As a video interview typically occurs out of court, the assertions of fact within a video interview are often hearsay. Testimony in criminal cases is generally given by live witnesses in court proceedings. However, there are exceptions, under the rules of evidence and by statute, under which a video interview may be played for a jury in a criminal case. In 2009, the Tennessee State Legislature enacted a statute allowing for the admissibility of forensic interviews of children under age thirteen in criminal trials where the defendant is charged with sexual abuse of the child. The recent Tennessee Court of Criminal Appeals opinion in State v. McKaughan, W2013-00676-CCA-R3-CD (Tenn.Crim.App. 6-2-2014) has affirmed the constitutionality of this statute.
The Tennessee statute in question still requires that the child victim testify in court and be subject to cross examination. So it does not violate the accused person's right to confront witnesses. For the video to be admissible, the child must testify that it is a true and correct depiction of what occurred during the interview, and the trial judge must first view the video and find that it is reliable and trustworthy and that the interview was conducted by a qualified forensic interviewer.
In the McKaughan case, the Defendant challenged the constitutionality of the statute, arguing that it was in conflict with existing law and violates separation of powers, intruding on the role of the judiciary to determine evidentiary rules to be used in court proceedings. The Court of Criminal Appeals disagreed, noting that the statute is supplementary to existing rules of evidence, and that it is permissible for the legislature to enact reasonable rules which fit within the framework adopted by the judiciary. The statute still leaves the decision to admit such a video interview within the discretion of the trial judge.
For more information on the admissibility of evidence in a criminal trial, contact Hindman & Associates.