A Feb. 6 decision by the Georgia Supreme Court that changes procedure for putting children on the witness stand is already being argued in Superior Court.
Justices affirmed the 2010 conviction of Johnny Hatley on child molestation charges, but agreed with Hatley’s argument that he has a constitutional right to confront his witnesses. In this case, it was a 3-year-old girl who said Hatley committed sex acts with her.
Georgia’s Child Hearsay Statute allows the recorded interview of a child or the testimony of forensic investigators as trial evidence to avoid putting a small child on the witness stand and subjecting her to cross-examination. Past cases further clarify the evidentiary rules, but the Hatley case says the state has to produce the child witness at trial.
It does not, however, specifically say whether the child has to testify, and that point came up Monday in Superior Court during a Jackson-Denno hearing in the case of David Powell. A Richmond County indictment accuses Powell of two counts of child molestation. The hearing was to decide whether statements Powell made to sheriff’s investigators could be used during trial, but it also addressed the child’s testimony.
Assistant District Attorney Parks White filed notice Feb. 21 that he intended to use child hearsay, pursuant to Georgia law and under the new Hatley case law. He said in court Monday that gives the defense a reasonable period of time to prepare and make an objection under the Confrontation Clause. That clause, part of the Sixth Amendment to the U.S. Constitution, says anyone accused of a crime “shall enjoy the right ... to be confronted with the witnesses against him.”
But Assistant Public Defender Lyndsey Hix said just bringing the child witness to court as required and playing the recorded tape is no longer sufficient. If the old procedure is followed, then Hatley “would essentially be a meaningless ruling,” Hix said.
“We follow that under the Sixth Amendment confrontation clause, (the child) should be presented as any other witness,” Hix said.
Superior Court Judge James Blanchard did not make a ruling Monday.