RD276 - Videotaped Statements of Child Victims

Executive Summary:
During the 2005 Session of the Virginia General Assembly, Delegate Robert B. Bell introduced House Bill 2932. House Bill 2932, 2005 General Assembly, Regular Session. (Va. 2005). See attachment A. This bill was referred to the House Courts of Justice Committee, which sent a letter to the Crime Commission, asking it to review the proposal.

House Bill 2932 would permit videotaped statements made by victims under the age of thirteen to be admissible as evidence in criminal trials involving either a felonious sexual offense or an abuse or neglect charge. Under the bill, the statement would be admissible only if the defendant received notice of the intent to introduce the videotaped recording at least ten days prior to the court proceeding, the child testified at the proceeding, and the judge specifically considered enumerated factors to determine if the recording “possesses particularized guarantees of trustworthiness and reliability.”

The aim of the bill is to address and ameliorate difficulties child witnesses encounter when they testify in sexual abuse and neglect trials. There are a least 20 states that currently allow videotaped testimony in child sexual abuse and neglect cases. While the proposed change in House Bill 2932 is similar to the law in a number of other states, any change to the traditional rules of hearsay must conform to the recent Supreme Court decision in Crawford v. Washington. Crawford v. Washington, 541 U.S. 36 (2004).

The Crawford decision holds that testimonial statements obtained outside of a criminal proceeding are prohibited under the Sixth Amendment from being introduced into direct evidence, unless the witness is available for cross-examination at the proceeding, or the witness is “unavailable” and the statement was subject to prior cross-examination. While House Bill 2932 requires the child to testify in order for the videotaped statement to be admissible, the bill contains language concerning factors of “trustworthiness and reliability” that come from earlier Supreme Court cases that are now overruled by Crawford. And, were the bill to be enacted into law, it could create practical problems in its implementation. If the videotaped statements were played for a jury, and then the child refused to testify, Crawford would prohibit the introduction of the evidence that had just been heard. A mistrial or dismissal would then be the only permissible outcomes.

At a minimum, any new statutory scheme allowing videotaped statements of children to be used as direct evidence should require the child to testify before the introduction of the recorded statement. The child must also be available for cross-examination. No specific tests as to the “believability” of the recorded testimony should be required, as that is for the trier of fact to determine. Instead, the legislature should simply require that any recorded interviews be conducted in accordance with professionally recognized standards. Finally, before any new statute is enacted, further study should be done on how interviews are conducted in other states that permit the use of videotaped testimony.