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CHILDREN ARE SPEAKING, IT'S TIME WE LISTEN: THE CASE FOR A CHILD HEARSAY EXCEPTION IN MILITARY COURTS.

I.     INTRODUCTION

II.    WHY IT IS TIME FOR THE MILITARY TO ADOPT A CHILD HEARSAY
       STATUTE

       A. Limit Psychological Effect in Attaining the Truth

       B. Provide Predictability for All Parties to the Trial

       C. The Volume of Child Victims Warrants a Hearsay Exception

       D. Public Policy and Precedent

III.   BACKGROUND ON HEARSAY AND THE CONFRONTATION CLAUSE

       A. Hearsay and the Confrontation Clause

       B. Analysis of the Statements Made by the Child in the
          Introduction

          1. The Spontaneous Statement Made to the Mother Is
             Nontestimonial

          2. The Statements Made During the Forensic Interview
             Are Testimonial

IV.    PROPOSED MILITARY RULE OF EVIDENCE

       A. The Definition of "Child" Should Be a Person Under Age
          Sixteen

       B. The Rule Should Require a Reliability Test Only If the
          Witness Is Unavailable

       C. The Statement Should Be Admissible without Regard to
          Availability of the Child

       D. The Corroboration Requirement Is Satisfied within the
          Reliability Test

       E. The Rule Is Constitutional

V. CONCLUSION


Child abuse is one of the most difficult crimes to detect and prosecute, in large part because there often are no witnesses except the victim. (1)

I. INTRODUCTION

An otherwise happy-go-lucky six-year-old boy recently becomes introverted, quiet, and withdrawn. His mother is confused and concerned, but his father attributes it to "just a phase." However, when the mother begins to question her son about why he is acting differently, he discloses that "daddy touched me." After the initial shock and tears subside, she contacts the police. Because the parents are active duty military members, the local military authorities take the lead role in investigating the allegations. The father is taken by his First Sergeant (2) to the investigative division of their military branch. The father does not make a statement and invokes his Article 31, Uniform Code of Military Justice (UCMJ), (3) rights and remains silent. Afterward, his commander issues him a no-contact order (4) and provides him housing on base for the time being. After a couple of days, the investigators schedule what is commonly referred to as a child forensic interview. (5) During the interview, the child recounts to the interviewer the details about what his father did to him. The facts support UCMJ charges and ultimately result in a court-martial.

When it comes to proving the case, however, trial counsel will face two important questions. First, can the government introduce the statements the child initially made to his mother? Second, can trial counsel introduce the statements made during the forensic interview? A subset of both of these questions is whether the child will have to testify in order for the court to admit the statements.

While this scenario is fictitious, strikingly similar scenarios happen regularly in child sexual abuse cases. (6) This article will provide a framework for prosecutors and defense counsel to use in evaluating situations where child witness statements serve as the strongest (and sometimes only) evidence in a case. To assist in this endeavor, this article will suggest an additional rule to the Military Rules of Evidence (MRE) that will provide a mechanism for the government, provided certain prerequisites are met, to more easily admit statements made out of court by a child--specifically, statements made by a child that are determined to be nontestimonial--regardless of whether the child is available at trial. (7)

The second part of this article will explore the various reasons why a proposed hearsay exception for child statements is needed in military courts. Ensuring fact-finders are provided with truthful information, while minimizing the traumatic effect the trial process frequently has on children, is paramount in this endeavor. Additionally, cases involving child victims are on the rise in the military services and the addition of an MRE to address statements made by children in these cases may assist in combatting this disturbing trend. Moreover, the current practice of admitting child statements is unpredictable for all parties to a trial. A proposed rule will provide the military with some measure of predictability when confronted with this form of evidence.

The third part of this article will discuss the seminal cases addressing the Confrontation Clause (8) and hearsay case law, focusing on how these cases impact the practitioner's decision-making and tactical considerations at trial. The fourth part of this article will propose a codified child hearsay exception for incorporation into the MRE. In crafting this rule, this article will focus on the following issues: (1) what age the child should be before the exception applies; (2) whether the statement offered must be corroborated; (3) whether the child should be available as a witness before admission of the statement; and (4) whether a reliability test should be built into the text of the rule.

Finally, part five of this article will conclude by explaining how the proposed rule will assist all parties in the vignette outlined in the introduction of this article. Ultimately, military justice practitioners on both sides would benefit from a codified child hearsay exception.

II. WHY IT IS TIME FOR THE MILITARY TO ADOPT A CHILD HEARSAY STATUTE

The time is ripe for the military to have a codified child hearsay exception. Such a rule would limit the short term psychological trauma children suffer during the trial process. Additionally, many times by not placing the child on the witness stand and instead offering a statement made out of court by a child, panel members will receive more truthful testimony. Consequently, panel members can receive more of the facts of the case.

A. Limit Psychological Effect in Attaining the Truth

Embodied in the Confrontation Clause (9) is the belief that it is much more difficult for a witness to lie in open court in front of the defendant and also more likely that the jury can detect a lie from the demeanor of the witness. (10) Additionally, one of the drafters' overarching reasons for the Confrontation Clause (11) is to make the fact-finding process more reliable. (12) However, when applied to children, this belief has its limits. (13) Facing an accused, especially one who harmed a child victim, or to whom loyalty is felt, can be a traumatic experience. (14) Studies have shown the facets of the legal process that are most distressing to a child all involve the act of testifying." These aspects that are the most distressing also correlate directly with "poorer eyewitness memory performance." (16) Equally important, placing a child under heightened emotional stimulation can cause the child to refuse to testify or be unable to verbalize answers. (17) These effects of forcing children to testify risk panel members hearing testimony riddled with unintentional inaccuracies. (18) Although the Confrontation Clause (19) attempts to protect the truth, when children are involved as the witnesses, many times the exact opposite occurs. This is an outcome the military cannot accept.

The American Psychological Association discussed child distress from court proceedings in their Amicus brief to the Supreme Court in 1990.
   The period during which child sexual assault victims are
   involved in legal proceedings represents a time of special
   stress for them. Stressors in childhood can slow the course
   of normal cognitive and emotional development such that
   stressed children do not advance at the same pace as their
   unstressed peers. Temporary developmental regressions may
   even appear. Although adults too may suffer distress from
   legal involvement, their development is more complete. Thus,
   the negative impact of legal involvement may be more significant
   for child than adult victims. (20)


The Supreme Court in Maryland v. Craig has previously recognized the immense psychological harm that children can suffer in a trial. (21) "We have of course recognized that a State's interest in 'the protection of minor victims of sex crimes from further trauma and embarrassment' is a 'compelling' one." (22) The Court went on to reason that "we have sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights." (23) The desire to protect children and the recognition of the harm caused to children is not novel to our justice system.

It is important to make the distinction between long-term and short-term psychological trauma caused by children participating in the trial process. While the distress and trauma suffered by children is real, research indicates the long-term psychological effects on children are not as detrimental as one might believe. (24) In one study, although a majority of children were apprehensive about confronting an accused in a courtroom proceeding, (25) most were able to testify, especially if they were prepared and supported. (26) In fact, "the great majority of children were very resilient and stood up well to the experience." (27) If prepared correctly, and contrary to popular belief, the long-term effect on children is minimal. Nevertheless, the immediate harm children suffer while engaged in the trial process is noteworthy. What exacerbates this harm is children are typically not afforded the luxury of deciding when to participate in the litigation process.

In the military criminal justice system, victim preferences whether to prosecute an offender receive great deference. (28) However, children are not typically in a position to decide on their own whether they want the case to go forward, and, as the Supreme Court has said, "children cannot be viewed as miniature adults." (29) Many times, a parent or guardian is making this choice for the child. While testifying in open court is a nerve-racking experience for anyone involved, adult victims may choose whether to subject themselves to the rigors and distress of trial preparation and testimony. Children, on the other hand, are usually at the whim of their parent or guardian.

While parents and guardians most often attempt to do what is in the child's best interest, there are certainly some instances when they do not. The proposed MRE addresses this situation by minimizing the trauma inflicted upon a child while also providing a vehicle for admitting truthful information. Even though the proposed MRE does not and cannot take the choice out of the hands of the caretaker, it at least provides a mechanism wherein caretakers have options other than forcing the child the testify. While the trauma a child suffers may not carry long-lasting effects, their limited ability to make their own decisions about participating in litigation further supports the imposition of a means to minimize the traumatic effect. It is one thing for adults to subject themselves to litigation because they choose to; however, it is quite another when it comes to children. Furthermore, the proposed MRE provides predictability to all parties and participants in the trial.

B. Provide Predictability for All Parties to the Trial

Depending on the facts surrounding a child's outcry, there are options currently available to a proponent for admission of a child's statement; however, these options are not always workable or ideal. While the excited utterance exception (30) and the medical diagnosis exception (31) remain possible options, neither of these exceptions adequately addresses the questions posed in the introduction--whether the statements to the mother or those to the forensic examiner can be used in court. Because of the time between the occurrence of the event and the statements made to the mother, (32) the excited utterance exception would most likely not apply. (33) Moreover, because the statements during the forensic interview were not made for the purpose of a medical treatment or diagnosis and were for the purpose of litigation, the medical diagnosis hearsay exception most likely would not apply. (34) Without a specific codified exception, military courts typically rely on MRE 807, the residual hearsay exception. (35) While this has occasionally proved workable, (36) its applicability is unpredictable for both the government and the defense and it does not represent an ideal solution to the scenario posed in this article.

To begin with, the congressional intent and the general policy behind MRE 807 direct courts to rarely implement its use. (37) To have a statement admitted under the residual hearsay exception, the proponent must show that the statement is material, necessary, and reliable. (38) This article will address these three criteria for two reasons. First, it will show just how detailed, convoluted, and discretionary the use of the residual hearsay exception can be at times. Second, it will provide a roadmap for the current practitioner to deal with residual hearsay issues.

The threshold requirement described as "materiality" is encompassed within MRE 401. (39) The requirement of necessity, or most probative, is similar yet distinct from the evidentiary rule of availability. (40) Unlike MRE 804 exceptions, statements falling under the residual hearsay exception do not require unavailability. (41) Indeed, the predecessor provision of MRE 807 explicitly stated, "[t]he following are not excluded by the hearsay rule, even though the declarant is available as a witness." (42) In 1999, MRE 803(24) was removed and re-promulgated as MRE 807. (43) The change had no effect on the meaning of the residual hearsay rule. (44)

The third requirement of "reliability" permits the military judge to consider several factors in weighing and evaluating the circumstantial guarantees of trustworthiness. (45) In weighing the factors, trial judges are given "considerable discretion." (46) Factors the courts have considered include: spontaneity, consistent repetition, mental state of the declarant, motive to fabricate, use of terminology beyond the declarant's years, and particular circumstances corroborating the statements. (47) Relatively spontaneous statements by young children, who lack a motive, and express ideas or use terminology beyond their years, are generally reliable as they exhibit "circumstantial guarantees of trustworthiness." (48) This criterion is generally the one defense counsel is most likely to attack. (49) Although the reliability of residual hearsay statements necessarily must be evaluated on a case-by-case basis, statements from abused children to adults regarding the abuse appear to fall under the unstated purpose of the residual hearsay exception. (50) Even if MRE 807 is traditionally used for these statements, the rule itself offers no predictability when it comes to preparing for trial and determining the admissibility of testimony.

Furthermore, military judges are granted considerable deference when using the residual hearsay exception. This deference in weighing the factors to be considered with those elements, imbued within a rule that is to be rarely used, provides practitioners with little to no predictability when preparing for a trial. As the Supreme Court has stated, "[w]hether a statement is deemed reliable depends heavily on which factors the judge considers and how much weight he accords each of them. Some courts wind up attaching the same significance to opposite facts." (51) This is a prime example of a lack of predictability. A specific, codified exception for statements made by children without all of the varying elements and factors can alleviate much of this unpredictability, which can prove helpful to both the government and the defense.

