Competency and the Residual Hearsay Exception

I previously wrote (here) about the U.S. Supreme Court’s recent cert grant in Ohio v. Clark, a case in which the Court will decide whether a three-year-old child’s statements to his preschool teachers are testimonial. Hiding in plain sight in that case is an issue as interesting as the Crawford question that the Court will decide. In Clark, the Ohio Supreme Court held that the child’s statements to his teachers identifying the defendant as the perpetrator were testimonial. It further held that the trial court violated the defendant’s confrontation clause rights when it admitted the child’s out of court statements to his teachers at trial, after finding the child—L.P. —incompetent to testify. L.P. was found to be incompetent six months after uttering the statements at issue.

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Proposed Ethics Opinion about Interviewing Child Witnesses

Last month, the State Bar issued a proposed ethics opinion regarding contact between prosecutors and defense lawyers, on the one hand, and children who are prosecuting witnesses in criminal cases involving allegations of physical or sexual abuse, on the other.  The proposed opinion, which is available here, concludes that a lawyer “may not interview a … Read more