Monday, October 27, 2014

The Child Quasi Witness

Update, March 4, 2015:  The essay to which this post refers is now about to go to the printer; I have been assured by the Chicago Law Review that there will be no further changes.  (I have been told that before, but this time I think it's really true.  There were a few very small changes from the version I posted on February 12, and the page numbers are two lower than in the versions I posted then and later in February; apart from that, the only change from the late-February version is that I corrected an oversight and thanked Sean Stiff for his very valuable research assistance on this project.)  You may find this final pre-publication version here.  The citation to the piece will be Richard D. Friedman and Stephen J. Ceci, The Child Quasi Witness, 82 U. Chi. L. Rev. 89 (2015).  (A hyphen disappeared from the title during the editorial process.)  The passage to which we referred on p. 27 of our amicus brief in Clark is now on pp. 106-108.  I expect final publication within a couple of weeks.  RF


As it happens, Steve Ceci, a noted developmental psychologist at Cornell, and I have drafted an article, to be published in a few months in the University of Chicago Law Review, that uses the Clark case as a touchstone for presenting our basic idea of how to treat statements by very young children that would be testimonial if made by an adult.  You can read the draft as it stands -- we have not yet updated it to take into account the grant of cert on Clark, and there are still a couple of technical glitches that have to be corrected -- here.

One basic point of this essay is that some very young children are so developmentally immature that they should be considered incapable of being witnesses for purposes of the Confrontation Clause.  (At this stage, we are more concerned with establishing this proposition than with defining precisely the set of children that it covers.) Acting as a witness requires understanding of the consequences of one's statements and the gravity of those consequences, and at least some very young children are incapable of this understanding.

On the other hand, such a child is a source of evidence, and potentially very useful evidence.  But the way in which we expect to allow an adversary to challenge testimony -- by cross-examination in open court -- is inappropriate and inadequate when the child is incapable of being a witness at trial.  (And note that the child in Clark was declared incompetent to be a trial witness.)  Instead, the courts should treat the child as they do a non-human source of evidence:  The accused should have a right to examine the child out of court.  This would not be cross-examination by an attorney, but rather examination by a qualified expert (presumably a psychologist), under prescribed guidelines, aimed at assessing the evidentiary quality of the child's statement.

We believe this treatment -- treating the child not as a witness but as a source of evidence as to whom the accused has a right to out-of-court examination -- is the proper one as a matter of principle.  We also think that it  has very significant practical advantages over treating the child as we do an adult, and determining either that the statement is testimonial or that it is not.

    -- There is no loss of valuable evidence, which is crucial for the prosecution.

    -- The accused has a valuable right of examination.  In contrast, if the child is treated in the same way we treat adults, then (a)  if the statement is deemed non-testimonial, the accused has no right of examination at all, and (b) if the statement is deemed testimonial, he can cross-examine the child in court, but cross-examination of young children is a notoriously poor procedure.

   -- The child is spared the trauma of having to testify in open court.  Instead, he or she has an informal conversation with one person in a comfortable room.

And so we think this procedure provides a win-win-win solution.

I anticipate that we will be submitting an amicus brief presenting these views. In Clark the case is simplified somewhat by the fact that the trial court declared the child incompetent to be a trial witness.  Cross-examination in court was therefore impossible.  But if the child's statement is nevertheless introduced, it means that by virtue of the court's own order the accused has no means of examining the source of evidence that may be crucial in convicting him.  The Supreme Court could go far in the direction of implementing our views by holding simply that if the trial court holds that the child is not competent as a child witness it must provide some adequate form of out-of-court examination.  


paul said...

If the very young child is not a "witness" within the meaning of the CC, what provision of the Constitution would provide the
defendant with a right to examine the child before trial?

I have no problem with this proposal. However, I believe that any such right, like any nonconstitutional evidentiary issue, is a matter governed exclusively by respective state constitutions and state and
federal evidence law -- not the federal constitution.

Also, if a very young child is a source of evidence in the same way that a bloodhound (who leads the cops to the defendant carrying the victim's belongings) is a source of evidence, why should a defendant be permitted (by evidence law) to examine the child before trial when, in the case of the bloodhound, he has no such right?

