Several years ago, the U.S. Supreme Court decided that the Sixth Amendment’s Confrontation Clause limits the use of out-of-court statements in lieu of actual testimony. Crawford v. Washington provides that a statement by a witness can’t come into evidence if it’s “testimonial”—unless the witness is unavailable to testify and the defendant has had a chance to cross-examine the witness. In most cases, there’s been no opportunity for cross-examination, meaning that the issue boils down to whether the statement is testimonial.
The Court in Crawford established that a statement is testimonial if the primary purpose of the conversation was to create a substitute for trial testimony. The prime example of a conversation producing a testimonial statement is a police officer’s interview of a witness.
In June of 2015, the Justices considered the case of a man convicted of abusing his girlfriend’s son. The three-year-old’s preschool teachers noticed severe injuries, asked the boy who caused them, then called the authorities after he named the boyfriend. The boy didn’t testify, but his statements to the teachers were introduced in evidence.
The Court’s majority decided that boy’s hearsay didn’t violate the Confrontation Clause. It wasn’t “testimonial”—rather, it was in response to an “ongoing emergency.” The questions and answers “were primarily aimed at identifying and ending the threat” of child abuse.
The majority also said that, because they don’t understand the criminal justice system, very young children will hardly ever give statements that can be considered testimonial. The Justices further noted that statements to people other than police officers—like teachers—are much less likely to be testimonial.
For more detail on the case and the Court’s rationale, see In Child Abuse Case, Supreme Court Narrows Right to Confront Witnesses.