C. The Volume of Child Victims Warrants a Hearsay Exception

According to the U.S. Department of Health and Human Services Child Maltreatment report from 2015 (52) the national estimate (53) of victims has increased 3.8 percent from 2011 to 2015. (54) While this is not a substantial increase, a study published in 2014 indicates that by age eighteen, at least one in eight children is the victim of some form of abuse. (55) A nominal rate increase does not mean the military should not continue to use every avenue available to prosecute these offenses, including taking advantage of a codified exception.

Focusing specifically on the military, the Associated Press has sharply criticized the lack of transparency and plea bargains when it comes to courts-martial. (56) Specifically, the Associated Press's 2015 investigation revealed that of the 1,233 inmates confined by the military services, 61 percent were convicted of a sexual offense, with more than half of those (375 offenses) involving child victims. (57) From the beginning of 2015 until November of that year, children were victims in 133 out of 301 sex crimes. (58) Perhaps most shocking, "the single largest category of inmates in the military prisons [is] child sex offenders." (59)

It is clear the military deals with child sex offenses and child victims on a frequent basis. From 2011 through 2017, the percentage of Army cases tried to completion that involved child victims rose from 9.7 percent in 2011 to over 23.9 percent in 2017. (60) The Air Force percentages have remained somewhat stable between 2011 and 2017, with a high of 10 percent in 2015 to a low of 5.7 percent in 2012. (61) Finally, the Coast Guard has seen the most erratic numbers in prosecuting cases involving child victims. In 2013, only 4 percent of cases tried in the Coast Guard involved child victims. (62) This number jumped to 14 percent in 2015 and 2016. (63) Thus, at least two of the military services have experienced a noticeable recent rise in child victim cases. (64)

Providing the military a means to continue to combat and prosecute these types of offenses makes sense for two key reasons. First, it gives much-needed support to the child victims and those who prosecute these crimes. Secondly, it ensures that the military justice system is perceived as fair and just. (65) The military services must get out in front of any belief that they are not doing everything within their power to address child sex offenses. Without the trust of Congress and society that we are addressing these concerns, the military services run the risk that these same entities lose faith in the services' ability to carry out the mission of military justice. A codified child hearsay exception can go a long way in addressing that perception.

D. Public Policy and Precedent

Enacting a child hearsay rule is not a novel idea. Thirty-eight states have some form of a codified child hearsay statute that allows for admission of child statements in trial. While certainly not dispositive, the volume of jurisdictions that currently have an exception is persuasive. One common form of hearsay exception in child cases involves the use of closed circuit television. In Maryland v. Craig, the Court tackled the question of whether the use of closed circuit television (CCTV) for child testimony violated a defendant's confrontation rights. (66) As part of its analysis, the Court looked to state jurisdictions that allowed children to testily via CCTV. (67) The Supreme Court noted "[t]hat a significant majority of States have enacted statutes to protect child witnesses from the trauma of giving testimony in child abuse cases attests to the widespread belief in the importance of such a public policy." (68) The fact that thirty-seven states had enacted some form of a statute that allowed for children to testify via CCTV had a definite impact on the Court's decision. (69) The military services should take note of this reasoning, and create a codified hearsay exception for child statements in military courts. By providing a means to help ensure reliable, truthful evidence is presented at trial, the President can take meaningful steps to minimize the traumatic effect the court-martial process has on children.

Furthermore, enacting a specific rule or set of rules to address a concern is not a novel idea. Congress has previously created specific rules to assist in the prosecution of specific types of offenses. For example, the Federal Rules of Evidence (FRE) address these concerns by allowing sexual propensity evidence of an accused. (70) In the federal jurisdiction, Congress enacted this rule over the objection of many practitioners. (71) "The overwhelming majority of judges, lawyers, law professors, and legal organizations who responded [to posed questions] opposed new Evidence Rules 413,414, and 415." (72) Even though the majority of those polled opposed these additions, Congress enacted them anyway. Compounding these objections, these new rules were not even supported by empirical evidence. (73) In contrast, there is substantial empirical evidence to support the trauma suffered by children at trial (74) as well as the concern regarding the veracity of children's testimony. (75) Although military courts do not use the FRE, the MRE are based on the FRE. (76) Thus, even though this same discussion is not found in MRE 414, (77) the same concerns can be inferred because the MRE are modeled and drafted off of the FREs. Any concerns in one forum will carry over to the other. In spite of these objections to their enactment, MRE 412-414 have proven workable and, most importantly, constitutional. (78)

III. BACKGROUND ON HEARSAY AND THE CONFRONTATION CLAUSE

Turning from why this exception is needed, this article will now focus on the best way to implement an exception. The next section of this article will discuss hearsay and the relationship with the Confrontation Clause. (79)

A. Hearsay and the Confrontation Clause

At the core of criminal trials is the Confrontation Clause of the Sixth Amendment. (80) It applies to both federal and state prosecutions (81) and stands for the proposition that an accused has a right to confront the witnesses offered against him. (82) This clause is most frequently cited and litigated in trial with regard to hearsay statements. MRE 801 defines hearsay as an out of court statement offered in court to prove the truth of the matter asserted in the statement. (83) Section (d) provides a list of statements that although they may fit the definition of hearsay stated above, are defined in the rule as "not hearsay." (84) While hearsay statements are not admissible in trial, MRE 803 and 804 offer numerous exceptions. (85) Prior to the Supreme Court's ruling in Crawford v. Washington, (86) statements were admissible and deemed to not run afoul of the Confrontation Clause (87) as long as they fell within a "firmly rooted hearsay exception" and had "particularized guarantees of trustworthiness." (88) The Court required no separate analysis under the Constitution, but only a determination whether a statement fell within a recognized exception.

Post-Crawford, for a statement to be admissible at trial, it must first satisfy constitutional requirements of the Sixth Amendment. (89) Then, and only then, do the hearsay rules become applicable to the statement. (90) Hearsay statements offered at trial will fall within one of two categories: testimonial and nontestimonial. (91) If a statement is determined to be testimonial, it must first satisfy the Confrontation Clause requirements under the Sixth Amendment. (92) If the Confrontation Clause is satisfied, or if the statement itself is determined to be nontestimonial, then admission of the statement is predicated on satisfying the hearsay statutes applicable to that particular jurisdiction. (93) Justice Scalia first defined testimonial statements in the Crawford opinion. (94) They are, at a minimum, "prior testimony at a preliminary hearing, before a grand jury, or at a former trial, [or] police interrogations." (95) The Court provided no further guidance or definition of testimonial statements. (96) However, subsequent case law has addressed this question. (97)

Perhaps most importantly for the purposes of this article, in 2015 the Court decided Ohio v. Clark. (98) In Clark, the Court analyzed a set of facts closely resembling the vignette that began this article. It was confronted with whether accusatory statements made by a three-year-old to his teacher were testimonial and, thus, whether they implicated the Confrontation Clause. (99) Here, a teacher at school noticed a bloodshot eye and red marks on the child's face and body. (100) When asked "who did this" and "what happened to you," the child implicated the defendant. (101) At the end of the school day, the defendant arrived, denied responsibility for the injuries, and quickly left with the child. (102) After the teacher reported what she saw, a social worker went to the home and took the child to the hospital for evaluation. (103) Based on the statements of the child made to the teacher and the physical examination, the defendant was indicted. (104) At trial, the court declared the child incompetent to testify under Ohio law, (105) and allowed the statements to be admitted under Ohio's child hearsay statute. (106) Under these facts, the Supreme Court finally addressed "whether statements to persons other than law enforcement officers are subject to the Confrontation Clause." (107) The Court refused to adopt a categorical rule and stated that although these types of "statements are much less likely to be testimonial than statements to law enforcement officers, there are conceivably situations that could implicate the Confrontation Clause." (108) The Court's analysis is simple enough. The Court drew comparisons between the situation in Michigan v. Bryant (109) with the facts in Clark. (110) The fact that Ohio classified the teacher as a mandatory reporter carried little weight with the Court. (111) Regardless of whether the teacher is a mandatory reporter, the Court surmised the teacher did what any teacher would do: address an ongoing emergency to determine if the child should be released to the caregiver that afternoon. (112) Arguably, one of the most important lines from the decision addresses, without regard to their content, statements made by young children. The Court instructed that "[statements by very young children, will rarely, if ever, implicate the Confrontation Clause." (113) This determination signals to courts that they should view statements made by young children through the eyes of the child and not a reasonable person merely in the child's situation.

B. Analysis of the Statements Made by the Child in the Introduction

Before offering how to draft a proposed MRE for child hearsay statements, it is important to first determine whether the statements made by the child raised in the introduction to this paper are testimonial or nontestimonial. Understanding this will further drive the analysis of the proposed MRE and how it would operate.

1. The Spontaneous Statement Made to the Mother Is Nontestimonial

With the recent Confrontation Clause decisions by the Supreme Court as background, several facts from this article's scenario suggest that the child's statement is nontestimonial. First, this statement occurred between two persons, neither of whom were policemen. (114) Second, regardless of whether the motive of the declarant or the motive of the questioner is at issue, neither seemingly intended for their conversation to serve as a substitute for testimony at a court. (115) Finally, and perhaps most importantly, as the Clark opinion stated, statements made by young children will rarely, if ever, implicate the Confrontation Clause. (116) Therefore, whether the child testifies about this statement or not, the statements made by the child should not run afoul of the Confrontation Clause (117) and should be nontestimonial statements.

2. The Statements Made During the Forensic Interview Are Testimonial

The child's statement to the forensic examiner represents a more difficult Confrontation Clause issue. The forensic examiner works at the direction of the prosecution and the investigators. The formality of the interview and scheduling by investigators supports the notion that the primary purpose of this encounter was to preserve evidence for use at a later prosecution and not to address an ongoing emergency. (118) Numerous state and federal jurisdictions have reached the same conclusion, holding that interviews of children conducted by some sort of child protective agency in conjunction with law enforcement are testimonial. (119)

Following this logic, it is clear the statements made by the young child to the forensic interviewer in the introduction are testimonial. The interview is conducted as part of the investigation and for the purpose of preserving evidence at trial. Additionally, it is hard to imagine a situation where an objective person making such statements as part of the interview would not know their statements are going to be used for prosecution purposes. The Supreme Court's latest holding in Clark modifies the analysis by taking into account the age of the child, whereas before they used a reasonable person standard. Regardless, the child's statements made to the forensic examiner are still testimonial.

In Clark, it is clear the Court had determined the statements to be nontestimonial before it considered the age of the child witness. When mentioning the age of the child, the Court stated, "L.P.'s age fortifies our conclusion that the statements in question were not testimonial." (120) The plain reading of this sentence shows the Court had already determined the statements were nontestimonial before considering the age of the child. They simply used the age of the child to further support their ultimate holding that the statements were not testimonial. Even Justice Scalia notes in his dissent in Clark that the child could not form the requisite intent for his statements to be testimonial and the teachers did not "have the primary purpose of establishing facts for later prosecution." (121) This indicates that Justice Scalia also considers the intent of the declarant and the intent and purpose of the questioner.

In contrast to Clark, the vignette from the introduction of this article provides the classic case of a mixed motive that has yet to be addressed by the Supreme Court. The age of the child in the vignette indicates the motive is nontestimonial. The purpose of the interview is clearly not to address any ongoing emergency, but rather to obtain and preserve evidence for trial. This is the exact problem Justice Scalia lamented in his dissent in Bryant. (122) Specifically, what is the answer when one party is gathering information for a testimonial reason and the other is providing information for a clearly nontestimonial purpose? The law has stated one of the most important facts to consider when looking to whether a statement is testimonial is the existence of an ongoing emergency. (123) Were that the only test, the statements made to the examiner are clearly testimonial. However, because the Court directs one to look at the motives of both the listener and declarant, practitioners are left with some uncertainty. But, when other courts' analyses are viewed along with Clark, insight is provided as to how this issue will be resolved.

