Supreme Court to Address the Child-Victim Hearsay Exception


As criminal defense lawyers we are often called to represent individuals accused of committing sex crimes against children. As parents, and concerned members of society, we all condemn these most despicable crimes against human decency. However, as lawyers we also know that in no other type of criminal accusation are false accusations likely to lead to a wrongful conviction. This is why feel good laws that lessen the burden of proof on the government in child sex crime cases make serious advocates, who work in the criminal justice system, object in protest.


The Supreme Court is now set to hear arguments about one area of law that has had a questionable impact on child sex abuse cases.


The Outcry Exception


In 1985, the Texas Legislature enacted Article 38.072 of the Texas Code of Criminal Procedure creating a child-victim hearsay exception. Known as “outcry” testimony, this statute permits to first adult to whom a child victim conveys information about alleged sexual abuse to testify in court under the child-victim hearsay exception about what the child told the adult.


By May of 1987, some 27 states had enacted child-victim hearsay exception laws.


Currently pending before the Supreme Court is a case, Ohio v. Clark, which will address a significant component of this particular hearsay exception.


Child Testimony


Rooted in English common law was the “settled” principle that infants of any age could be heard by the jury in a criminal case. Famed legal scholar William Blackstone in his 1769 “Commentaries on the Laws of England noted that it was better for the child herself to speak “than to receive [testimony] second hand from those who swear they heard her say so.” While early American common law embraced this notion, time and experience eroded the principle as legislators and judges became less convinced of the jury’s ability to gauge the veracity of child testimony.


Judges began to evolve common law principles by placing limitations on the use of child-victim testimony. By the 1930s and ‘40s, the common law rule followed in virtually every state in the country was that no child could testify in court without a pretrial showing that the child could 1) receive and express impressions of perceived events, and 2) understand the difference between a truth and a lie. These basic limitations became known as “competency requirements” which, essentially, created a rule that if a child was deemed incompetent, any prior accusation made by the child could not be admitted in a court of law.


The early 1900s introduced the Progressive era in America which confronted social issues such as poverty, education, child development, rehabilitation, etc. This gave rise to a budding industry of social workers, psychologists, and psychiatrists who began to grasp the depth of child sexual and physical abuse lying beneath the nation’s social fabric. These professionals increasingly made the legal system aware of just how difficult it was to mount a successful prosecution in these kinds of child abuse cases.


Not known for its lightning speed, the legal system finally grasped the magnitude of the problem in the early 1960s and responded with what’s known as “mandatory reporter” laws. These laws require professionals such as teachers, nurses, therapists, and social workers to report suspected child abuse to law enforcement authorities for investigation and possible prosecution.


These mandatory reporter laws notwithstanding, states continued to preserve their child competency statutes making it difficult to prosecute some child abuse cases because, as the Supreme Court observed in 1987, “there are often no witnesses [to child abuse] except the victims.” The Federal government responded to this problem in the early 1980s by working with the American Bar Association, the National District Attorneys Association, child protection advocacy groups, law professors, and judges to develop awareness about child competency statutes and the need to consider children as competent witnesses.

As a result, state legislators began to revamp rules of evidence which effectively abolished competency requirements for children. These changes followed the lead of the Federal Rules of Evidence which had already eliminated child competency requirements.


These reform efforts introduced an era of “videotaped testimony” of children being questioned by therapists in a “therapeutic atmosphere”—a process that allowed children to be fitted with earpieces so they could be questioned in a non-threatening manner by prosecutors and defense attorneys. This practice contributed to an increasing attack on the Confrontation Clause requirement of the U.S. Constitution. The Supreme Court would ultimately rule in 1990, in Maryland v. Craig, that while face-to-face confrontation is a core value of the Confrontation Clause, it is not an absolute right.


The social and legal professionals endorsing these dramatic changes in the historical manner in which witness testimony is given in a court of law found support for their “reform efforts” from the U.S. Supreme Court in 1980 when it decided Ohio v. Roberts which sharply reduced protections of the Confrontation Clause by allowing the prosecution to introduce “out-of-court” statements against a defendant as long as the trial judge determined the statements bore “particularized guarantees of trustworthiness.”


Unfortunately, Roberts became the genesis of bad law throughout the country, especially in Texas.


Prosecutors, and their legislative brethren, seized upon the decision as the catalyst needed to forge a new corridor through the Confrontation Clause, making child abuse cases easier to prove, by enacting hearsay exceptions; most notably, the child-victim hearsay exception. That led to the so-called “outcry” exception in Texas, which allows “outcry” statements of child abuse, made to the first adult over 18, admissible as an exception to the hearsay rule.


State lawmakers were more comfortable with the hearsay exception approach than the abolition of competency requirements approach taken by seventeen other states in the 1970s. Of course, this inevitably gave prosecutors the ability to introduce otherwise incompetent child statements through the first adult to whom the child victim made his/her outcry—a process that attaches more credibility to child sexual abuse allegations than warranted.




In 2004, the Supreme Court in Crawford v. Washington reigned in the abuses borne under Roberts by creating a new standard dealing with the admissibility of hearsay statements; namely, defining the difference between “testimonial” and “non-testimonial” hearsay statements. The Court held that the use of a testimonial hearsay statement violates the Confrontation Clause unless the declarant is unavailable to testify and the defendant had a prior opportunity to cross-examine the declarant.


Crawford had a significant impact on outcry statements permitted under Rule 38.082. For example, a statement made to a Child Protective Services worker by the mother of a child sexual abuse victim about the defendant’s behavior is testimonial and inadmissible pursuant to Crawford.


In 2012, the Texas Court of Criminal Appeals in Sanchez v. State offered this clarification on the Crawford issue: “ … in order to introduce testimonial hearsay over a Sixth Amendment objection, the State must show that the declarant who made the out-of-court statement is unavailable, and that the defendant had a prior opportunity to cross-examine that declarant. ‘That prior opportunity for cross-examination must serve the same function as is normally accorded in adversarial cross-examination in the courtroom during trial: … to test with witness’ perceptions and memory … [and] to impeach, i.e., discredit, the witness …’”


The Confrontation Clause issues currently before the Court in Ohio v. Clark concern statements made to a daycare teacher in Ohio, who is a “mandatory reporter” required under state law to report to the authorities suspected child abuse. The two questions the Supreme Court must answer are these:


1. Does a daycare teacher’s obligation to report suspected make that teacher an “agent of law enforcement’ for purposes of the Confrontation Clause?

2. Do a child’s out-of-court statements to daycare teachers in response to teacher’s concerns about potential child-abuse qualify as “testimonial” statements subject to the Confrontation Clause?


In the Clark case, the trial court found the child victim incompetent to testify and that his statements were non-testimonial. In a split decision, the Ohio Supreme Court disagreed, finding that the statements were testimonial because they were made to law enforcement officials (the daycare teachers) in the course of a criminal investigation. This is no small matter: the State argues that the daycare teachers were not “police agents but private parties”, thus allowing them to testify about statements made to them by an incompetent child victim.


It is too early to tell how the Court will rule, but any ruling will most likely affect rules of evidence and procedure in most states dealing with testimonial and non-testimonial statements of children made to adult treatment providers. As for Texas, it will most likely impact what are now considered non-testimonial statements made to therapists and other treatment providers, because state law imposes a affirmative duty to report child abuse.


Author’s Note: Parts of the historical background concerning child-victim hearsay testimony was gleaned from the excellent brief submitted to the Supreme Court by a group of Ohio attorneys representing Darius Clark.