Bloomber BNA quotes Professor Jeffrey Fisher on whether or not hearsay testimony from children about abuse is admissible in court. 

Questions Presented: Does an individual's obligation to report suspected child abuse to authorities make that person an agent of law enforcement for purposes of the Sixth Amendment's confrontation clause? Do a child's out-of-court statements to a teacher in response to the teacher's concerns about potential child abuse qualify as “testimonial” statements subject to the confrontation clause?

Potential Impact: Could resolve how crimes involving child victims will be prosecuted in the future.

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Professor Jeffrey L. Fisher, of the Stanford Law School Supreme Court Litigation Clinic in Stanford, Calif., appeared for the defendant. He maintained that the system Ohio has in place is—contrary to the prosecutors' arguments—precisely the type of scheme targeted by the confrontation clause: a system designed to create hearsay statements for use as a substitute for live testimony in later proceedings.

Fisher noted that Ohio has (1) a statute that makes children incompetent to testify, (2) a hearsay rule under which the out-of-court statements of these children are admissible without any opportunity for cross-examination, and (3) a reporting system in which teachers and other adults are directed to elicit these confrontation-proof statements from children for later trials.

“All we are asking for is that a state not be allowed to have it both ways,” Fisher said. A state shouldn't be allowed to prohibit an accused from cross-examining a child on the ground that the child's statements in court are unreliable, and at the same time allow prosecutors to automatically present that child's identical statements in court, Fisher argued.

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Kennedy asked about this possibility at oral argument, and Fisher responded that it would be a better system than the one that Ohio has in place.