Prior to Clark, courts did not take into account the age of the child and simply looked at the situation through the eyes of a reasonable person. (124) However, these decisions were before the Supreme Court decided Bryant. Now that courts can consider the entire circumstances surrounding an interview, not just the declarant's intent, they are free to pull back the curtain and look directly at the interviewer or interrogator's purpose and intent. To hold otherwise and say all statements made by young children are nontestimonial and nothing else matters would mean prosecutors and investigators are given carte blanche when it comes to child statements. This cannot be the answer when it comes to protecting an accused's constitutional rights. As the court in State v. Snowden explained, "[t]o allow the prosecution to utilize statements by a young child made in an environment and under circumstances in which the investigators clearly contemplated use of the statements at a later trial would create an exception that we are not prepared to recognize." (125) Pragmatically, the practitioner should prepare as if the statements made to the forensic examiner are testimonial and, therefore, subject to the Confrontation Clause.

IV. PROPOSED MILITARY RULE OF EVIDENCE

As mentioned previously, thirty-eight states have enacted some form of a codified child hearsay exception. (126) These statutes, while different, have recurring themes. Most of the statutes address, at a minimum, four main points: (1) the age of the child; (2) availability of the witness; (3) corroboration of the statements; and (4) whether a trustworthiness test is outlined within the text of the statute itself. In proposing an MRE, it is important to strike the much-needed balance between ensuring the rights of the accused and the desire to protect children from the trial process. In addition, a proposed rule should be concise, succinct, and workable. Finally, the rule must be constitutional. With this framework in mind, a codified exception should incorporate the same aforementioned criteria addressed by the states.

A. The Definition of "Child" Should Be a Person Under Age Sixteen

Given the varying beliefs as to what constitutes a child, a statute proposing a codified exception for child hearsay must provide a definition of the word "child." State definitions range from under ten years old (127) to sixteen years old. (128) Unfortunately, there is very little legislative history or explanation as to why each state chose their particular age to define a child. The UCMJ defines a child as "any person who has not attained the age of 16 years." (129) For reasons explained below, the easiest and most appropriate definition for age of a child is already defined under the Uniform Code of Military Justice. Most of the research conducted on the effects of the trial process on children and their veracity in a trial setting range in ages from infancy to 18 years old. (130) The studies do not necessarily show one particular age of a child is affected more than another.

Of the thirty-eight states that have a codified child hearsay exception, twelve of them include within the rule itself exceptions for developmentally or cognitively challenged persons. (131) This allows for those specific situations where a child may be physically older than the state's cutoff for the hearsay exception, yet is developmentally or cognitively under the specific age.

Missouri's statute accounts for developmentally or cognitively challenged children within their child hearsay statute. Specifically, that statute allows admission of statements "made by a child under the age of fourteen, or a vulnerable person...." (132) It defines "vulnerable person" as "a person who, as a result of an inadequately developed or impaired intelligence or a psychiatric disorder that materially affects ability to function, lacks the mental capacity to consent, or whose development level does not exceed that of an ordinary child of fourteen years of age." (133) In 2014, the Missouri Court of Appeals heard an appeal from a defendant challenging a trial court's ruling that the child victim, who was sixteen years old, met the "vulnerable person" definition under the statute. (134) In that case, the biological daughter of the defendant relayed to a child forensic examiner that her father began molesting her and having sexual intercourse with her when she was fourteen years old. (135) During this same interview, the forensic interviewer at the local child advocacy center estimated the child's mental capacity to be between ten and twelve years of age. (136) Finally, a Sexual Assault Forensic Examination Nurse performed an exam and also opined that her mental age was between twelve to thirteen years. (137)

As required under the statute, the prosecutor provided notice of his intent to use the statements made by the victim under the child hearsay statute. (138) At the motion hearing, the state introduced the victim's school records, documents of the guardianship of the victim, and called the victim's court appointed guardian as a witness. (139) Some of these records indicated the victim's IQ as fifty-eight. (140) Because of the records and the testimony established during the motion hearing and the trial, the appellate court upheld the trial court's finding that the victim, although over the statutory age limit of fourteen, was a vulnerable person and within the framework of the statute. (141) Interestingly, the court explained that even if someone is determined to be a vulnerable person, he or she can still be competent to testify at the hearing. (142)

This hearing described in the Missouri court is exactly the type of hearing a military judge should use in a case that involves a developmentally or cognitively challenged victim. The military should not condition the admissibility of a statement solely on physical or chronological age. Even if someone is determined to be cognitively challenged, that should not, as in the Missouri court, automatically make a witness not competent to testify. Furthermore, having this hearing does not create any more of a burden than military judges already employ. The military already has pretrial motion hearings to address using the residual hearsay exception, since notice to the opposing party of the intent to use the residual hearsay exception is required. (143) If the court is already conducting a hearing, then there is no additional burden created by the proposed rule.

One remaining issue involves whether the relevant age is the child's age at the time the statement is made or at the time the statement is offered into evidence. A few of the states with child hearsay exceptions specifically address this within the statutes themselves, (144) saying that the determination is made at the time the statement is made and not at the time it is offered in evidence. Of those that do not specifically address it within the statutes, the case law within certain states takes the position that the age at the time the statement is made determines the cutoff. (145) However, as further elaborated below, having the age be determined at the time the statement is offered at trial is the best approach and the one supported by the previously cited research. (146)

For purposes of the proposed MRE, the age determination of the child should be based on when the statement is offered into evidence, and not at the time the statement is made. Since the aforementioned research is primarily concerned with short-term psychological trauma and veracity of a child witness while testifying, the age of the child at the time they made the statement is irrelevant. While it may seem the best approach is to use the age of the child when they made the statement, the concerns raised in this article are addressed if the operative age of the child is determined at the time the statement is offered into evidence. The proposed MRE takes this same approach; that the operative age of the child is determined at the time the statement is offered into evidence.

Some may argue that this opens the door to gamesmanship in instances where the child is almost sixteen. Strategically in cases like this the defense could attempt to delay the proceedings in an effort to bring a statement outside the purview of the child hearsay exception. While this may be a possibility, the professional rules of responsibility and ethics should obviate this concern. (147) Also, the military judge should view any delay request that could potentially make an admissible statement inadmissible based on the age of a victim with a heavy amount of scrutiny and discretion.

B. The Rule Should Require a Reliability Test Only If the Witness Is Unavailable

The tests for reliability of a statement and corroborating evidence of a statement, while closely related, are separate tests. (148) Idaho v. Wright first tackled the distinction between these two. (149) In that case, the defense challenged statements admitted by a young child under Idaho's residual hearsay exception. (150) Specifically, they challenged the statements on the basis that they did not possess sufficient indicia of reliability. (151) The Court held that only the circumstances surrounding the making of the statement itself can be used to determine the reliability of the statement. (152) By focusing on what makes other forms of hearsay reliable, the Court held that the circumstances surrounding the making of traditional hearsay statements are what makes them inherently reliable, and not other facts unrelated to the making of the statement. (153) John E.B. Myers, the author of Evidence in Child Abuse and Neglect Cases, summarizes the reasoning and holding of the Wright Court as follows:
   Only hearsay that has circumstantial guarantees of reliability
   equivalent to those found in specific hearsay exceptions, such as
   excited utterances, dying declarations, and statements for purposes
   of diagnosis or treatment, reveals that the indicia of reliability
   for these exceptions derive from the circumstances in which they
   were made. That is, excited utterances are reliable because they
   are made shortly following a startling event and before the
   declarant has time to fabricate. A dying declaration is reliable
   because those who know they are about to die will not want to meet
   their maker with a lie upon their lips. And statements for
   diagnosis or treatment are reliable because of the patient's
   incentive to be truthful with the doctor. Because the reliability
   of such statements derives from the circumstances in which they are
   made, and because the residual exception requires that hearsay
   proffered under this exception possess guarantees of
   trustworthiness that are "equivalent" to the reliability of the
   other exceptions, it follows that, like the other exceptions, the
   reliability of hearsay offered under the residual exception must be
   gauged by the circumstances in which the statement was made. (154)


Because of the Wright decision, courts have only been able to use the specifics surrounding the making of a statement when reviewing statements under the residual hearsay exception. These specifics include: prior testimony, (155) testimonial competence when the statement was made, (156) testimonial competence at the time of trial, (157) spontaneity of the statement, (158) whether others overheard the statement, (159) whether the statement was elicited by questioning, (160) mental health counseling before the statement, (161) whether the statement was tape recorded, (162) whether the statement is consistent, (163) the state of mind and emotion of the child when the statement was made, (164) gestures made while making the statement, (165) unusual sexual knowledge, (166) unique detail of the statement, (167) age of the child, (168) terminology used, (169) statements against interest, (170) motive to fabricate, (171) personal knowledge, (172) level of understanding, (173) and expert testimony. (174) Although as the dissent in Wright points out, limiting the evidence to only that surrounding the making of the statement is somewhat flawed, as many times evidence surrounding the making of the statement and evidence corroborating the statement actually overlap. (175)

Under the proposed MRE, courts will not be restricted to examining only the circumstances surrounding the statement, but will be able to look toward corroborating evidence as well. This will not run afoul of the Wright decision because the Supreme Court decided Wright on the constitutional issues of Confrontation under the Sixth Amendment. (176) Wright's reasoning arguably will not apply if the constitutional concerns (i.e., under the Confrontation Clause) are resolved at trial. (177)

The constitutional concerns at trial are resolved in one of two ways. First, if the statement at issue is testimonial, the Confrontation Clause is satisfied if the child witness testifies at trial and is subject to cross-examination. (178) Second, if the statement at issue is nontestimonial, according to Crawford and its progeny, the Confrontation Clause is satisfied and jurisdictional hearsay rules will determine admissibility at trial. (179) Under those evidentiary rules, corroborative evidence is relevant. (180) Corroborating evidence, in addition to some of the overlap with the circumstances surrounding the statement, can include: medical and physical evidence of abuse; (181) changes in behavior of the child; (182) corroborative hearsay statements; (183) reliability of the person who heard the statement; (184) more than one victim with the same story; (185) defendant's opportunity to commit the act; (186) admission by the defendant; (187) prior uncharged misconduct of the defendant; (188) and expert testimony that the child was abused. (189)

In sum, either the child testifies or the statement is nontestimonial. Either way, there are no constitutional roadblocks for a military court to consider the circumstances surrounding the making of the statement as well as corroborating evidence of the statement.

Under the proposed MRE, the reliability test with analysis of the aforementioned factors is required only if the child witness is unavailable for testimony. To require a reliability test when the witness is available is not mandated by current legal jurisprudence and is unnecessary when taking into account the ability of the defense. If the witness is available and testifies, the defense can conduct cross-examination as they see fit, and they have the ability to attack the statement in whatever manner allowed under the rules. (190) Nevertheless, when a hearsay statement is offered at trial and the child witness testifies, the military judge, if requested by defense, should provide an instruction to the panel members about the statement. (191) In essence, this instruction allows the panel members to conduct their own reliability test based on their knowledge of human nature, common sense, and any other factor they believe is relevant. Finally, as with any panel member instruction, the defense is free to argue the facts as they developed in trial, coupled with the member instruction on child hearsay statements.

