Monday, February 07, 2005

Maryland's Highest Court on "Tender Years" Statements

The Maryland Court of Appeals today issued its decision in State v. Snowden, affirming the decision of the Court of Special Appeals, which had held shortly after Crawford that the trial court erred by admitting statements made by alleged child abuse victims to an investigating social worker. The Court of Appeals posed the question of the case to be "whether statements made by child abuse victims to a social worker, though hearsay, may continue to be admitted at a criminal trial through the social worker under Maryland's 'tender years' statute, Md. Code (2001), § 11-304 of the Criminal Procedure Article, in light of the U.S. Supreme Court's ruling in Crawford." And the Court of Appeals held squarely "that they may not." But in fact the opinion appears to rest on narrower grounds. The court emphasized that charges had already been filed by the time of the interview; that the social work agency was cooperatiing with the police; that, though the interview had a therapeutic component, it was held for the expressed purpose of developing evidence for trial (the trial court so found, apparently believing pre-Crawford that this was a factor favoring admissibility); and that the girls (who were eight and ten at the time of the incident) understood this. The court also properly rejected the contention of the American Prosecutors Research Institute that these children were too young to be deemed witnesses for Confrontation Clause purposes. This was an easy case -- the court was unanimous -- and the unfortunate aspect of the opinion is that other courts might read it to mean that, absent any of the factors emphasized by the court here, a statement should not be considered testimonial. Indeed, the opinion contains what may be a casual and backhand suggestion that the statement would not have been testimonial has the social worker had been privately employed.

There was also a question of whether the defendant had waived the confrontation right, because the girls were actually in the courthouse and the defendant never explicilty demanded that the state put them on the witness stand. But as the court said, the defendant objected to the evidence that the state did present; it was not his role to present alternatives. He made the confrontation objection very clear, and if the state had been willing and able it could have offered to put the girls on the stand.


Anonymous said...

From Fred Moss:

I haven't read the actual opinion yet, but if the Snowden court held that when the prosecution makes the declarants available to be called by the defense and the defense refuses to call them, this was not a waiver of the 6th, then Snowden could be a very influential case. I've heard that many prosecution offices are using this tactic, especially in domestic violence cases, in an attempt to circumvent Crawford.

I'm not sure this ploy should work, but, imagine, if you will, that the king made Cobham available to be called by Raleigh? Where's the confrontation problem?


Paul Vinegrad said...

It seems to me the Snowden court could have simply held that the statements in question were testimonial BECAUSE (1) they were elicited during "interrogation" (i.e. knowingly given in response to structured questioning (See Crawford, 124 S.Ct. at 1365, fn. 4.)), (2) by a government officer performing a police-like investigative and prosecutorial function.

Snowden contains a lot of language that simply muddies up what should have been a relatively clean extension of Crawford from "police" interrogation to interrogation by non-police governmental officers who are involved in the production of evidence with an eye towards criminal prosecution.

Brooks said...

I agree with Fred Moss that the 6th Amendment waiver issue perhaps may prove the most interesting aspect of Snowden, although I as well need to read the decision in more detail. Would love to read thoughts on this subject, as I certainly have heard of DAs contemplating the strategy Fred Moss has seen in play. While I intuitively find this strategy a backhanded effort at burden-shifting, I have found some difficulty articulating why it does not satisfy Crawford’s opportunity to cross-examine requirement. As one judge commented to me a while ago, Crawford doesn’t seem to require that a direct examination set the stage for an opportunity to cross-examine.

Also, I wondered whether anyone has a take to offer on another recent decision, In re EH, 2005 WL 195376 (Ill. Ct. App., Jan. 28, 2005)? In EH, two minor victims of an alleged sexual assault by EH, also a minor, told their grandmother all about the assault. At EH's trial, one of the minor victims did not testify and the grandmother testified to that child’s account instead, which the trial court allowed under a statute permitting hearsay statements of an unavailable child witness describing physical or sexual abuse. On appeal, the court found admission of the grandmother’s testimony a violation of Crawford, notwithstanding the apparent absence of any governmental role in producing the statements to the grandmother. The court relied in part on Wigmore's evidence treatise to define "testimonial evidence," as well as the its recent decision In re TT, 351 Ill.App.3d 976 (2004), and concluded: “[T]he out-of-court statements of [the minor victim] … were statements concerning the fault and identity of EH and these ‘accusatory statements’ invoke the protection of the confrontation clause. We believe it is the nature of the testimony rather than the official or unofficial nature of the person testifying that determines the applicability of Crawford and the confrontation clause … In fact, it is our opinion that the declarant’s state of mind is hardly a consideration when determining whether there has been a confrontation violation.” According to this court, "[t]he admission of the accuser's out-of-court testimony by permitting another witness, the grandmother, to testify for the accuser, is exactly what the Framers of the Constitution were endeavoring to prohibit with the sixth amendment."

