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Playing By All the Rules: How to Define and Provide a "Prior Opportunity for Cross-Examination" In Child Sexual Abuse Cases After Crawford v. Washington

NCJ Number
Journal of Criminal Law and Criminology Volume: 97 Issue: 2 Dated: Winter 2007 Pages: 631-664
Prudence Beildler Carr
Date Published
34 pages
This article explores how to provide for a “prior opportunity for cross-examination,” as required by the Supreme Court decision in Crawford v. Washington, in child sexual abuse cases.
The main argument is that requirements of the new constitutional rule of confrontation decided in Crawford v. Washington produce a challenge in child sexual abuse cases but that a simple solution may lie in the use of videotaped testimony. In these cases, children are often unavailable to testify in court and their out-of-court allegations of abuse are routinely excluded due to their “testimonial nature” and the defendant’s right to cross-examine the witness. The author, however, argues that the solution to this challenge lies in the third prong of the Supreme Court’s decision in Crawford v. Washington--the defendant’s “prior opportunity for cross-examination.” It is suggested that State legislatures should implement a rule of criminal procedure allowing both prosecutors and defendants in child sexual abuse cases an opportunity to record a child’s pretrial testimony and cross-examination on videotape. By allowing videotaped testimony and cross-examination, the criminal defendants’ confrontation rights are preserved while the burdensome impact of the Crawford ruling on child sexual abuse victims is minimized. In making this argument, the author reviews the problems typically associated with victim testimony in child sexual abuse cases, such as the need to protect the child from further trauma and the need to admit the child’s statements into evidence. The admissibility of out-of-court testimony from unavailable witnesses prior to the Crawford ruling is reviewed as is the sixth amendment’s guarantee of a prior opportunity for cross-examination. Videotaped testimony and cross-examination can provide a balance to the rights of the defendant as well as to the sensitivities of the child victim. Footnotes