Turning now to when the child witness is unavailable, the proposed MRE requires a reliability test. If the witness is unavailable, then as discussed above, the statement must be nontestimonial to be admitted at trial. In that case, there is no Confrontation Clause concern. Since there are no constitutional concerns, Wright, arguably, would not apply in this case, leaving one to believe that a reliability test may not be required at all. Even so, the Due Process Clause (192) would most likely still require some sort of reliability test. Simply allowing unfettered admission of a statement without allowing the defense the ability to confront the witness could still run afoul of the constitution. (193) At the end of the day, it is all about fairness. Affording prosecutors the best ammunition to deal with child victim cases must not be done at the expense of the defendant's rights and abilities to defend themselves. The text of the proposed rule would include language requiring the judge to conduct a reliability test prior to admission of the statement. A few states include the specific factors the court should consider when determining the reliability of the statement to be admitted. (194) For purposes of the proposed MRE, this is unnecessary as it allows for the possibility of restricting a court's ability to look at factors that may not be specifically enumerated within the statute. On the other hand, to include all possible factors that a court can use to judge reliability of a statement would make the rule entirely too lengthy and convoluted. Including a non-exhaustive list of factors within the discussion section of the rule would serve to provide courts possible factors to consider while not making the statutory language of the rule too burdensome.

Some might argue this will result in prosecutors placing children on the witness stand who should not testify. If the rule is followed correctly, it will not. Under the proposed rule, proponents of child hearsay statements are required to provide notice similar to that required in the residual hearsay exception. This notice allows the opponent of the evidence to prepare for the statement as well as contemplate and file the requisite motions prior to trial. (195) This same process already occurs, using the residual hearsay exception. If the opponent of the evidence files a motion to exclude, the court will order a motion hearing to determine whether the statement will be admissible by conducting the reliability test required under the rule. If the court determines the statements inadmissible, the proponent of the statement can then make a decision, after consulting with possible experts and guardians, whether the child will actually testify. The procedure of the rule ensures that children testify only if it is the last option.

C. The Statement Should Be Admissible without Regard to Availability of the Child

The previous section discussed whether the courts should conduct a reliability test. This section will focus on the availability of the child and whether the admission of the statement should be conditioned on the same. As addressed above, all of the discussion about admission of a statement under the proposed exception presupposes that the court has determined the statement is either nontestimonial or the child is available for cross examination. (196) Codified within the rule itself, most states' child hearsay exceptions allow for admission of the statements without regard to the child's availability. (197) This seems to make the most sense. If the statement has already cleared the Confrontation Clause hurdle, there should be no restriction on whether the child is available as a witness or not. Under the proposed MRE, the admission of the statements should not hinge on whether the child is available for testimony However, further analysis on this point is required to help practitioners determine whether corroboration evidence will be required at trial.

While the military rules of evidence define what makes a witness unavailable, those situations are relatively easy to recognize at trial. Under MRE 804, a witness is deemed to be unavailable when a privilege applies, the witness refuses to testify despite an order to do so, he or she testifies to not remembering the subject matter, or the witness cannot be at trial because of sickness or death. (198) However, outside of these instances, it is not as simple as whether someone takes the witness stand or not. (199) Courts should determine a child is unavailable if there is evidence that they will suffer psychological harm or trauma if they testify.

Some jurisdictions have taken this very position, indicating evidence that the child will suffer psychological harm if they testify is enough to render a child unavailable at trial. (200) In fact, several states have included within their child hearsay statutes language allowing courts to declare a child witness psychologically unavailable. (201) In Alabama, for example, the statute defines unavailability to include a "[substantial likelihood that the child would suffer severe emotional trauma from testifying at the proceeding or by means of closed circuit television." (202) Considering that the research, as well as the law, have recognized the trauma a child can suffer from testifying, it only makes sense that a codified exception for the military courts include language similar to Alabama's. Military judges should have the authority to declare a child witness unavailable for purposes of a codified child hearsay exception if they are presented with sufficient evidence that the child witness will suffer psychological harm or trauma if required to testify. Since each person is different, there should be a specific finding that the child will suffer harm as opposed to possibly suffer ham?. (203)

D. The Corroboration Requirement Is Satisfied within the Reliability Test

As discussed above, reliability of a statement and corroborating evidence of a statement are separate tests. (204) However, the proposed rule has the corroboration requirement satisfied within the reliability test itself. Most states that have a child hearsay exception require corroboration of the statement if the child is unavailable as a witness. (205) It is a scary proposition to allow a simple statement made by a child not available for cross examination to be the only statement used to convict an accused. Many states have built into the text of their rule the requirement for a reliability test as well as corroboration. (206) This, most likely, is a reaction to the holding in Wright that explains the difference between the two. Arguably, the distinction between a reliability test and corroborating evidence is unneeded as long as the constitutional concerns have been addressed. Therefore, the proposed MRE would not have a separate requirement for the evidence to be corroborated since the court can consider evidence surrounding the making of the statement as well as other evidence that corroborates the statement. This will make the process of admitting a statement less convoluted for the practitioner.

E. The Rule Is Constitutional

As long as the statement is nontestimonial or the witness is available to testily, any challenge to the rule based on the Confrontation Clause (207) will not succeed. (208) In addition to confrontation challenges, defendants have challenged child hearsay statutes based on a violation of the Equal Protection Clause (209) and have met with little success. (210) If a statute "operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution" (211) the statute "receives strict judicial scrutiny to ascertain whether the classification is necessary to a compelling state interest." (212) The Supreme Court has stated "a classification neither involving fundamental rights nor proceeding along suspect lines ... cannot run afoul of the Equal Protection Clause if there is a rational relationship between disparity of treatment and some legitimate governmental purpose." (213) Fundamental rights include the right to vote, (214) free exercise of first amendment freedoms, (215) right to privacy, (216) and the right to travel. (217) As long as an accused can present a complete defense at trial and has a "reasonable opportunity to submit to the jury in his defense all of the facts bearing upon the issue, there is no ground for holding that due process of law has been denied him." (218) In a rational basis review, the burden of proving a violation of the Equal Protection Clause (219) rests with the moving party. (220) Because there is no fundamental right infringed upon by the enactment of a child hearsay exception, there must only be a rational relationship between the enactment of the statute and a legitimate governmental need.

V. CONCLUSION

As the Supreme Court has said, "[I]t is the odd legal rule that does not have some form of exception for children." (221) There are multiple benefits of a specific, codified, child hearsay exception. First, it helps ensure that the statements received into evidence are truthful. As detailed in this article, numerous studies have shown children have a difficult time relaying the facts while subject to the rigors of the trial process. Presumably, an adult victim will have a choice when it comes to whether they will participate in the trial process. Although testifying in trial is stressful for anyone involved, sadly, children are not usually the ones making the determination as to whether they will participate in the proceedings. This rule attempts to shield them as much as possible from the rigors of trial testimony and, at the same time, ensuring the fact-finder is presented with reliable information.

Second, it provides all parties a predictable and workable rule when preparing for litigation that involves a child witness. If a child is available, both parties understand the bounds of the rule and can prepare accordingly, including requesting a potential panel instruction regarding any statement admitted where the child also testified. Although there is still a reliability test when a child is unavailable, certain issues should not and cannot be avoided. The U.S. Constitution mandates, and an accused is entitled to, the right to a fair trial. Requiring a reliability test if the child does not testify, but not requiring one when they do, strikes the much-needed balance between an accused's constitutional rights and the prosecution of those who may have harmed children.

Statistics show the prosecution of these offenses in the military is on the rise. Providing prosecutors and commanders with a specific rule that allows them to further root out and prosecute the members of their units who commit child offenses also provides a shield to protect the child from the process.

Finally, this article will address the vignette questions posed in the introduction. Since the statements made to the mother are nontestimonial, there are no Confrontation Clause concerns. If the prosecutor chooses to have the child testify, the mother and the child can simply state under oath what the child told her, using the proposed exception. There is no need for a lengthy hearing about the reliability of the statement. The defense is free to cross-examine the child and the mother on the particulars of the statement and the circumstances surrounding the making of the statements. Additionally, they may request a panel member instruction that allows the panel members to use their common sense with regard to the veracity of the statement. If the child is unavailable as a witness, the court will conduct a hearing outside the presence of the panel members to determine admissibility. The court will no longer be constrained by a rule that is to be rarely used or by an illogical holding in Idaho v. Wright. Whether the child testifies or not, the statement is admissible, provided the prosecutor complied with the notice requirement and satisfied the reliability test.

The statement made to the forensic examiner is testimonial. As discussed above, when applying the tests enumerated by courts prior to Clark along with the Clark holding, it is clear these statements will be testimonial. Prior to the statements being admitted, the child would have to testify. Once the Confrontation Clause has been satisfied, the analysis is the same as the statements made to the mother or for any other hearsay exception. The statement is admitted and the defense can request the aforementioned panel member instruction regarding the evidence they heard. If the child does not testify, the Confrontation Clause is not satisfied and the court will not admit the statement.

The proposed rule is succinct. The discussion section after the proposed rule would illuminate the reasoning behind the rule as well as specific cases that have dictated the reasons for the drafting and wording of the rule. Children are the smallest, most vulnerable members of our society. They are speaking. It is time the military listens.

Appendix A Proposed Military Rule of Evidence

Rule 803 A: Admission of Child Statements

a. In General. An out of court statement made by a child is admissible, provided that if the declarant is unavailable as a witness, the military judge determines the statement has particularized guarantees of trustworthiness.

b. Definitions.

1. Child. For purposes of this section, a child is defined as a person who physically, cognitively, or developmentally has not attained the age of sixteen at the time the statement is offered into evidence.

2. Unavailability. In addition to the criteria listed in MRE 804, unavailability includes a substantial likelihood that the child would suffer severe emotional trauma from testifying at the proceeding.

c. Notice. The statement is admissible only if, before the trial or hearing, the proponent gives the adverse party reasonable notice of the intent to offer the statement and its particulars.

Draft Discussion:

This rule is applicable to statements made by a child only after the Confrontation Clause requirements of the U.S. Constitution have been satisfied. See Crawford v. Washington. This rule accounts for certain situations wherein the person making the statement is physically sixteen years of age or older, yet has the cognitive or mental capacity of a person under sixteen years of age. This can be proven by expert testimony, other relevant documents, or a combination of both testimony and documents. Although expert testimony may be helpful, it should not be required. Additionally, there is no specific reliability test that must be conducted by the trial judge. Rather, courts should look to the applicable case law about corroboration and extrinsic evidence for guidance on potential appropriate factors to determine guarantees of trustworthiness and should not feel restrained by Idaho v. Wright and its limitation on corroborative evidence. See United States v. Ureta, 44 M.J. 290 (C.A.A.F. 1996) and United States v. McGrath, 39 M.J. 158 (C.M.A.. 1994) cert, denied, 513 U.S. 961 (1994). This rule is subject to MRE 403. Finally, if a statement made by a child is admitted and the court determined the child to be unavailable, the use of a member instruction regarding the statement may be advisable.

Major M. ARTHUR VAUGHN II, Major M. Arthur Vaughn II (B.A., Auburn University (2002); J.D., Appalachian School of Law (2007); LL.M., The Judge Advocate General's Legal Center and School (2016)) is an instructor in the Military Justice Division at The Air Force Judge Advocate General's School, Maxwell Air Force Base, Alabama. He is a member of the bars of Alabama; the Northern, Middle, and Southern Districts of Alabama; the Air Force Court of Criminal Appeals; and the Court of Appeals for the Armed Forces.

(1) Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987).

(2) A First Sergeant is a senior noncommissioned officer within a unit that assists the Commander, among other things, with disciplinary issues and unit morale. See U.S. Dep't of Air Force, Instr. 36-2618, Enlisted Force Structure para. 6.1.7 (23 March 2012).

(3) 10 U.S.C. [section] 831 (2012) ("No person ... may compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him.").

(4) A "no-contact order" is a tool available to a commander to restrict a service member's ability to associate with a particular person. See MANUAL FOR COURTS-MARTIAL, UNITED STATES, R.C.M. 304(a)(1) (2016) [hereinafter MCM].

