into evidence that contain cross-examination questions, including answers to cross-examination
questions through a separate videotaped testimony.88
Research on the impact of videotaped testimony, as opposed to the child testifying in the
courtroom, is generally positive, which suggests that this practice does not diminish the credibility
of the witness or increase prejudice against the defendant.89 However, there is scarce research
comparing live testimony with videotaped or hearsay testimony.90 It has been suggested that
hearsay evidence of the testimony of person with whom a child has disclosed his or her abuse is
more credible than the child’s own recollection of the events.91 One hearsay exception is for
“excited utterances, statements made soon after a traumatic event while the person is still
emotionally upset.”92 Overall, research has generally supported the use of “hearsay” methods in
place of in-court testimony;93 however, these practices remain infrequent because of the
defendant’s right to confrontation.94
Prosecutors call for special hearsay exceptions for child abuse cases in just a few cases,
using videotaped and closed-circuit testimony far less often.95 This Section only examines
differences in state statutes on out-of-court statements, not the requirements of videotaped or
closed-circuit television testimony, which are areas that call for their own legal analysis. Thirty
states offer statutes on the admissibility of out of court statements in cases involving child
witnesses or victims; these are summarized in Table 4 of the appendix.
Seventeen states96 allow hearsay statements made by the child to be admitted into evidence
in certain types of proceedings when they are accompanied by the child’s testimony, corroborating
evidence, reliability of the hearsay statement, and/or fear that testifying will cause emotional
88There are additional statutes, both state and federal, governing how videotaped testimony is to be properly handled
and recorded. This is a lengthy topic that could support an entire analysis in itself. For purposes of this analysis,
videotaped testimony will only be discussed in terms of out-of-court statements. Supreme Court cases allowing for
the use of alternatives to live testimony can be found in Maryland v. Craig, 497 U.S. 836 (1990), allowing for the use
of closed-circuit television testimony, and Coy v. Iowa, 487 U.S. 1012 (1988), allowing for televised testimony in
child abuse cases.
89 HALL & SALES, supra note 15, at 96.
92Lucy Berliner and Mary Kay Barbieri, The Testimony of the Child Victim of Sexual Assault, 40 J. OF SOC. ISSUES
125, 133 (2010). [hereinafter Berliner & Babieri]. An “excited utterance” is defined in the Federal Rules of Evidence
as “at statement relating to a startling event or condition, made while the declarant was under the stress or excitement
that it caused.” FED. R. EVID. 803( 2).
93HALL & SALES, supra note
15, at 99.
94JOHN E.B. M YERS, LEGAL ISSUES IN CHILD ABUSE AND NEGLECT PRACTICE 295 (2nd ed. 1998).
95Gail S. Goodman et al., Innovations for Child Witnesses: A National Survey, 5 PSYCHOL., PUB. POL’Y, AND L. 255,
268, 270 (1999) [hereinafter Goodman et al.].
96Alabama, children under age twelve (ALA. CODE § 15-25-31 (2015)); Alaska, under age ten (ALASKA STAT. ANN. §
12. 40.110 (West 2015)); Arkansas, under age 10 (ARK. R. EVID., 804); California, under age twelve (CAL. EVID. CODE
§ 1228 (West 2015)); Colorado, under age fifteen (COLO. REV. STAT. ANN. § 13-25-129 (West 2015)); Delaware, under
age eleven (DEL. CODE ANN. tit.
11 § 3513 (West 2015)); Florida, under age sixteen (FLA. STAT. ANN. § 90.803 (West
2015)); Illinois, under age thirteen (725 ILL. COMP. STAT. § 115-10 (West 2015)); Minnesota, under age ten or mentally
impaired (MINN. STAT. ANN. § 595.02 (West 2015)); Mississippi, no age specified (MISS. R. EVID. 803 ( 25)); New
Jersey, under age ten (N.J. R. EVID. 803(C)( 27)); North Dakota, under age twelve (N.D. R. EVID. 803( 24) ); Oklahoma,
under age thirteen (OKLA. STAT. ANN. tit.
12, § 2803.1 (West 2015); Pennsylvania, under age twelve ( 42 PA. STAT.
AND CONS. STAT. ANN. § 5985.1 (West 2015)); South Dakota, under age thirteen or developmentally disabled (SD.
CODIFIED LAWS § 19-19-806.1 (2015)); Texas, under age fourteen (TEX. CODE CRIM. PROC. ANN. ART.
2015)); Vermont, age varies depending on circumstance of trial (VT. R. CRIM. PROC.
26 and R. EVID., 804(a) (West
2015)); and Washington, under age twelve (WASH. REV. CODE ANN. § 9A. 44.120 (West 2015)).