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GA Supreme Court: Application of Child Hearsay Statute Unconstitutional

March 21, 2012

The Georgia Supreme Court has reigned in a widely-used hearsay exception for child witness statements at trial by ruling that the manner in which it has previously been applied is unconstitutional.

A child witness alleging sexual abuse must now be called by the State to testify at trial in order for his/her hearsay statements to be admissible.

The recent holding in Hatley v. State is a victory for the rights of citizens accused of sex offenses in Georgia, and puts the State in line with the U.S. Supreme Court’s interpretation of the Sixth Amendment’s confrontation clause.   The Sixth Amendment guarantees a defendant the right to “confront all witnesses against him.”  A line of cases from the U.S. Supreme Court has held that for an accuser’s statements to be used at trial, the witness making the accusation must be present and testify at trial.  The reasoning behind this rule is that the defendant must be provided with the opportunity to test the reliability of the statements through cross-examination.

However, Georgia law has recognized an exception to this rule in cases involving a child’s testimony concerning an alleged sexual offense.  O.C.G.A. § 24-3-16, commonly referred to as the Child Hearsay Statute, provides that hearsay statements made by a child under the age of 14 regarding acts of sexual abuse are admissible at trial even if the child does not testify.

Prior to Hatley, Georgia law required only that the child be “available” to testify at trial.  The State was not required to call the child to testify but, upon request of the defendant, the court would call the child to the stand to be questioned by the defense.  The Court in Hatley found this procedure unconstitutional as it failed to put the onus on the State to put the child on the witness stand to confront the defendant.  In order to comport with the defendant’s right to confront his accuser, the Court held that the Constitution requires the State to call the child to the stand to testify and then be subject to cross examination by the defense.  Once the child testifies, his/her hearsay statements to others may then be admitted into evidence.

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