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Hearsay exception for children is constitutional

A statute that allows introduction of a child’s out-of-court statements in certain cases applied to appellant’s case and did not violate his Sixth Amendment right to confront witnesses.


Appellant was charged with multiple sex crimes. Pursuant to Code § 19.2-268.3, the commonwealth provided notice that it would offer oral and written statements made by the victim, A.B., during forensic interviews at a children’s hospital.

The statute provides “a hearsay exception for certain out-of-court statements made by children, provided that: (1) the totality of the circumstances surrounding the statements provide sufficient indicia of reliability to render the statements inherently trustworthy; and (2) the child testifies or is declared unavailable to testify.”

The commonwealth asserted, and the trial court ruled, that A.B.’s out-of-court statements were admissible because the statutory conditions were met. Appellant argued that the statute violated his Sixth Amendment right to confront witnesses. “[T]he trial court held that the statute was not ‘unconstitutional on its face’ because the victim would testify at trial and would be available for cross-examination.

The parties reached a plea agreement. Appellant pleaded guilty to some of the charges. The parties stipulated that the evidence would show that during a four-month period, appellant sexually assaulted A.B., his girlfriend’s younger sister. They also stipulated that A.B. would have testified at trial.

Constitutional statute

On appeal, appellant renews his argument that Code § 19.2-268.3, as applied to him, violates his confrontation right. He argues “that the statute is unconstitutional regardless of whether or not the child testifies.” A review of Sixth Amendment principles shows that his argument lacks merit.

“The Confrontation Clause guarantees that a criminal defendant will have the opportunity ‘to be confronted with the witnesses against him.’ … The protections afforded by the Confrontation Clause, however, are not absolute.

“The United States Supreme Court has made clear that the Confrontation Clause applies only to ‘testimonial’ statements. See Crawford v. Washington, 541 U.S. 36, 68-69 (2004)[.] … Thus, a witness’ out-of-court testimonial statement against a defendant is inadmissible ‘unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination.’ … [W]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.’ …

“In this case, pursuant to Code § 19.2-268.3, the Commonwealth sought to admit out-of-court oral and written statements made by A.B. during forensic interviews. Both parties stipulated that the child would have testified at trial if appellant had not entered a conditional guilty plea. Therefore, Code § 19.2-268.3, as applied to appellant, would not have violated his Confrontation Clause right, as the declarant of the out-of-court statements would have been present at trial and subject to cross-examination.”


Marsh v. Commonwealth, Record No. 1011-18-1, Oct. 15, 2019. CAV (Malveaux) from Virginia Beach Cir. Ct. (Croshaw). Richard C. Clark for appellant, Kelsey M. Bulger for appellee. VLW 019-7-176, 7 pp. Unpublished.

VLW 019-7-176

Virginia Lawyers Weekly