Confrontation Clause and Child Abuse Interviews

In recent years, the US Supreme Court has issued a series of opinions that interpret the Sixth Amendment’s “confrontation clause” in a way that prevents prosecutors from offering many hearsay statements into evidence. If a defendant has no opportunity to cross examine the person who made the statement and the statement is “testimonial” (generally meaning that it is elicited by the police in the course of investigating a crime), then the statement is not admissible as evidence at trial.

In the recent case of US v. DeLeon, decided by the federal Sixth Circuit Court of Appeals, statements made by an 8 year old child to a social worker were held to be NOT testimonial and therefore admissible in evidence. This is potentially important because many judges have struggled to find a way of allowing hearsay when the circumstances warrant.

What happened is that a father was charged with murdering his stepson. Sometime prior to his death, a social worker, at the behest of a teacher, talked to the child about bruises that the teacher had noticed on his body. The social worker testified at the murder trial to what the murdered boy had told her. The Court said this this was proper, since the social worker was trying to formulate a treatment plan rather than investigate a crime. Also, there was no police investigation of the defendant’s behavior at the time the social worker spoke to the boy.

Most of the time prosecutors have been losing these confrontation clause arguments. This time, the prosecutor won.