A Supreme Court ruling now allows hearsay testimony in child abuse cases — even if the victim doesn’t testify.
In Ohio v. Clark, the Supreme Court ruled unanimously that the testimony of teachers, who heard a young child say he was abused by Darius Clark, was admissible even though the child was found incompetent to testify because of his young age.
The defense argued that since the child wasn’t available for cross examination, the court violated the defendant’s rights outlined in the confrontation clause of the 14th Amendment.
Kate Schaefer, assistant prosecutor for the Buchanan County Prosecutor’s Office, said she uses hearsay in every single case she prosecutes in addition to a forensic interview of the victim. Unlike Ohio, however, minor victims of sex crimes in Missouri are automatically deemed competent to take the stand. There are various reasons a child might be deemed incompetent to take the stand in other abuse cases.
Ms. Schaefer said even in cases where the child does testify and the accused has the right to confront them, the child may not recount the incident of abuse on the stand. This is why hearsay testimony is important in addition to a forensic interview conducted by authorities.
“So they’re on the stand, they might tell me their name. They might tell me a little bit about themselves,” Ms. Schaefer said. “They might tell me a little bit about the defendant, but they may not tell me about the abuse.”
A lot goes into establishing the credibility of the hearsay testimony, Ms. Schaefer said. As a prosecutor, she must file a separate motion for a hearing in which the judge will analyze the testimony.
In the past 10 years, Ms. Schaefer only knows of one instance that a judge denied the use of hearsay testimony. In that case, it was because what was told to the witness occurred several months after the abuse.
In Ohio v. Clark, the prosecution argued that hearsay evidence is different than testimonial evidence because of the reason it is being gathered. Ms. Schaefer also said in the case of teachers and family members, they aren’t investigating a crime, but acting on the best interest of the child during an emergency situation.
“Teachers aren’t police officers, they aren’t investigators,” she said. “They’re really just usually protecting the child.”
Hearsay testimony, while carrying a lot of weight during a prosecution, isn’t the only testimony that’s given. Ms. Schafer said testimonial evidence, gathered by officers or professionals at the Child Advocacy Center, is also used in child abuse cases.
Prior to recording forensic interviews, many children wouldn’t want to talk about the abuse once a prosecutor was able to talk with them.
“You would have all these people the child was talking to about the abuse,” Ms. Schaefer said. “By the time they got to me as a prosecutor, or even the police, they didn’t want to talk about it anymore.”