FeministLawProf Myrna Raeder (Southwestern University School of Law) has posted to ssrn her article, “Comments on Child Abuse Litigation in a ‘Testimonial’ World: The Intersection of Competency, Hearsay and Confrontation.” Here is the abstract:
This article explores the impact the testimonial approach to Confrontation Clause jurisprudence has on child abuse cases. While neither Crawford nor Davis dealt with child witnesses, they contain several references that are significant in analyzing hearsay by children who do not testify. I discuss the possible interpretations of White v. Illinois, Idaho v. Wright, and King v. Brasier in a testimonial regime before turning to issues regarding the competency of child witnesses and their ability to provide an adequate opportunity for cross-examination. The article highlights the increased importance of Maryland v. Craig in presenting testimony by child witness, and argues that Craig’s balancing approach to confrontation survives Crawford. Forfeiture is analyzed in the child abuse context. Finally, the article evaluates the admissibility of statements that were originally made in forensic interviews, in medical settings, and to private individuals who have no mandatory reporting obligations or law enforcement ties, when the child does not testify at trial.
The full article is available here.