Cross-examining children is a potential minefield because the cross-examiner must tread with care yet with a deliberate aim, all while maneuvering across a field that is unfairly stacked against the defense. Andres R. Guevara discusses the pitfalls and offers strategies for the successful cross-examination of a child.

Amicus curiae brief of the National Association of Criminal Defense Lawyers, the Pennsylvania Association of Criminal Defense Lawyers, and the Public Defender Association of Pennsylvania supporting grant of the petition for certiorari.

Argument: Petitioner was convicted in state court of simple assault and endangering the welfare of a child; state supreme court held that a statement by the infant’s four-year-old sister to a county children’s and youth services investigator that petitioner injured the infant’s arm was “nontestimonial” and admissible without violating the Sixth Amendment Confrontation Clause. Statements elicited by government child advocacy investigators are forensic in nature and therefore testimonial, although there is a split in authority on this question.

NACDL amicus curiae brief in support of certiorari.

Argument: Brief argues that since convictions for child rape often rest solely on the testimony of children, and that research explains that child testimony is frequently unreliable, the risk of innocent persons receiving the death penalty is unacceptable; the Court has consistently held that the Eighth Amendment demands heightened reliability in capital cases.