Although it might seem counterintuitive, many adults in society today are frequently labeled as “children” due to their intellectual disability. However, this particular comparison can present some challenging difficulties, particularly when considering statements made by these adults in the context of the Confrontation Clause and hearsay exceptions.

Out of court statements are generally inadmissible in court, but numerous exceptions have made hearsay an expected part of courtroom testimony, whether it be under an established exception or under a more recent and less universal exception, like the tender years hearsay exception. However, very few states have addressed the issue of hearsay statements made by individuals with intellectual disabilities, despite the fact that many of the reasons that justify tender years exceptions apply equally well to statements made by intellectually disabled adults, as they are frequently victims of crimes, particularly sexually related crimes, and can have many difficulties testifying in court.

However, anytime an out of court statement is admitted in court, it may present issues under the Confrontation Clause, unless the declarant was previously subjected to cross examination. Although such statements formerly were admissible if they were reliable, which they were if they were admitted pursuant to an established exception or when they bore guarantees of trustworthiness. However, the Supreme Court later changed course, stating that testimonial statements could only be admitted if the witness is subject to cross examination; however, the Court still providing some leeway to states in dealing with non-testimonial statements.

This article proposes a new hearsay exception for intellectually disabled individuals that states can tailor for their individual needs while still providing protection for some of the most vulnerable in our society. This exception fits within the current framework, as intellectual disabled individuals are generally competent to testify in court, as they can distinguish between truth and a lie and are capable of answering questions before a jury. However, even if they are unavailable in court, their non-testimonial statements are sufficiently reliable to be admitted.

Ultimately, by creating a framework for states to follow, this article strives to balance the competing interests of protecting the intellectually disabled, helping them access the justice system while still maintaining their autonomy, and protecting the accused’s right to confront witnesses against him.

Keywords: Hearsay, Intellectual Disability, Intellectual Disabilities, Confrontation Clause, mental age

Suggested Citation

Guider, Alison, Hearing the Unheard: Crafting a Hearsay Exception for Intellectually Disabled Individuals (January 24, 2017). Available at SSRN: https://ssrn.com/abstract=2904879 or http://dx.doi.org/10.2139/ssrn.2904879

Alison Guider (Contact Author)

University of Mississippi, School of Law, Students ( email )

MS 38677
United States

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