Thursday, May 22, 2008

The Court Report
By Richard Blassberg

Senate Measure Allows Use Of
Hearsay Evidence From Sexually Abused Minors
Measure Helps Children Talk About Alleged Abuse

Press Release

ALBANY, NY – May 13, 2008 – Senate Democratic Leader Malcolm A. Smith (D – St. Albans) sponsored a bill (S. 4390) that was unanimously passed by the Senate aimed at allowing the out-of-court testimony from a child less than 12 years of age to be admissible during a sex abuse trial.

“We must protect those who cannot protect themselves and this measure is geared towards that result,” Senator Smith said. “Children are the most precious parts of our family. We must protect children from being abused and neglected while providing a stable home environment. But when the system fails we must provide these children with a safe and secure setting that is essential to their healing, success and recovery.”

Under the measure, the testimony would only be admissible if the sexually abused child:

• is unable to testify in court or an official court proceeding;


• has been determined to suffer possible severe trauma by testifying;


• when the testimony of an individual is relevant to the case in question.

Senator Smith has been a longtime proponent of protecting children. Two other measures he is sponsoring are aimed at increasing penalties for crimes against children.

Analysis:

With regard to New York State Senate Bill (S. 4390), unanimously passed by the Senate and “aimed at allowing the out-of-court testimony
from a child less than 12 years of age to be admissible during a sex abuse trial,” one must realize that even the most rightly intentioned measure that would permit the avoidance of compliance with long-held legal principles, must be carefully considered and weighed against alternatives when liberty interests hang in the balance.

In a perfect world, where children are not manipulated and enlisted by feuding parents engaged in matrimonial litigation, often involving
issues of custody and support; or by deceitful and over-reaching prosecutors in criminal matters, the lowering of long-recognized legal
principles and standards such as the Hearsay Rule, might be of less concern. However, those who labor in the Matrimonial and Criminal Parts of the New York State Supreme Court, know very well how imperfect those arenas are. Attorneys, prosecutors, and law guardians
routinely engage in Perjury and the Subornation Of Perjury, manipulating and abusing the rights of children in State Supreme Court for the
purpose of producing one wrongful outcome or another. Even without the statutory admission of out-of court testimony by infants under
the age of 12 case law is replete with wrongful convictions, particularly involving alleged sexual abuse by caretakers, parental and otherwise,
brought about by false, often coached, testimony of infants both under and over the age of 12.

Absent court appearance, and subjection to cross-examination, there is a much higher probability of unreliable, even maliciously false, testimony from usually well-behaved, generally truthful, children. We must always be especially cautious about any legislation that would, for whatever good purpose, nonetheless, tend to erode our civil liberties, and Constitutional guarantees.