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Child Forensic Interviews After Crawford v Washington: Testimonial or Not?

NCJ Number
Allie Phillips
Date Published
12 pages
This paper discusses the implications for forensic interviews with children of the U.S. Supreme Court's decision in Crawford v. Washington (2004), which held that "where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation."
This means that if an out-of-court statement by a witness is deemed "testimonial," the sixth amendment's confrontation clause requires that the witness testify and be subject to confrontation or cross-examination before the out-of-court statements can be admitted into evidence. This paper examines this issue through a review of court cases that have involved the handling of forensic interviews of children, along with the findings of research studies that bear upon children's conceptions of the legal system and their knowledge of legal terminology. Based on these findings, the one recommendation offered by the author is that during a forensic interview the child should not be asked what he/she would like to happen with the investigation and/or to the suspect. The U.S. Supreme Court chose not to provide a clear definition of "testimonial statement," except to say that it includes, at a minimum, "prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and police interrogations." Other courts have subsequently held that testimonial statements also include "extrajudicial statements contained in formalized testimonial materials." "Crawford" identifies two factors that should be considered when determining whether an out-of-court hearsay statement of a nontestifying witness is "testimonial." First, whether a government official is involved in the production of the testimony/statement; and second, whether the declarant reasonably expects that the statement, when made, is to be used in the prosecution of the defendant. 37 notes