Children’s Testimony and Out-of-Court Statements as Evidence at Trial

The most obvious distinction of child abuse trials is the appearance of children—even very young children—on the witness stand. There are exceptions—babies cannot testify, for example—but in most child abuse trials, there is at least one child witness.

We explain how we interview children, and how we respond to investigators’ interviews of them, here. Keep reading here to learn about the rules of law and the court hearings that determine when children’s statements come into evidence at trial.

Child sex abuse prosecutions commonly depend heavily on the child’s account that she or he was molested. Molestation often leaves no trace, so a lack of medical evidence does not stop an investigation or prosecution.

But sometimes the rules of evidence can stop it. So can the accused’s constitutional right to confront witnesses against him. These are complex and evolving areas of the law. We follow them closely. And we write and lecture to other lawyers on them.

Children’s Out-of-Court Statements

Hearsay evidence—what the witness on the stand heard someone else say outside the courtroom—is generally not allowed in evidence. But most states have several exceptions to the hearsay rule that can permit some of a child’s out-of-court statements to come into evidence. And police are adept at exploiting these exceptions.

For example, one exception covers a child’s statements at a medical visit. Accordingly, police will often have a child complainant medically examined, even when there is little chance any treatment will be recommended. There the child gets to give an account of the alleged crime to a doctor or nurse who will be permitted to repeat it at trial.

But it gets more complex. Under the Constitution’s Confrontation Clause, many of a child’s out-of-court statements—even if they fall within an exception to the hearsay rule—cannot come into evidence unless the child testifies at trial.

And sometimes a child is ruled incompetent to testify, as described below. When that happens, the child is not permitted to testify, and the Confrontation Clause will prohibit using the child’s out-of-court statements as evidence unless a judge decides those statements were not “testimonial.” What makes a statement “testimonial” is also complex.

Children’s Testimony

In most states, there is no longer any minimum age for a witness. Rather, the trial judge is to decide whether the particular child is able to give competent testimony on the particular subject at hand. This often happens at a pretrial hearing where the child testifies on subjects other than the alleged crime. Skillful work by the lawyer for the accused sometimes will show that a child complainant’s proposed testimony does not meet the legal standard for admissibility. This means the child is incompetent to testify.