In Matabarahona v. State, the Georgia Court of Appeals held that a defendant must specifically object to the introduction of child hearsay evidence on Confrontation Clause grounds in order to avoid waiving his constitutional right to confront the alleged victim.
The defendant was convicted of one count of child molestation stemming from an alleged incident involving a friend’s 8 year-old son. On appeal, the defendant argued that his confrontation rights under the Sixth Amendment were violated when the State did not call the child to testify at trial. Instead, the child’s mother testified regarding statements made to her, and a recording of the child’s forensic interview was played for the jury.
At trial, the defendant objected, arguing that both the testimony and the recording were “inadmissible hearsay.” The trial court, however, found that the statements had sufficient indicia of reliability, which was required by the Child Hearsay statute in effect at the time of the alleged offense.
For child hearsay evidence to be admissible, the statute requires that the child be called to testify “unless the adverse party forfeits or waives such child’s testimony.” The State must also provide pretrial notice of its intent to introduce child hearsay evidence. Under Hatley v. State, 290 Ga. 480 (2012), the prosecution is required to have the child victim present at the courthouse at the time of trial. That way, if the defendant objects to the presentation of the hearsay evidence as a violation of his confrontation rights, the State can call the child to testify to preserve its ability to then present the hearsay evidence. See Arbegast v. State, 32 Ga. App. 414, 422-423 (2015).
In this case, the child was present in the courthouse but the Court held that the defendant waived his Confrontation Clause objection because he only objected on general hearsay grounds and did not explicitly invoke his right to confront the witness.
This is an important lesson for criminal defense attorneys in Georgia as it is now clear that the defense must specifically note that its objection to child hearsay is grounded in the Confrontation Clause, or the issue will be forever waived.
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