The Georgia Supreme Court, in a unanimous decision, held that Georgia’s Child Hearsay Statute (O.C.G.A. § 24-3-16) does not comply with the requirements of the Confrontation Clause. Hatley v. State, S11A1617.
Hatley was convicted of aggravated child molestation, aggravated sodomy and sexual battery based on acts committed against a three year-old victim. On appeal Hatley challenged the constitutionality of the Child Hearsay Statute. The Child Hearsay Statute all provides as follows:
“A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.”
The Court declared the statute unconstitutional because it fails to put the burden on the prosecution to put the child victim on the witness stand to confront the defendant. The Court further held that the Confrontation Clause concerns could be satisfied by the prosecution giving reasonable pretrial notice of its intent to use child hearsay statements during trial, thus giving the defendant an opportunity to object on Confrontation Clause grounds. If the defendant objects on Confrontation Clause grounds the State must present the child victim at trial. If the defense fails to object the State can introduce the statement subject to the judge determining that the circumstances of the statement provide sufficient indicia of reliability. The judge should take reasonable steps to determine if the defendant is waiving any Confrontation Clause objection.
The Court determined that the Confrontation Clause violation in the case was harmless because it was cumulative of other admissible evidence and because of the overwhelming evidence of guilt. Vaughn v. State, 248 Ga. 127 (1981).