(5) "A forensic interview of a child is a developmentally sensitive and legally sound method of gathering factual information regarding allegations of abuse or exposure to violence. This interview is conducted by a competently trained, neutral professional utilizing research and practice-informed techniques as part of a larger investigative process." U.S. DEP'T OF JUSTICE, OFFICE OF JUVENILE DELINQUENCY PREVENTION, JUVENILE JUSTICE BULLETIN 3, (September 2015), https://www.ojjdp.gov/pubs/248749.pdf.

(6) See, e.g., United States v. Fetrow, 75 M.J. 574 (A.F. Ct. Crim. App. 2016).

(7) See infra Appendix A for a proposed Military Rule of Evidence (MRE).

(8) U.S. CONST, amend. VI ("In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him....").

(9) Id.

(10) Coyv. Iowa, 487 U.S. 1012, 1017-21 (1988).

(11) U.S. CONST, amend. VI.

(12) See Maryland v. Craig, 497 U.S. 836, 845 (1990) ("The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant."); Lee v. Illinois, 476 U.S. 530, 540 (1986) ("The right to confront and crossexamine witnesses is primarily a functional right that promotes reliability in criminal trials."); Dutton v. Evans, 400 U.S. 74, 89 (1970) ("[T]he mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials.").

(13) See Ann E. Tobey et al., Balancing the Rights of Children and Defendants: Effects of Closed-Circuit Television on Children s Accuracy and Jurors ' Perceptions, in MEMORY AND TESTIMONY IN THE CHILD WITNESS 214, 223 (1994) (stating studies seem to indicate it is more difficult for children to accurately testify when accused is present as opposed to the Supreme Court's opinion in Coy v. Iowa).

(14) Jodi A. Quas & Mariya Sumaroka, Consequences of Legal Involvement on Child Victims of Maltreatment, in CHILDREN'S TESTIMONY: A HANDBOOK OF PSYCHOLOGICAL RESEARCH AND FORENSIC PRACTICE 323, 330 (Michael E. Lamb et al. eds., 2d ed. 2011).

(15) Graham M. Davies & Lindsay C. Malloy, Relationship Between Research and Practice, in CHILDREN'S TESTIMONY: A HANDBOOK OF PSYCHOLOGICAL RESEARCH AND FORENSIC PRACTICE 371, 387 (Michael E. Lamb et al. eds., 2d ed. 2011) ("The facets of legal involvement that appear most distressing including providing testimony in open court, testifying while facing the defendant, and undergoing cross-examination.").

(16) Id.

(17) Brief for American Psychological Association as Amici Curiae in support of neither party at 18, Maryland v. Craig, 497 U.S. 836 (1990) (No. 89-478), 1990 WL 10013093, at 18 [hereinafter APA Brief].

(18) At least two separate studies took children between the ages of seven and ten and provided them information in a relaxed setting. See Karen J. Saywitz et al., Children's Testimony and Their Perceptions of Stress In and Out of the Courtroom, 17 CHILD ABUSE & NEGLECT 613, 613-22 (1993); Paula E. Hill, et al., Videotaping Children's Testimony, 85 MICH. L. REV. 809, 809-33 (1987). They then divided the children up between a mock trial setting and a relaxed classroom setting. Id. The children in the trial setting performed less well and were more likely to make errors in response to questions. Id.

(19) U.S. CONST, amend. VI.

(20) APA Brief, supra note 17, at 7-8.

(21) Craig, 497 U.S. at 855 (stating there is a growing body of academic literature documenting the psychological trauma suffered by child abuse victims who must testify in court).

(22) Id. at 852 (quoting Globe Newspaper Co. v. Super. Ct. of Norfolk County, 457 U.S. 596, 607 (1982)).

(23) Id. at 852-53 (quoting N.Y. v. Ferber, 458 U.S. 747, 757 (1982)).

(24) See, e.g., KATHLEEN MURRAY, LIVE TELEVISION LINK: AN EVALUATION OF ITS USE BY CHILD WITNESSES IN SCOTTISH CRIMINAL TRIALS ii (Great Britain, Scottish Office) (1995).

(25) Id.

(26) Id.

(27) Id. at 67.

(28) U.S. DEP'T OF DEF. INSTR. 6495.02, SEXUAL ASSAULT PREVENTION AND RESPONSE (SAPR) PROGRAM PROCEDURES encl. 4, para, (c)(1) (7 July 2015).

(29) J.D.B, v. N.C., 564 U.S. 261, 318 (2011) (citing Eddings v. Okla., 455 U.S. 104, 115-16(1982)).

(30) MCM, supra note 4, Mil. R. Evid. 803(2).

(31) MCM, supra note 4, Mil. R. Evid. 803(4).

(32) State v. Jasper, 677 So. 2d 553, 563 (La. Ct. App. 1996) ("In determining whether a statement was made under the stress of the startling event, the most important factor is time.").

(33) See United States v. Lemere, 22 M.J. 61, 68 (C.M.A. 1986) (holding a twelve hour lapse of time was too long); United States v. Know, 1997 WL 214810, 8 (N-M.C.M.R. Mar. 31, 1997) (holding statements made more than a year after the event was too long); United States v. Spychala, 40 M.J. 647, 650 (N-M.C.M.R. 1994) (citing United States v. Arnold, 25 M.J. 129 (C.M.A. 1987)) (stating that "30 days is well beyond the outer limits of statements previously found admissible as excited utterances"); United States v. Whitney, 18 M.J. 700, 702 (A.F.C.M.R. 1984) (finding four days was too long to be admissible under the excited utterance exception).

(34) State v. Jones, 451 S.E.2d 826, 842 (N.C. 1994) (holding that the exception did not apply because the statements were provided for the purpose of litigation and not medical diagnosis); United States v. Edens, 31 M.J. 267, 269 (C.M.A. 1990) (stating that for statements to be admissible under the medical diagnosis or treatment exception, the statement must be made for the purpose of medical diagnosis or treatment and an expectation in the mind of the declarant they will receive a medical diagnosis or treatment). In the example described in the vignette in the introduction to this paper, the purpose of the child forensic interview is to collect and preserve evidence because, presumably, the child will have already received medical treatment prior to a coordinated interview between the investigative agency and a forensic interviewer.

(35) United States v. Vazquez, 73 M.J. 683 (A.F. Ct. Crim. App. 2014); United States v. Callaway, 2014 WL 5511335 (A.F. Ct. Crim. App. 2014); United States v. Provorse, 2015 WL 5883154 (N-M. Ct. Crim. App. 2015); United States v. Henderson, 2014 WL 7494529 (A.F. Ct. Crim. App. 2014); United States v. Betts, 2014 WL 6764010 (A.F. Ct. Crim. App. 2014); United States v. Rich, 2015 WL 9487921 (N-M. Ct. Crim. App. 2015).

(36) See, e.g., Vazquez, 73 M.J. 683.

(37) See MCM, supra note 4, Mil. R. Evid. 807 analysis, at A22-68 ("The [r]ule strikes a balance between the general policy behind the Rules of Evidence of permitting admission of probative and reliable evidence and the congressional intent 'that the residual hearsay exceptions will be used very rarely, and only in exceptional circumstances.'" (quoting S. Rep. No. 93-127 (1974))); Vazquez, 73 M.J. 683.

(38) MCM, supra note 4, Mil. R. Evid. 807; Vazquez, 73 M.J. 683.

(39) See MCM, supra note 4, Mil. R. Evid. 807(a)(2).

(40) See MCM, supra note 4, Mil. R. Evid. 807(a)(3); United States v. Czachorowski, 66 M.J. 432, 436 (C.A.A.F. 2008) ("Often, then, because the direct testimony of the hearsay declarant ordinarily would be judged the most probative evidence, a showing that the outof-court declarant is unavailable to testify would be helpful to fulfill the requirements of Rule 807(B)." (citing United States v. W. B., 452 F.3d 1002, 1005-06 (8th Cir. 2006))).

(41) See Czachorowski, 66 M.J. at 432.

(42) MANUAL FOR COURTS-MARTIAL, UNITED STATES, MIL. R. EVID. 803 (1986) (emphasis added).

(43) Czachorowski, 66 M.J. at 433 n. 1 (referencing the Federal Rules of Evidence 807 advisory committee note).

(44) Id.

(45) United States v. Bridges, 55 M.J. 60, 64 (C.A.A.F. 2001).

(46) United States v. Pollard, 38 M.J. 41, 49 (C.M.A. 1993) (citing United States v. Powell, 22 M.J. 141, 145 (C.M.A. 1986)).

(47) Idaho v. Wright, 497 U.S. 805, 821 (1990); United States v. Donaldson, 58 M.J. 477, 488 (C.A.A.F. 2003); United States v. Kelley, 45 M.J. 275, 281 (C.A.A.F. 1996).

(48) See, e.g., Pollard, 38 M.J. at 49 (stating thirteen year old and nine year old each describing sexual acts with their father indicate reliability); People v. Bowers, 801 P.2d 511,521 (Colo. 1990).

(49) See Major Beth A. Townsend, Defending the "Indefensible": A Primer to Defending Allegations of Child Abuse, 45 A.F. L. REV. 261, 285 (1998).

(50) See United States v. Peneaux, 432 F.3d 882, 893 (8th Cir. 2005).

(51) Justice Scalia sums it up best in Crawford v. Washington:
   Reliability is an amorphous, if not entirely subjective, concept.
   There are countless factors bearing on whether a statement is
   reliable; the nine-factor balancing test applied by the Court of
   Appeals below is representative.... For example, the Colorado
   Supreme Court held a statement more reliable because its
   inculpation of the defendant was "detailed," while the Fourth
   Circuit found a statement more reliable because the portion
   implicating another was "fleeting." The Virginia Court of Appeals
   found a statement more reliable because the witness was in custody
   and charged with a crime (thus making the statement more obviously
   against her penal interest), while the Wisconsin Court of Appeals
   found a statement more reliable because the witness was not in
   custody and not a suspect. Finally, the Colorado Supreme Court in
   one case found a statement more reliable because it was given
   "immediately after" the events at issue, while that same court, in
   another case, found a statement more reliable because two years had
   elapsed, (internal citations omitted).


Crawford v. Washington, 541 U.S. 36, 63 (2004) (internal citations omitted).

(52) This is the latest report available on their website. Child Maltreatment 2015, U.S. DEP'T HEALTH & HUM.SERVS., http://www.acf.hhs.gov/sites/default/files/cb/em2015.pdf.

(53) This includes civilian and military children.

(54) Child Maltreatment 2015, U.S. DEP'T HEALTH & HUM.SERVS., http://www.acf.hhs.gov/ sites/default/files/cb/cm2015.pdf.

(55) Christopher Wildeman et al., The Prevalence of Confirmed Maltreatment Among American Children, 2004-2011, 168 JAMA Pediatrics 706, 709 (2014), https:// jamanetwork.com/journals/jamapediatrics/fullarticle/1876686.

(56) Richard Lardner & Eileen Sullivan, Opaque military justice system shields child sex abuse cases, ASSOCIATED PRESS (November 24, 2015), http://bigstory.ap.org/article/ c7c2772ba05c4241a9bcebcf745dlc71/opaque-military-justice-system-shields-child-sexabuse (The article discussed the lack of a PACER-like system in the military that would allow the general public to review court-martial filings and results. Currently, the only way to get this information is through a FOIA request which can take time. Additionally, the article engages in much discussion about the plea bargaining system and plea deals in the military justice system.).

(57) Id.

(58) Id.

(59) Id.

(60) Specifically, the percentages of cases tried to completion in the Army involving child victims from 2011 to 2015 are as follows: 2011--9.7%, 2012--13.5%, 2013--17.5%, 2014--16.3%, 2015--16.6%, 2016--20.1%, and 2017--23.9%. The author obtained this information in November 2017 from Office of the Clerk of Court for the Army Court of Criminal Appeals. Notes on file with the Author. It should be noted that these numbers do not necessarily mean all of these cases with children specifically involved hearsay statements made by children. They are simply cases that involved child victims.

