Child saying no

Should Hearsay Statements of Child Abuse be Admissible?

The Hearsay Rule

Why aren’t hearsay statements admissible in court? The prohibition against hearsay statements originated from English courts and have since been codified by federal and state statutes. In general, statements made outside of the courtroom are inadmissible if used to prove the truth of the matter asserted.

For example, an out of-court confession to a crime generally qualifies as hearsay if offered to prove that the defendant committed the crime. A police report of an eyewitness alleging that the defendant ran a red light is considered hearsay if offered to prove that the defendant, in fact, ran the red light. Unless the witnesses who made those statements are available to testify in court, their prior out-of-court allegations are barred from evidence. Thus, both the eyewitness and the police officer who recorded the witness’ statement must be available to testify in court about their prior statements in order to be included as evidence at trial.

One of the primary thrusts behind the hearsay rule is to bar past allegations from witnesses who aren’t available to answer questions about their claims. Under fundamental principles of fairness, the parties should have an opportunity to question witnesses about their allegations in front of the jury and possibly call their credibility into question.

However, there are some exceptions to the hearsay rule. Courts have held that certain hearsay statements have a degree of credibility as to make them fundamentally trustworthy. For instance, if a witness testified to hearing the victim of a car crash cry “it hurts so bad” after the accident, it may be admitted as evidence even if used to prove that the now incapacitated victim was in severe pain at the time of the collision.

The Hue and Cry Rule

Historically, English courts recognized an exception to the hearsay rule for the immediate outcries of an assault or rape victim “calling for the pursuit of a felon.” Traditionally, the successful prosecution of a felony required the victim to alert the community about the crime.

Over time, this requirement faded away for felony prosecutions, but courts continued to require some form of prompt outcry from the victim in assault and rape cases. For example, many jurisdictions held that a victim’s failure to promptly alert someone about an attack could be used as evidence to diminish their credibility at trial. This rule was extended to cases of child abuse as well. Therefore, victims of assault or sexual abuse endangered the chances of convicting their aggressors if they didn’t promptly alert someone about their attack.

Current Exceptions for Child Abuse Statements

Many jurisdictions have done away with a prompt outcry requirement for statements concerning abuse made by a minor child. This development reflects a growing social understanding that many abused children may not tell anyone about their abuse because they either don’t understand what happened to them, blame themselves, or are otherwise deterred from alerting someone about the crime.

For example, California’s evidence rules recognize a hearsay exception for “Statements by Minors in [a] Criminal Proceeding of Child Abuse or Neglect” as long as the court determines there is an “indicia of reliability” based on other corroborating evidence.

However, some jurisdictions—including New York—still do not recognize an exception to the hearsay rule for a child’s out-of-court statements regarding abuse. However, New York courts have admitted out-of-court statements of abuse from a minor child only if those statements were relevant to a doctor’s medical diagnosis.


The crux of this issue involves the fear that false accusations would lead to the conviction of innocent people. This suggests a fundamental distrust of victims and juries. For the most part, the law entrusts juries to determine the credibility of witnesses. By not recognizing an exception to the hearsay rule, the state is signaling to people that a children’s statements of abuse generally lack an “indicia of reliability.”

The Law Office of Tzvi Y. Hagler Is Committed to Protecting Your Family’s Interests

Family law cases can involve emotionally charged issues, such as the prevention of child abuse. If you are looking for judicial methods of ensuring the general safety and welfare of your child in a family law dispute, you should seek legal representation from an experienced attorney at the Law Office of Tzvi Y. Hagler. We are dedicated to helping you find the appropriate legal measures to protect and preserve you and your child’s welfare and legal rights.

Call our office at (516) 514-3868 or contact us online to schedule a consultation with a member of our legal team to explore your legal rights and options today.