Courtney S. Bedell
ABSTRACT
Congress has enacted legislation delineating the rights of child victims and witnesses during formal trials. In limiting its protections to this context, however, Congress ignores the reality that much of the child testimony upon which the legal system relies takes place outside of court during the pre-trial stages of an investigation. Further, Congress has failed to consider the growing numbers of children who are diagnosed with developmental disabilities and the issues that arise when these children are victims or witnesses of crime.
The federal approach to these issues currently consists of a mishmash of standards that vary from circuit to circuit. This Comment argues that, to reduce this unpredictability and inconsistency, Congress should adopt a clear federal standard to evaluate the sufficiency of child testimony to establish probable cause for search and arrest warrants. Such a standard would also balance the vulnerability of child victims, including those with developmental disabilities, against the constitutional protections afforded to criminal defendants. The proposed legislation consists of three major elements: (1) a flexible factor test to determine the sufficiency of the child’s testimony; (2) a provision eliminating corroboration requirements; and (3) an exception from the rule against hearsay. Justice is not served by discounting the testimony of victims merely due to youth or disability, and a concise federal standard would ensure that the federal system adequately serves these vulnerable victims.
preferred citation: Courtney S. Bedell, Vulnerable Victims: Guaranteeing Procedural Protections to Child and Developmentally Disabled Victims in Establishing Probable Cause for Search and Arrest Warrants, 118 Penn St. L. Rev. 729 (2014).