Child Statements in a Post-Crawford World: What the United States Supreme Court Failed to Consider with Regard to Child Victims and Witnesses

With the issuance of Crawford v. Washington, 514 U.S. 36 (2004), by the United States Supreme Court on March 8, 2004, wide spread confusion and concern swept through the nation’s prosecutorial community. The new rule announced in Crawford created too many questions and provided few answers by the Court. In particular, anxiety arose from the child protection community in regard to one primary issue: Are forensic interviews of child victims and witnesses, and other statements made by children, considered “testimonial statements” according to Crawford, thus requiring the child to take the witness stand? The Court further confused the new rule with the combined opinions in Davis v. Washington and Indiana v. Hammon, 126 S. Ct. 2266 (U.S. 2006). In its opinion of June 2006, the Court developed a new “primary purpose” test where courts will now objectively view the circumstances surrounding the purpose of the law enforcement investigator in speaking with the witness. This new rule negatively impacts the statements of young children given to law enforcement investigators and has closed courtrooms to hearing their words. This article will analyze: (1) whether forensic interviews are testimonial statements under the new rule set forth in Crawford; (2) how courts across the country are inaccurately analyzing Crawford in relation to child forensic interviews; (3) how courts should handle statements made by children to medical professionals and others taking their statements; and (4) how the United States Supreme Court, and lower courts, are sacrificing its young child victims and witnesses by imposing cognitively impossible adult thought processes on very young children