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.
2 comments:
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?
Fred
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.
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