Child Hearsay Statute in Georgia

The Sixth Amendment to the U.S. Constitution ensures that the accused has a right to confront witnesses against him or her. However, under O.C.G.A. §  28-8-820, statements made by a child under 16 years of age describing any sexual conduct will be admissible as an exception to the general rule prohibiting hearsay at trial. This is known as the child hearsay exception, and courts have upheld this statute through the years and do not believe it to violate the Sixth Amendment. The reasoning behind this statute is the State's interest in protecting children and the recognition that child witnesses are generally not as cooperative as adult witnesses.

What is Hearsay?

Under O.C.G.A. § 24-8-801(c) hearsay is any statement other than one made by the declarant while testifying in the trial or hearing offered to prove the truth of the matter asserted. In other words, hearsay is information heard secondhand. In most cases, hearsay is not allowed as evidence in court because it cannot be verified. People can testify about what they witnessed firsthand but are not allowed to testify about what someone else witnessed. The purpose of the hearsay laws is to present the best possible testimony based on facts and not secondhand accounts.

Child Hearsay Statute O.C.G.A. § 24-8-820

A statement made by a child younger than 16 years of age describing any act of sexual contact or physical abuse performed with or on such child by another or with or on another in the presence of such child shall be admissible in evidence by the testimony of the person to whom made if the proponent of such statement provides notice to the adverse party prior to trial of the intention to use such out-of-court statement and such child testifies at the trial, unless the adverse party forfeits or waives such child's testimony as provided in this title, and, at the time of the testimony regarding the out-of-court statements, the person to whom the child made such statement is subject to cross-examination regarding the out-of-court statements.

In sum, statements that a child made to a person can be admitted into court by the person to whom the statements were made if:

1. Notice is provided to the opposing party before trial of the intention to use such statements
2. The child testifies at the trial, unless the defendant forfeits or waives their testimony
3. The person to whom the statements were made is subject to cross-examination.
   
   

Georgia Case Law

Prior to 2013, Georgia code O.C.G.A. § 24-3-16 contained language stating that a statement made by a child under the age of 14 describing any act of sexual conduct… is admissible in evidence by the testimony of the person or person to whom made if the child is available to testify and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

However, this language was replaced with the current statute in 2013. The two notable changes were the increase in a child's age to 16 and the removal of the requirement that the statements “provide sufficient indicia of reliability.” The elimination of this requirement means that the statements are now admissible without regard to the interview techniques, or other facts affecting the reliability of the child's statements.

The case of Whorton v. State expands upon this change. In Whorton, the Court found that there is no requirement in the child-hearsay statute that the court conduct a hearing to determine the admissibility of the child's statement describing an act of sexual contact with or on the child by another prior to receiving the relevant testimony. Additionally, there is no requirement that the trial court make a specific finding of sufficient indicia of reliability in order for the out-of-court statements of child victims to be admissible. Instead, the statutory requirement that the circumstances indicate that the statements contain a sufficient indicia of reliability is met if, after both parties have rested, the record contains evidence which would support such a finding. 321 Ga. App. 335, (2013).

Defending Against Child Hearsay Statements

At trial, the State can introduce child hearsay statements through testimony of physicians, investigators, family members, forensic interviewers, and others who had dealings with the child during the investigation. There are numerous people that can testify to the child statements, and that is just one of the reasons why it is important to build a strong defense. At Lawson and Berry, we counter these witnesses with experts who can refute their claims. We have our own team of experts that will review the interviews and evidence to determine whether the child's statements were actually consistent with a child who has been abused. We understand the delicate nature of the situation and have seen firsthand people wrongfully accused of sex crimes.

Contact Us Today

If you have been charged with a sex crime with a child involved, you need representation immediately. The additional testimony that can be admitted under the child hearsay statute must be thoroughly investigated, and we need time to refute their claims. It is critical to remember that a charge is not a conviction. There are defenses available to you! We understand that your future is on the line and we want to help protect your rights and freedom. Call now for a free case evaluation.