(61) Specifically, the percentages of cases tried to completion in the Air Force involving child victims from 2011 to 2015 are as follows: 2011--7.8%, 2012--5.7%, 2013 6.4%, 2014--7.2%, 2015--10%, 2016--9%, and 2017--7.8%. The author obtained this information in November 2017 from the Headquarters for Military Justice at the Air Force Legal Operations Agency. Notes on file with the Author. It should be noted that these numbers do not necessarily mean all of these cases with children specifically involved hearsay statements made by children. They are simply cases that involved child victims.

(62) Specifically, the percentages of cases tried to completion in the Coast Guard involving child victims from 2013 to 2017 are as follows: 2013-4%, 2014--6%, 2015--14%, 2016--14%, 2017--5%. The author obtained this information in December 2017 from the Coast Guard office of Military Justice. Notes are on file with the author.

(63) Id.

(64) According to the Navy Military Justice Office (Code 20), they do not specifically track this information. The only way to obtain this information is to review each month's case summaries to determine if any cases involved child victims. Similarly, the Marine Corps Trial Counsel Assistance Program (TCAP) does not specifically track this statistic.

(65) Brigadier General Patrick Finnegan, U.S. Army, Dean of the Academic Board, United States Military Academy, West Point, New York, Today's Military Advocates: The Challenge of Fulfilling Our Nation s Expectations for a Military Justice System that Is Fair and Just, Address Given at the Thirty-Sixth Kenneth J. Hodson Lecture on Criminal Law, 195 MIL. L. REV. 190, 192 (2008) (quoting Justice Oliver Wendell Holmes, who said, "A system of justice must not only be good, but it must be seen to be good.").

(66) Maryland v. Craig, 497 U.S. 836 (1990).

(67) Id. at 853-55.

(68) Id. at 853-54 ("Thirty-seven States, for example, permit the use of videotaped testimony of sexually abused children; 24 States have authorized the use of one-way closed circuit television testimony in child abuse cases; and 8 States authorize the use of a two-way system in which the child witness is permitted to see the courtroom and the defendant on a video monitor and in which the jury and judge are permitted to view the child during the testimony.").

(69) Id. at 853 ("We likewise conclude today that a State's interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant's right to face his or her accusers in court. That a significant majority of States have enacted statutes to protect child witnesses from the trauma of giving testimony in child abuse cases attests to the widespread belief in the importance of such a public policy.").

(70) FED. R. EVID. 414. Rule 414 allows propensity evidence of an accused. Id. In child molestation cases, "the court may admit evidence that the defendant committed any other child molestation." Id.

(71) JUDICIAL CONFERENCE OF THE UNITED STATES, REPORT OF THE JUDICIAL CONFERENCE OF THE UNITED STATES ON THE ADMISSION OF CHARACTER EVIDENCE IN CERTAIN SEXUAL MISCONDUCT CASES [section] 111 (1995).

(72) Id.

(73) Id.

(74) See supra text accompanying notes 13-18, 20-27.

(75) See supra text accompanying note 18.

(76) MRE 1102 specifically states that amendments to the Federal Rules of Evidence will automatically apply to the Military Rules of Evidence unless acted upon by the President of the United States. MCM, supra note 4, MIL. R. EVID. 1102.

(77) "In a court-martial proceeding in which an accused is charged with an act of child molestation, the military judge may admit evidence that the accused committed any other offense of child molestation." MCM, supra note 4, MIL. R. EVID. 414(a).

(78) See, e.g., United States v. Wright, 53 M.J. 476 (C.A.A.F. 2000); United States v. Dacosta, 63 M.J. 575 (A.C.C.A. 2006).

(79) U.S. Const, amend. VI.

(80) Id.

(81) Pointer v. Texas 380 US 400, 406 (1965).

(82) U.S. Const, amend. VI.

(83) MCM, supra note 4, MIL. R. EVID. 801(c).

(84) MCM, supra note 4, MIL. R. EVID. 801(d).

(85) MCM, supra note 4, MIL. R. EVID. 804.

(86) Crawford v. Washington, 541 U.S. 36 (2004).

(87) U.S. Const, amend. VI.

(88) Ohio v. Roberts, 448 U.S. 56, 66 (1980) ("Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.").

(89) Crawford, 541 U.S. at 68 ("Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law--as does Roberts [448 U.S. 56], and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.").

(90) Id.

(91) Davis v. Washington, 547 U.S. 813, 821 (2006) (stating nontestimonial statements are subject to traditional hearsay limitations while testimonial statements must first satisfy the Sixth Amendment of the Constitution).

(92) Crawford, 541 U.S. at 68.

(93) Id.

(94) Id.

(95) Id.

(96) Id. ("We leave for another day any effort to spell out a comprehensive definition of 'testimonial.'").

(97) William M. Howard, Annotation, Construction and Application of Supreme Court's Ruling in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 63 Fed. R. Evid. Serv. 1077 (2004), with Respect to Confrontation Clause Challenges to Admissibility of Hearsay Statement by Declarant Whom Defendant Had No Opportunity to Cross-Examine, 30 A.L.R. 6th 1 (2017).

(98) Ohio v. Clark, 135 S. Ct. 2173 (2015).

(99) Id. at 2177.

(100) Id. at 2178 ("In the lunchroom, one of L.P.'s teachers, Ramona Whitley, observed that L.P.'s left eye appeared bloodshot.... When they moved into the brighter lights of a classroom, Whitley noticed '[r]ed marks, like whips of some sort,' on L.P.'s face." (quoting State v. Clark, 999 N.E.2d 592 (2013))).

(101) Id.

(102) Id.

(103) Id. ("The next day, a social worker found the children at Clark's mother's house and took them to a hospital, where a physician discovered additional injuries suggesting child abuse.").

(104) Id.

(105) Id. (stating under Ohio Law, children under ten years of age are incompetent to testify if they "appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly" (quoting Ohio Rule Evid. 601(A) (Lexis 2010))).

(106) Id. (stating after a motion hearing declaring the child incompetent to testify, the court ruled the statements made to the teachers were admissible because they "bore sufficient guarantees of trustworthiness to be admitted as evidence").

(107) M at 2181 (stating that up until this point in Supreme Court jurisprudence, the Court had not answered whether statements made to persons other that law enforcement officers implicate the Confrontation Clause).

(108) Id.

(109) Michigan v. Bryant, 562 U.S. 344 (2011).

(110) Clark, 135 S. Ct. at 2181 ("Our holding in Bryant [562 U.S. 344] is instructive. As in Bryant, the emergency in this case was ongoing, and the circumstances were not entirely clear.").

(111) Id. at 2181-82 (indicating the defendant attempted to equate the teachers with the police and their questions with those of official interrogations).

(112) Id. at 2184.

(113) Id. at 2182 ("Few preschool students understand the details of our criminal justice system. Rather, '[rjesearch on children's understanding of the legal system find that' young children 'have little understanding of prosecution.'" (quoting Br. for American Professional Society on the Abuse of Children as Amicus Curiae 7, and n. 5)); see also United States v. Clifford, 791 F.3d 884, 888 (8th Cir. 2015); Ohio v. Saltz, 2015 WL 4610972 (Ohio Ct. App. 2015).

(114) Clark, 135 S. Ct. at 2182 (holding statements made to individuals who are not law enforcement officers are much more likely to be nontestimonial than those made to law enforcement officers); United States v. Clifford, 791 F.3d 884, 888 (2015) (holding statements made by young child to mother's boyfriend about physical abuse he witnessed deemed to be nontestimonial).

(115) Davis v. Washington, 547 U.S. 813, 822 (2006) (holding statements made for the purpose of addressing an ongoing emergency and not preserving evidence for use at trial are nontestimonial).

(116) Clark, 135 S. Ct. 2173 (2015) (finding statements by a three-year-old child to his teacher about abuse are nontestimonial); State v. Saltz, 2015 WL 4610972 (Ohio Ct. App. 2015) (finding statements of four-year-old child did not implicate the Confrontation Clause).

(117) U.S. CONST, amend. VI.

(118) Michigan v. Byant, 562 U.S. 344, 366 (2015) (stating that the formality, or lack thereof, of an encounter provides valuable information about whether there is an ongoing emergency that needs to be addressed).

(119) See Bobadilla v. Carlson, 575 F.2d 785, 791-93 (8th Cir. 2009); People v. Sisavath, 13 Cal. Rptr. 3d 753 (Cal. Ct. App. 2004); State v. Contreras, 979 So. 2d 896, 905-12 (Fla. 2008); In Re T.T., 892 N.E.2d 1163 (111. App. Ct. 2008); State v. Hooper, 176 P.3d 911, 917-18 (Idaho 2007); State v. Justus, 205 S.W.3d 872, 880-81 (Mo. 2006); State v. Blue, 717 N.W.2d 558, 564-67 (N.D. 2006); State v. Pitt, 147 P.3d 940, 943-46 (Or. Ct. App. 2006); In re S.R., 920 A.2d 1262, 1266-69 (Pa. Super. Ct. 2007).

(120) Clark, 135 S. Ct. at 2181 (emphasis added).

(121) Id. at 2184.

(122) Bryant, 562 U.S. at 384 (Scalia, J., dissenting).

(123) Id. at 370-71.

(124) Sisavath, 13 Cal. Rptr. 3d at 758.

(125) State v. Snowden, 867 A.2d 314, 329 (Md. 2005).

(126) Ala. Code [section] 15-25-31 (1994); ALASKA STAT. ANN. [section] 12.40.110 (West 1998) (grand jury proceedings only); ARK. R. EVID. 803(25) (West 1992); CAL. EVID. CODE [section] 1360 (West 1995); COLO. REV. STAT. ANN. [section] 13-25-129 (West 2015); CONN. GEN. STAT. [section] 6-11 (West 2015); Del. CODE ANN. tit. 11, [section] 3513 (West 2015); FLA. STAT. ANN. [section] 90.803(23) (West 2014); GA. CODE ANN. [section] 24-8-820 (West 2013); HAW. REV. STAT. ANN. [section] 626-1 (West 2002); IDAHO CODE ANN. [section] 19-3024 (West 2015); 725 III. COMP. STAT. ANN. 5/115-10 (West 2015); IND. CODE ANN. [section] 35-37-4-6 (West 2015); KAN. STAT. ANN. [section] 60-460 (West 2011); LA. CODE EVID. ANN art. 804 (2010); ME. RE. STAT. ANN. tit. 15, [section] 1205 (2006); MD. CODE ANN., CRIM. PROC. [section] 11-304 (West 2011); MASS. GEN. LAWS ANN. ch. 233, [section][section] 81-83 (West 1990); MICH. R. EVID. 803A (West 1991); MINN. STAT. ANN. [section] 595.02 (West 2013); MISS. R. EVID. 803 (West 1997); MO. ANN. STAT. [section] 491.075 (West 2012); NEV. REV. STAT. ANN. [section] 51.385 (West 2001); N.J. R. EVID. 803 (West 2005); N.D. R. EVID. 803 (West 2014); OHIO R. EVID. 807 (West 1991); OKLA. STAT. ANN. tit. 12, [section] 2803.1 (West 2013); OR. REV. STAT. ANN. [section] 40.460 (West 2012); 42 PA. STA. AND CONS. STAT. ANN. [section] 5985.1 (West 2004); 14 R.I. GEN. LAWS ANN. [section] 14-1-68 (West 1985); S.C. CODE ANN. [section] 17-23175 (2006); S.D. CODIFIED LAWS [section] 19-19-806.1 (2009); TENN. R. EVID. 803 (West 2009); TEX. CODE CRIM. PROC. ANN. art. 38.072 (West 2011); UTAH CODE ANN. [section] 77-35-15.5 (West 2008); VT. R. EVID. 804a (West 2009); VA. CODE ANN. [section] 63.2-1522 (West 2002); WASH. REV. CODE ANN. [section] 9A.44.120 (West 1995); WIS. STAT. ANN. [section] 908.08 (West 1985).

