Wednesday, February 02, 2005

Important New Jersey Decisions on Excited Utterances

This week, the New Jersey Supreme Court issued a significant decision, State v. Branch, 2005 WL 221198, and a companion decision, State v. Cotto, 2005 WL235918 (corrected version), on the excited utterance exception. I haven't had time yet to post a report of these decisions, but Brooks Holland has done it (for which I thank him), by posting a comment on the blog that you can find by clicking here. As Brooks explains, the court restricts the exception, drawing it back closer to its original dimensions. Although Branch formally decides only the bounds of the evidentiary rule, the analysis is explicitly "informed by the principles undergirding the Confrontation Clause jurisprudence of our federal and state constitutions." These decisions are, in my view, a positive development of considerable significance. It might have been better had the court relied on constitutional grounds. It might then have been harder for courts in other jurisdictions to shrug the New Jersey decisions aside. And when confrontation rights are not at stake, I think a receptive attitude towards hearsay is generally preferable, so it is something of a shame to confine an exception that may be useful in civil cases, no matter how far it has departed from its historical roots. But this is a quibble. The basic analysis of the New Jersey Supreme Court seems right to me, and I hope other courts pay attention.

1 comment:

Andrew C. Fine said...

Another important decision came down today from the Maryland Court of Appeals, the state's highest court. The court affirmed the decision of the intermediate appellate court holding that statements made by child abuse victims to a social worker, who was interviewing the children at the request of and in the presence of police, were testimonial under Crawford. State v. Snowden, 2005 WL 275752 (decided 2/7/05), aff'g 846 A.2d 36 (Md. App. 2004). The statements had been admitted under a Maryland "tender years" statute permitting a social-work professional's testimony to substitute for that of a child victim upon a finding that the victim's statement was trustworthy. [The court did not hold the "tender years" statute unconstitutional in toto, suggesting that a child's statement to a health care professional may not be testimonial if the recipient is not a government employee, at least if the child's information is volunteered.]

Perhaps most significantly, the court determined that with respect to "police interrogation," the proper standard to determine whether a statement is testimonial is the test advocated by Prof. Friedman, "whether the statements were made under circumstances that would lead an objective declarant reasonably to believe that the statement would be available for use at a later trial." [Analytically, the court probably erred by evaluating statements made during police interrogation as a separate category, rather than adopting a uniform test for all statements; I'm interested to see whether Prof. Friedman agrees with this.]

In holding that the children's statements were testimonial under this standard, the court determined that "an ordinary person in the position of any of the declarants" would have anticipated that her statements would have been used to prosecute Snowden, stressing that the interview was initiated and conducted as part of a formal law-enforcement investigation. It determined that the social worker was acting as an agent of police for Confrontation Clause purposes, since she conducted the interview at the behest of police. In the alternative, it held that even if her responsibility was simply to assess the children's safety, the presence of a police detective during the interviews, and the children's awareness of his presence, controlled.

The court rejected the argument advanced in a prosecution amicus brief that a young child's statements should rarely if ever be considered testimonial because of her limited cognitive and developmental skills. It relied on the childrens' ability in this case to give a full and complete account of their experiences with the defendant. However, it also noted that other courts had found statements made by children as young as three years old to be testimonial, and stated more broadly that the "concern for the testimonial capacity of young children overlooks the fundamental principles underlying the Confrontation Clause. Even though there are sound policy reasons for limiting a child victim's exposure to a potentially traumatizing courtroom experience, we nonetheless must be faithful to the Constitution's deep concern for the fundamental rights of the accused."