This Essay provides a solution to the conundrum of statements made by very young children and offered against an accused in a criminal prosecution. Currently prevailing doctrine allows one of three basic outcomes. First, in some cases the child testifies at trial. But this is not always feasible, and when it is, cross-examination is a poor method for determining the truth. Second, evidence of the child’s statement may be excluded, which denies the adjudicative process of potentially valuable information. Third, the evidence may be admitted without the child testifying at trial, which leaves the accused with no practical ability to examine the child.
We contend that courts should apply a very different framework. Some very young children lack the cognitive and perhaps moral development necessary to be considered witnesses for purposes of the Confrontation Clause; they are unable to understand the potential consequences of their statements and the significance of those statements. Accordingly, the Confrontation Clause should not apply to very young children’s statements. But a child who makes such a statement is still the source of evidence, often very probative evidence. Fundamental fairness therefore requires that the accused have the opportunity to examine the child in some manner. Such examination should not be cross-examination at trial. Rather, it should adhere to the model used for nonhuman sources of evidence: the accused should be able to select a qualified forensic interviewer, who will examine the child out of court according to a prescribed protocol. In this Essay, we outline standards that such a protocol might provide. This model allows evidentiary use of the child’s statement, gives the accused a better opportunity than does cross-examination to expose weaknesses in the child’s account, and minimizes trauma to the child.