Lyon Thomas D, Dente Julia A
Thomas D. Lyon, J.D., Ph.D. is the Judge Edward J. and Ruey L. Guirado Chair in Law and Psychology at the University of Southern California Gould School of Law. Julia A. Dente is an attorney in the Commercial Litigation Department in-house at Southern California Edison.
J Crim Law Criminol. 2012;102(4):1181-1232.
Crawford v. Washington that a criminal defendant's right to confront the witnesses against him is violated by the admission of testimonial hearsay that has not been cross-examined, lower courts have overturned convictions in which hearsay from children was admitted after child witnesses were either unwilling or unable to testify. A review of social scientific evidence regarding the dynamics of child sexual abuse suggests a means for facilitating the fair receipt of children's evidence. Courts should hold that defendants have forfeited their confrontation rights if they exploited a child's vulnerabilities such that they could reasonably anticipate that the child would be unavailable to testify. Exploitation includes choosing victims on the basis of their filial dependency, their vulnerability, or their immaturity, as well as taking actions that create or accentuate those vulnerabilities.
在克劳福德诉华盛顿案中，刑事被告面对不利于他的证人的权利因采纳未经交叉询问的传闻证据而受到侵犯，下级法院推翻了一些定罪，在这些定罪中，儿童证人要么不愿意作证，要么无法作证，随后采纳了儿童的传闻证据。对有关儿童性虐待动态的社会科学证据的审查提出了一种促进公正采信儿童证据的方法。法院应认定，如果被告利用儿童的脆弱性，以至于他们能够合理预期该儿童无法出庭作证，那么被告就丧失了他们的质证权。利用包括基于儿童的孝顺依赖、脆弱性或不成熟性选择受害者，以及采取行动制造或加剧这些脆弱性。
