“tender years” and Crawford

Karl of CDW helpfully points out that there is a a big Constitutional roadblock to the tender years exception statutes: Crawford v. Washington, 541 U.S. 36 (2004) [pdf]. He directs me (and those interested) to State v. Snowden, [pdf] a Maryland case which is on point and oft-cited.

The statements that “tender years exceptions” typically seek to make admissible are testimonial in nature and made outside the presence of the defendant or defense counsel. This is clearly a Crawford violation. Crawford held generally that testimonial statements may not be admitted in evidence through non-declarant witnesses unless the declarant is unavailable and there is a prior opportunity for cross-examination. For the purposes of CT’s statute, testimonial means:

[3] “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

In fact, Maryland’s tender years statute looked rather similar to that of Connecticut. Connecticut permits testimony by the victim outside the presence of the defendant, if the court finds that there is a compelling need to do so. This is not exactly on point, so I think the tender years statute should be rejected under Crawford.

The Confrontation Blog has mountains of coverage on post-Crawford decisions.

Previous coverage:

• Tender years exception to hearsay
• Tender years II
• Tender years III
• “Anti-Innocence” bills: Tender years IV

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