The U.S. Supreme Court is considering limits on the kinds of evidence that may be admitted in child abuse cases. The high court is considering a Cleveland case that raises the issue whether statements made by a child to teachers and day-care workers can be used in evidence in trials where the child can’t testify. Retired Judge Eugene Hyman discusses the case in this report.
The problem is the Sixth Amendment right of an accused to confront and cross-examine witnesses against him. As Judge Hyman points out, most children will not be able to testify as witnesses because they will be unable to establish that they know right from wrong, knowing the truth from a lie. This raises the problem that the witness in unavailable to testify because of a qualification threshold rather than that the witness is out of the jurisdiction and thus unavailable.
Teachers and school nurses are required by law to report child abuse they become aware of. The issue is whether this makes them agents of law enforcement and the prosecution. Under Crawford v. Washington, testimony given by teachers or school nurses would have to be subject to cross-examination. This is testimony is distinguishable (because of its source) from a spontaneous statement (called an excited utterance) that could be admitted into evidence as an exception to the hearsay rule (assuming, again, that the speaker is unavailable to testify).
The case has drawn considerable attention from several groups who have filed friend of the court briefs, including attorneys general. Judge Hyman suggests that this will be a very close call in the Supreme Court. The lower courts have favored this testimony. The Supreme Court might agree with the lower courts. The Court could also find that just because teachers and others are mandatory child abuse reporters, they are not agents of the police.
Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network. The Legal Broadcast Network is a featured network of the Sequence Media Group.