(127) ALASKA STAT. ANN. [section] 12.40.110 (West 1998); ARK. R. EVID. 803(25) (West 1992); IDAHO CODE ANN. [section] 19-3024 (West 2015); MICH. R. EVID. 803A (West 1991); MINN. STAT. ANN. [section] 595.02 (West 2013); NEV. REV. STAT. ANN. [section] 51.385 (West 2001); WASH. REV. CODE ANN. [section] 9A.44.120 (West 1995).

(128) FLA. STAT. ANN. [section] 90.83(23) (West 2014); WIS. STAT. ANN. [section] 908.08 (West 1985).

(129) MCM, supra note 4, pt. IV, [paragraph] 45b.a.(h)(4) (2012); MCM, supra note 4, MIL. R. EVID. 414.

(130) Angela Brown & David Finkelhor, Impact of Child Sexual Abuse: A Review of the Research, 99 Psychological Bulletin, no. 1, 66 (1986).

(131) FLA. STAT. ANN. [section] 90.83(23) (West 2014); 725 III. COMP. STAT. ANN. 5/115-10 (West 2015); IND. CODE ANN. [section] 35-37-4-6 (West 2015); MINN. STAT. ANN. [section] 595.02 (West 2013); MO. ANN. STAT. [section] 491.075 (West 2012); OKLA. STAT. ANN. tit. 12, [section] 2803.1 (2013); OR. REV. STAT. ANN. [section] 40.460 (West 2012); S.C. CODE ANN. [section] 17-23-175 (2006); S.D. CODIFIED LAWS [section] 19-19-806.1 (2009); TEX. CODE CRIM. PROC. ANN. art. 38.072 (West 2011); VT R. EVID. 804a (West 2009).

(132) MO. ANN. STAT. [section] 491.075 (1) (West 2012).

(133) Id.

(134) State v. Chandler, 429 S.W.3d 503 (Mo. Ct. App. 2014).

(135) Id. at 505 (finding that during a child forensic interview, the victim explained to the interviewer that the defendant had raped her, explained what rape was, and stated it had been happening since she was fourteen years old).

(136) Id. (stating that after she determined her mental capacity to be between the ages often and twelve, she adjusted her questions accordingly).

(137) Id.

(138) Id. at 506 (discussing the notice included their intention to rely on the vulnerable person definition from the statute).

(139) Id.

(140) Id. at 505.

(141) Id. at 507.

(142) Id. The court held the Missouri child hearsay statute "does not require that a 'vulnerable person' lack the competency to testify, and it does not require expert testimony. On the contrary, [the statute] contemplates that the 'vulnerable person' does testily at the proceeding. Accordingly, the competency of a 'vulnerable person' to testify at a criminal proceedings does not render that witness no longer a 'vulnerable person.'"

(143) MCM, supra note 4, MIL. R. EVID. 807(b) ("The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant's name and address, so that the party has a fair opportunity to meet it.").

(144) CAL. EVID. CODE [section] 1360 (West 1995); MICH. R. EVID. 803A(West 1991); OR. REV. STAT. ANN. [section] 40.460 (West 2012); 42 PA. STA. AND CONS. STAT. ANN. [section] 5985.1 (West 2004); S.C. CODE ANN. [section] 17-23-175 (2006); VT. R. EVID. 804a (West 2009); But see ALA. CODE [section] 15-25-31 (1994); ALASKA STAT. ANN. [section] 12.40.110 (West 1998); DEL. CODE ANN. tit. 11, [section] 3513 (West 2015); IND. CODE ANN. [section] 35-37-4-6 (West 2015); OHIO R. EVID. 807 (West 1991); VA. CODE ANN. [section] 63.2-1522 (West 2002); WIS. STAT. ANN. [section] 908.08 (West 1985).

(145) Darden v. State, 425 S.E.2d 409 (Ga. Ct. App. 1992) (holding statements made by a child victim who was under fourteen when making the statement were admissible); Blanton v. State, 880 So. 2d 798 (Fla. Dist. Ct. App. 2004) (finding child hearsay exception applies if eleven years old or less at the time the statement is made regardless of the age of the child at the time of trial); Lambert v. State, 101 So. 3d 1172 (Miss. Ct. App. 2012) (indicating the relevant age in determining whether the child hearsay exception applies is the age of the child at the time the statement is made); State v. CelisGarcia, 420 S.W.3d 723 (Mo. Ct. App. 2014) (holding victim's age at the time of trial was irrelevant to determining admissibility).

(146) See supra text accompanying note 13.

(147) See, e.g., U.S. DEP'T OF AIR FORCE, INSTR. 51-201, ADMINISTRATION OF MILITARY JUSTICE, attachment 3, standard 4-1.3 (30 July 2015).

(148) See Idaho v. Wright, 497 U.S. 805, 819 (1990).

(149) Id. at 820.

(150) Id. at 809-10.

(151) Id. at 813.

(152) Id. at 823 ("In short, the use of corroborating evidence to support a hearsay statement's 'particularized guarantees or trustworthiness' would permit admission of a presumptively unreliable statement by bootstrapping on the trustworthiness of other evidence at trial, a result we think at odds with the requirement that hearsay evidence admitted under the Confrontation Clause be so trustworthy that cross-examination of the declarant would be of marginal utility.").

(153) Id.

(154) JOHN E.B. MYERS, EVIDENCE IN CHILD ABUSE AND NEGLECT CASES VOL. 2, at 322 (3d. ed. 1997).

(155) See, e.g., United States v. Shaw, 69 F.3d 1249 (4th Cir. 1995) (finding reliability of the hearsay statement came mostly from former testimony from a former trial that was subject to a vigorous cross-examination).

(156) See, e.g., Huff v. White Motor Corp., 609 F.2d 286 (7th Cir. 1979) (stating unless the declarant was not mentally competent when the statement was made, it should be admitted under the residual hearsay exception).

(157) See, e.g., United States v. Barrett, 8 F.3d 1296, 1300 (8th Cir. 1993) ("[T]he declarant's inability to communicate may be relevant to whether the hearsay statements possessed particularized guarantees of trustworthiness." (citing Wright, 497 U.S. at 825)); People v. March, 620 N.E.2d 424, 432 (111. App. Ct. 1993) ("[I]ncompetence to testify does not necessarily render the child's out-of-court statements unreliable.").

(158) See, e.g.. Doe v. United States, 976 F.2d 1071, 1080 (7th Cir. 1992) ("[T]he more spontaneous the statement, the less likely it is to be a product of fabrication, memory loss, or distortion.... Yet, a lack of spontaneity is not necessarily fatal to the admission of hearsay, especially in the child abuse context."); United States v. Grant, 42 M.J. 340, 343 (C.A.A.F. 1995) (finding the child "spontaneously initiated the conversation"); United States v. Clark, 35 M.J. 98, 106 (C.M.A. 1992).

(159) See, e.g., United States v. Martindale, 36 M.J. 870 (N-M.C.M.R. 1993) (finding the fact that child's statement was taken by two persons who both testified at trial is one particular guarantee of trustworthiness).

(160) See, e.g., United States v. Grooms, 978 F.2d 425, 427 (8th Cir. 1992) ("[T]he statements were made to an FBI agent with special training in interviewing child victims. Agent Pritchard testified that he asked the girls open-ended questions and avoided asking them leading questions."); Grant, 42 M.J. at 344 (indicating questions asked by the relative of the child were not suggestive); Clark, 35 M.J. at 106 ("[Although Cindy had asked her the question more than once, the question did not suggest in the slightest the nature of the answer that Nikki gave or its details."); United States v. Cabral, 43 M.J. 808, 811 (A.F. Ct. Crim. App. 1996) ("Jessica's description of the sexual acts was not prompted by leading questions.").

(161) See, e.g., State v. Carlson, 812 P.2d 536, 540 (Wash. Ct. App. 1991) ("We hold, therefore, that a trial judge may find child hearsay statements unreliable on the ground that there has been a lapse of time and intervening counseling between the abuse and the statements at issue only when the evidence demonstrates that the lapse or counseling somehow affected the child's statements."); State v. Mayes, 825 P.2d 1196 (Mont. 1992).

(162) See, e.g., Cabral, 43 M.J. 808 (reasoning although the rapport portion of the interview was not videotaped, the tape was reliable for other reasons); People v. McMillan, 597 N.E.2d (Ill. Ct. App. 1992) (stating because the interview was not recorded weighed against the credibility of the statements made therein); State v. Rojas, 524 N.W.2d 659, 663 (Iowa 1994) ("We also note that the videotape is more reliable than many other forms of hearsay because the trier of fact could observe for itself how the questions were asked, what the declarant said, and the declarant's demeanor."); United States v. Palacios, 32 M.J. 1047 (A.C.M.R. 1991) (finding proponent failed to convince court of the reliability of the videotape).

(163) See, e.g., United States v. Cree, 778 F.2d 474 n.5 (8th Cir. 1985) ("[T]he fact that [a victim] made such a statement separately to the two school officials and later made similar statements to Chaussee and Agent Hellekson in our view enhances [a victim's] credibility."); United States v. Ureta, 44 M.J. 290, 196 (C.A.A.F. 1996) cert, denied, 117 S.CT. 692 (1996); United States v. Morgan, 40 M.J. 405, 410 (C.M.A. 1994); United States v. Stivers, 33 M.J. 715 (A.C.M.R. 1991); United States v. Lockwood, 23 M.J. 770, 771 (A.F.C.M.R. 1987); United States v. Crayton, 17 M.J. 932 (A.F.C.M.R. 1984).

(164) See, e.g., United States v. Farley, 992 F.2d 1122, 1126 (10th Cir. 1993) (finding victim was "still suffering pain and distress from the assault" when statements were made); Clark, 35 M.J. 98 (stating the declarant "was still suffering under the trauma of the event when she made her statements"); Ureta, 41 M.J. at 578 (finding "sincere demeanor during interview" supported reliability).

(165) See, e.g., United States v. Pollard, 34 M.J. 1008 (A.C.M.R. 1992); People v. Barger, 624 N.E.2d 405 (111. App. Ct. 1993) (stating during the course of the interview, the child demonstrated fellatio with a doll).

(166) See, e.g., United States v. King, 35 M.J. 337 (C.M.A. 1992) (indicating court may allow expert testimony about age when children are able to fabricate sexual acts); United States v. Dorian, 803 F.2d 1439, 1445 (8th Cir. 1986) ("It is unlikely that Roxanne could have fabricated the story she told ... and repeated ..., and ordinary experience suggests that Roxanne would not have engaged in the behavior with the anatomically correct dolls that Monica Whiting observed absent some prior similar experience." (citing United States v. Short, 790 F.2d 464 (6th Cir. 1986))); Clark, 35 M.J. at 107 (noting that "the substance of that answer is not within the ken of the average 5-year-old child").

(167) See, e.g., State v. Robinson, 722 P.2d 1379, 1382 (Wash. Ct. App. 1986) (finding statements of a three-year-old that "he had touched her with his tail and that soap had come out of his tail" to be unique details of the statement).

(168) See, e.g., Farley, 992 F.2d at 1126 ("D.C.'s youth 'greatly reduces[s] the likelihood that reflection and fabrication were involved.'" (quoting Morgan v. Foretich, 846 F.2d 941,948 (4th Cir. 1988))).

(169) See, e.g., People v. Bowers, 801 P.2d 511, 521 (Colo. 1990) ("In some circumstances the sexual terminology employed by a young child in describing a sexual offense can lend some measure of reliability to the child's statement").