This ruling seems consistent with the position Rich Friedman has taken, although the court appeared to rest its decision that the statements proved testimonial on a different rationale by focusing not on the reasonable expectations of the declarant or an “objective witness” in making the statements to the private party, but instead solely on “the nature of the testimony.” Rich, would you view the statements here as testimonial as well, and if so, for the same reasons or under a different analysis?

This decision strikes me as one of the broadest applications of Crawford I’ve seen. Needless to say, it generated a lively dissent.

Anonymous said...

From Jennifer Lyman, Professor of Clinical law at George Washington University Law School, and assigned Public Defender reprresenting Mr. Snowden in the Maryland Court App. (Ed Griffin, then a 3rd year law student, represented Mr. S. under my supervision in the intermediate court of appeals):

Factual tweaks on Professor Friedman's account: charges had not yet been filed against Snowden when the social worker interviewed the complainants; a police report had been filed, and the police filed charges right after the interviews.

The Court recounted a lot of specific facts favoring the "testimonial" holding, because they were there, but recognized a broader reach for the category. For example, on the issue of therapeutic purpose to the interview, the Court said "No matter what other motives exist, if a statement is made under such circumstances that would lead an objective person to believe [they would later be used at trial]. . . " they are testimonial. The Court rejected the State's idea that the determination depends on a reasonable child's likely view.

On waiver, the Court clearly rejected the State's suggestion of burden shifting: "The State's reliance, however, on Snowden's failure to insist that the State place the children on the stand ignores the fundamental principle of the State's threshold burden to produce a prima facie case of the defendant's guilt. In a criminal trial, the State is required to place the defendant's accusers on the stand. . . " (citing Coy)

We had argued strenuously for that position in our brief.

Incidentally, the trial court had found the interviews occured for "the expressed purpose" of creating the social worker's testimony but NOT as a factor favoring reliability under Robers; he was concerned about their lack of "spontanaity" under the statutory criteria for reliability.

Brooks said...

Postscript to the comment/post about In re EH:

An interesting Crawford debate seems to have emerged in the 1st District of the Illinois Court of Appeals. On February 10, 2005, a 1st District panel in People v. RF, 2005 WL 323718, addressed a similar issue to EH, also a 1st District decision, but reached the opposite conclusion. In RF, a father was convicted of sexually abusing his daughter. The daughter reported the abuse to her mother and grandmother, and later to a police investigator after the mother reported the crime. The daughter was deemed unavailable by the trial court, and the mother and police investigator testified to her accusatory statements (it’s a little unclear whether the grandmother testified, but apparently not). On appeal, the majority in RF held that “Crawford applies only to statements made to governmental officials; Crawford does not apply to statements made to nongovernmental personnel, such as family members or physicians.” The court thus found the statements to the mother and grandmother non-testimonial. (The statements to the police investigator were deemed testimonial but harmless).

The two-judge majority in RF did not participate in the EH panel, and strangely did not discuss that decision at all. By contrast, the dissenting judge in RF authored the majority opinion EH—there landing the concurrence of the presiding justice of that panel—and relied heavily on EH in dissent to argue: “[W]hen determining whether extra-judicial statements are testimonial and subject to the confrontation clause, the focus should be on the ‘nature of the testimony’ and whether it implicates the defendant in a crime and not on ‘the official or unofficial nature’ of the person whom the State wants to testify to the declarant’s extra-judicial statements.” And here, this judge explained, “the three year old minor bore accusatory testimony because her extra-judicial statements were offered in court by her mother and the investigator to prove the truth of the matter asserted, that her father sexually assaulted her.”

Interestingly, the dissenting judge in RF, in both that dissenting opinion in the majority opinion in EH, frequently cited to In re TT, 351 Ill.App.3d 976 (Ill. Ct. App. 2004), another Crawford decision from the 1st District. Yet, the judge who concurred in the majority opinion in RF concurred in the majority opinion in TT. Go figure.

Andrew C. Fine said...

Another decision holding that the defense does not waive a Crawford claim by failing to call an available declarant not produced by the prosecution is Bratton v. State, 2005 WL 459010 (Tex. App.-Dallas, decided 2/28/05).