Published in 21 Psychology, Public Policy & Law 365 (2015).


“Testimonial” statements are inadmissible against criminal defendants under the Confrontation Clause unless the declarant was subject to cross-examination. Statements are testimonial if the primary purpose of the speaker and the interrogator was to create an out-of-court substitute for trial testimony. Ohio v. Clark (2015) considered whether a 3-year-old’s disclosure of abuse to his teacher is testimonial. This brief surveyed case law, statutory law, and psychological and criminological research in arguing that it is not. First, young children do not appreciate that their disclosures may be used at trial, because they do not fully understand the legal system. Furthermore, many children do not want their disclosures to lead to criminal punishment because of their relationship with the abuser. In other contexts, the court has recognized that children often lack the same purpose and understanding as adults. Second, the primary purpose of teachers and other mandated reporters is to protect children rather than to punish abusers. The statutory purpose of mandated reporting laws is to protect children and rehabilitate the family, and, as a practical matter, states achieve this primarily through child-protective services investigations and civil proceedings in juvenile court. The court has recognized the distinction between a protective and punitive purpose in defining other constitutional rights. Third, finding children’s statements nontestimonial will promote accuracy in adjudication. The courts assess the reliability of statements before admitting them into evidence, and defendants are free to challenge their credibility. Flexibility in classifying children’s statements as testimonial will encourage the states to videotape investigative interviews with children.


Child Psychology | Criminal Law | Criminal Procedure | Developmental Psychology | Evidence | Family Law | Juvenile Law | Law | Law and Psychology

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