22 Children’s Legal Rights Journal [Vol. 36: 1 2016]
process have a higher likelihood of depression251 and a lengthier recovery time.252 Below is the
second suggested component for updated legislation:
In cases in which a child, under the age of 18, is the victim of a crime or is
compelled to testify in proceedings, the court will give priority to reduce the length
of time and increased stress inflicted upon the child by the court proceedings. All
motions for continuance or other requests for delay will take into consideration the
age and mental well-being of the child involved in the case, more so in cases of
child abuse or neglect.
Consideration should be given to the use of vertical prosecution. This practice is already
used in many jurisdictions, and involves the same prosecutor following the case throughout the
entire legal process.253 Vertical prosecution increases rapport with the child victim or witness and
can also decrease trial time by eliminating the need for different prosecutors to familiarize
themselves with case details at different steps of the process. Federal legislation and the majority
of states now have statutes recommending court preference to these cases, while the remaining
states have general speedy-trial statutes.
C. Out-of-Court Statements
Admitting out-of-court statements as evidence is a more difficult issue to address because
of constitutional protections for the accused. Generally, attempts by prosecutors to protect a victim
from seeing the defendant during trial have been rejected by the courts.254 Federal code mandates
that victims and witnesses must testify in the presence of the defendant.255 When a prosecutor can
successfully argue necessity, the court may use its discretion to modify the courtroom to avoid the
child directly facing the defendant.256 Additionally, the Federal Rules of Evidence allow the
admission of hearsay or out-of-court of statements under a series of broad conditions, even when
the victim is not available to testify during trial.257
For reasons of complication and specificity, no suggested policy will be made for this area;
the issue of out-of-court statements is best handled by federal statute 18 U.S. Code §3509 regarding
child victims’ and child witnesses’ rights. Under this code, out-of-court statements may be
admitted, without the child testifying during trial, when testifying could cause severe emotional
trauma, the child has a developmental disability, or the defense acts in a way that prevents the
child from testifying.258
This analysis does not discuss the use of videotaped or closed-circuit testimony, as it
involves lengthy and complicated rules that are affected by the Sixth Amendment. Child witnesses
251Saywitz et al., supra note 4, at 360.
252HALL & SALES, supra note 15, at 29.
253Id. at 30.
254Coy v. Iowa, 487 U.S. 1012, 1014 (1988). This case was abrogated by Maryland v. Craig,110 S.Ct. 3157 (1990,) in
which the court held that the Confrontation Clause did not guarantee and absolute right of a defendant to physically
face his accuser. Id. at 3163. As to be determined on a case-by-case basis, the witness is allowed to testify via a closed-circuit television if the child will suffer severe emotional harm by being in the presence of the defendant. Id. at 3169.
255FED. R. EVID.
256 HALL & SALES, supra note 15, at 54.
257FED. R. EVID. 803.
25818 U.S.C. § 3509 (2012).