(170) See, e.g., United States v. Morgan, 40 M.J. 405, 410 (C.M.A. 1994) ("Ann was a member of the accused's household and looked up to him for financial support. The social stigma that undoubtedly attached to her as a result of her accusations of sexual abuse must be considered as nothing less than personally devastating.").

(171) See, e.g., Guam v. Ignacio, 10 F.3d 608 (9th Cir. 1993) ("The discussion in the child's presence between the social worker and the child's mother concerning the suspicion of sexual abuse arguably provided a basis for the child to report inaccurately the abuse and possibly the identity of the abuser in an attempt to please her mother.").

(172) See, e.g., United States v. Cabral, 43 M.J. 808, 811 (A.F. Ct. Crim. App. 1996) ("[A]ppellant did not offer any plausible motive for Jessica to fabricate such a sordid story, and like the military judge, we find none."); United States v. Clark, 35 M.J. 98, 107 (C.M.A. 1992) (finding the five-year-old victim had no motive to lie); United States v. Miller, 32 M.J. 843 (N-M.C.M.R. 1991) (finding the child did not have a motive to fabricate).

(173) See e.g., State v. Smith, 384 N.W.2d 546 (Minn. Ct. App. 1986); People v. Land, 609 N.E.2d 1010 (111. Ct. App. 1993) (stating child was able to distinguish between different forms of abuse and was able to state that certain abuse did not occur).

(174) See, e.g., In re Jaclyn P., 578 N.Y.S.2d 252 (N.Y. App. Div. 1992).

(175) As the dissent in Idaho v. Wright points out, these cross over:
   But for purposes of determining the reliability of the statements,
   I can discern no difference between the factors that the Court
   believes indicate "inherent trustworthiness" and those, like
   corroborating evidence, that apparently do not. Even the factors
   endorsed by the Court will involve consideration of the very
   evidence the Court purports to exclude from the reliability
   analysis. The Court notes that one test of reliability is whether
   the child "use[d] ... terminology unexpected of a child of similar
   age." But making this determination requires consideration of the
   child's vocabulary skills and past opportunity, or lack thereof, to
   learn the terminology at issue. And, when all of the extrinsic
   circumstances of a case are considered, it may be shown that use of
   a particular word or vocabulary in fact supports the inference of
   prolonged contact with the defendant, who was known to use the
   vocabulary in question.


Idaho v. Wright, 497 U.S. 805, 833 (1990) (Kennedy, J., dissenting) (internal citations omitted).

(176) Id. at 808 ("This case requires us to decide whether the admission at trial of certain hearsay statements made by a child declarant to an examining pediatrician violates a defendant's rights under the Confrontation Clause of the Sixth Amendment.").

(177) See, e.g., United States v. Ureta, 44 M.J. 290 (C.A.A.F. 1996); United States v. McGrath, 39 M.J. 158 (C.M.A. 1994).

(178) California v. Green, 399 U.S. 149(1970).

(179) Crawford v. Washington, 541 U.S. 36, 68 (2004) ("Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law--as does Roberts [Ohio v. Roberts, 448 U.S. 56 (1980)], and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.").

(180) Ureta, 44 M.J. 290; McGrath, 39 M.J. 158; United States v. Lyons, 36 M.J. 183, 188 (C.M.A. 1992) (Crawford, J., concurring); United States v. Clark, 35 M.J. 98, 107 (C.M.A. 1992) (Crawford, J. concurring) (stating restrictions placed on consideration of corroboration does not apply when defendant waives the right to confront the hearsay witness).

(181) See, e.g., Morgan v. Foretich, 846 F.2d 941 (4th Cir. 1988); United States v. Dorian, 803 F.2d 1439 (8th Cir. 1986); United States v. Cree, 778 F.2d 474 (8th Cir. 1985); United States v. Quick, 22 M.J. 722 (A.C.M.R. 1986), aff'd, 26 M.J. 460 (C.M.A. 1988).

(182) See, e.g., State v. Robinson, 735 P.2d 801 (Ariz. 1987); State v. Richey, 490 P.2d 558 (Ariz. 1971); People v. Bowers, 801 P.2d 511 (Colo. 1990); State v. Kuone, 757 P.2d 289 (Kan. 1998).

(183) See, e.g., United States v. Martindale, 36 M.J. 870 (N-M.C.M.R. 1993); Delacruz v. State, 734 So. 2d 1116 (Fla. Ct. App. 1999); State v. Bishop, 816 P.2d 738 (Wash. App. 1991).

(184) See, e.g., State v. McKinney, 747 P.2d 1113 (Wash. App. 1987).

(185) See, e.g., Murray v. State, 770 P.2d 1131 (Alaska Ct. App. 1989); State v. Swan, 790 P.2d 610 (Wash. 1990).

(186) See, e.g., Ghelichkhani v. State, 765 So. 2d 185 (Fla. Ct. App. 2000); State v. Booth, 862 P.2d 518 (Or. App. 1993).

(187) See, e.g., Martindale, 36 M.J. 870; State v. Allen, 755 P.2d 1153 (Ariz. 1998).

(188) See, e.g.. People v. Bowers, 801 P.2d 511 (Colo. 1990); Jones v. State, 728 So. 2d 788 (Fla. Ct. App. 1999).

(189) See, e.g., Martindale, 36 M.J. 870; Bowers, 801 P.2d 511.

(190) See California v. Green, 399 U.S. 149 (1970).

(191) For example, the possible instruction could be the following: Members of the panel, you have heard statements from (name), a child aged XX years old. In evaluating this testimony, you and you alone are to determine the weight and credit to be given the statement. In making this determination, you should consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factor you believe warrants consideration using your common sense, knowledge of human nature, and ways of the world. See, e.g., KAN. STAT. ANN. [section] 60-460 (West 2011).

(192) U.S. CONST, amend. V ("No person shall be ... deprived of life, liberty, or property, without due process of law....").

(193) Michigan v. Bryant, 562 U.S. 344 n.13 (2011) ("Of course the Confrontation Clause is not the only bar to admissibility of hearsay statements at trial. State and federal rules of evidence prohibit the introduction of hearsay, subject to exceptions. Consistent with those rules, the Due Process Clauses of the Fifth and Fourteenth Amendments may constitute a further bar to admission of, for example, unreliable evidence.") (internal citations omitted).

(194) E.g., DEL. CODE ANN. tit. 11, [section] 3513 (West 2015).

(195) From the author's personal experience, this is typically done through a motion in limine.

(196) This addresses the inevitable Confrontation Clause concerns.

(197) ALA. CODE [section] 15-25-31 (1994); CAL. EVID. CODE [section] 1360 (West 1995); COLO. REV. STAT. ANN. [section] 13-25-129 (West 2015); DEL. CODE ANN. tit. 11, [section] 3513 (West 2015); FLA. STAT. ANN. [section] 90.83(23) (West 2014); IDAHO CODE ANN. [section] 19-3024 (West 2015); 725 ILL. COMP. STAT. ANN. 5/115-10 (West 2015); IND. CODE ANN. [section] 35-37-4-6 (West 2015); ME. RE. STAT. ANN. tit. 15, [section] 1205 (2006); MD. CODE ANN., CRIM. PROC. [section] 11-304 (West 2011); MINN. STAT. ANN. [section] 595.02 (West 2013); MISS. R. EVID. 803 (West 1997); MO. ANN. STAT. [section] 491.075 (West 2012); NEV. REV. STAT. ANN. [section] 51.385 (West 2001); N.J. R. EVID. 803 (West 2005); N.D. R. EVID. 803 (West 2014); OKLA. STAT. ANN. TIT. 12, [section] 2803.1 (West 2013); OR. REV. STAT. ANN. [section] 40.460 (West 2012); 42 PA. STA. AND CONS. STAT. ANN. [section] 5985.1 (West 2004); 14 R.I. GEN. LAWS ANN. [section] 14-1-68 (West 1985); S.D. CODIFIED LAWS [section] 19-19-806.1 (2009); TENN. R. EVID. 803 (West 2009); UTAH CODE ANN. [section] 77-3515.5 (West 2008); VA. CODE ANN. [section] 63.2-1522 (West 2002); WASH. REV. CODE ANN [section] 9A.44.120 (West 1995).

(198) MCM, supra note 4, Mil. R. Evid. 804(a).

(199) See, e.g., State v. Foell, 416 N.W.2d 45, 46 n.3 (S.D. 1987) (stating "the terms 'available' and 'present' are clearly not synonymous").

(200) See State v. Castaneda, 621 N.W.2d 435 (Iowa 2000); State v. Kuone, 757 P2d 289 (Kan. 1988).

(201) ALA. CODE [section] 15-25-31 (1994); CAL. EVID. CODE [section] 240(c) (West 1995); FLA. STAT. ANN. [section] 90.803(23)(a)(2)(b) (West 2014); MISS. R. EVID. 804(a)(6) (West 1997); UTAH CODE ANN. [section] 77-35-15.5(1)(h) (West 2008).

(202) Ala. Code [section] 15-25-32(2)(6) (1994).

(203) E.g., In Re Tayler, 995 A.2d 611 (2010).

(204) See supra note 148 and accompanying text.

(205) CAL. EVID. CODE [section] 1360 (West 1995); COLO. REV. STAT. ANN. [section] 13-25-129 (West 2015); FLA. STAT. ANN. [section] 90.83(23) (West 2014); IDAHO CODE ANN. [section] 19-3024 (West 2015); 725 ILL. COMP. STAT. ANN. 5/115-10 (West 2015); MD. CODE ANN., CRIM. PROC. [section] 11-304 (West 2011); MINN. STAT. ANN. [section] 595.02 (West 2013); MISS. R. EVID. 803 (West 1997);, N.J. R. EVID. 803 (West 2005); N.D. R. EVID. 803 (West 2014); OHIO R. EVID. 807 (West 1991); OKLA. STAT. ANN. tit. 12, [section] 2803.1 (West 2013); OR. REV. STAT. ANN. [section] 40.460 (West 2012); S.D. CODIFIED LAWS [section] 19-19-806.1 (2009); WASH. REV. CODE ANN. [section] 9A.44.120 (West 1995).

(206) See, e.g., CAL. EVID. CODE [section] 1360 (West 1995).

(207) U.S. CONST, amend. VI.

(208) E.g., King v. State, 929 So. 2d 1032 (Ala. Crim. App. 2005); Pantano v. State , 138 P.3d 477 (Nev. 2006).

(209) U.S. CONST, amend. XIV ("No state shall make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws.").

(210) E.g., State v. Wright, 751 S.W.2d48(Mo. 1988); In Matter of W.D., 709 P.2d 1037 (Okla. 1985).

(211) Belton v. Bd. of Police Comm'rs., 708 S.W.2d 131, 139 (Mo. 1986) (en banc) (quoting San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 17 (1973)).

(212) Id.

(213) Cent. State Univ. v. Am. Ass'n of Univ. Professors, Cent. State Univ. Chapter, 526 U.S. 124, 127-28 (1999) (quoting Heller v. Doe, 509 U.S. 312, 319-21 (1993)).

(214) Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966).

(215) San Antonio Indep. Sch. Dist., 411 U.S. 1.

(216) Roe v. Wade, 410 U.S. 113 (1973).

(217) Shapiro v. Thompson, 394 U.S. 618 (1969).

(218) Mobile, J & K.C.R. Co., v. Turnipseed, 219 U.S. 35, 43 (1910); See also California v. Trombetta, 467 U.S. 479 (1984) (stating criminal defendants must be afforded a reasonable opportunity to present a complete defense).

(219) U.S. CONST, amend. XIV.

(220) Lindsley v. Nat. Carbonic Gas Co., 220 U.S. 61, 78-79 (1911).

(221) Miller v. Alabama, 567 U.S. 460, 481 (2012).
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Author:Vaughn, M. Arthur, II
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