Interesting concept, but absolutely no chance of it being accepted as a matter of federal constitutional law by a single justice.

Anonymous said...

I tend to agree with Paul. Regardless of the merits of the prof's proposal, in order to adopted it, the Court would have to expand a criminal defendant's constitutional right to discovery well beyond Brady. While I could see Ginsburg and, maybe, Sotomayor and Kagan, accepting the idea that a child witness is a unique situation requiring specially tailored procedures to protect a defendant's due process right to a fair trial, I can't imagine any other justice getting on board with that.

Brian S. said...

This is an interesting idea. I like the idea of a right to examination, though I don't know that I'd go the route of saying the child is not a witness within the meaning of the Clause. I need to consider that idea further.

You could argue instead that the Confrontation Clause provides rights other than literal cross-examination. The difficulty, as Paul and Anonymous at 11:27 noted, is that I doubt many of the current justices would get behind that idea.

Richard D. Friedman said...

I'm going to limit my comments on this subject on the blog; I expect to put in an amicus brief making the argument that there is a due process right to have an examination of the sort I am suggesting. I don't think this is novel or adventurous, once one accepts the premise that the child is not capable of being a witness (which the trial court held in Clark) and so should not be treated the way adults are. Numerous cases have spoken of a defendant's constitutional right in some circumstances to examine physical evidence through an expert. A leading case is Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975), which said, "The question is not one of discovery but rather the defendant's right to the means necessary to conduct his defense. . . . Fundamental fairness is violated when a criminal defendant on trial for his liberty is denied the opportunity to have an expert of his choosing, bound by appropriate safeguards imposed by the Court, examine a piece of critical evidence whose nature is subject to varying expert opinion." The child is a physical source of evidence that, in the prosecution's view, responded in a given way to a particular stimulus (told the truth when asked a question about what happened). If the speaker were an adult, the defense's opportunity to test whether that is right would have been cross-examination in open court. That isn't possible, or appropriate, or adequate, in this circumstance. But the defense has to have some ability to examine the child and test the stimulus-response relationship that the prosecution claims.

Anonymous said...

There is no provision in the Constitution for a "quasi-witness". The Confrontation clause speaks of "witness" not a "quasi-witness". So either the child is a witness or they are not--it's binary. If they are not, then the evidence needs to be suppressed. More fundamentally, what bothers me about the Professors post is its implicit assumption that the State has a right to make a case; it doesn't. It has the power to make a case and that power is limited by the Constitution. It may very well be that some cases as simply not prosecutable because the only relevant evidence is from a child. Tough. That's the breaks. I resent the notion that it is OK mangle and manipulate the Constitution into unrecognizable shapes "for the sake of the children".

Richard D. Friedman said...

I'll make a quick response to this anonymous posting.

Obviously, the Constitution does not speak of a quasi-witness. That's our term, meant to express the particular situation governing the child. Nothing in our argument depends on the term we use.

(1) Some very young children, we argue, are not capable of being witnesses within the meaning of the Confrontation Clause. If that is right, then the Clause just does not apply to them and does not in itself constrain the state.

(2) But despite the fact that (by hypothesis) the child is not a witness, the child may be a potential source of valuable evidence for the prosecution. (That's why we use the term quasi-witness, but ignore it if you don't like it.) There are lots of sources of evidence that are not witnesses and to which the Confrontation Clause does not apply.

Of course, I agree with the commenter that the state does not have aright to make a case and that its ability to do so is constrained by the Constitution. I don't believe that the Confrontation Clause applies to some very young children, but other constraints do. And I think the state should be constrained in much the same way that numerous courts have held the state is constrained in using evidence from non-human sources -- by a requirement that the accused have a right of examination through a non-human expert.

Really, the only thing that is novel about our argument is the idea that some very young children ought to be treated by the model that governs non-human sources of evidence, rather than by the one that governs adult witnesses. I believe that this is correct as a matter of principle. And the practical benefits are enormous.

Anonymous said...

I think the discussion about whether a child is a witness, quasi-witness, or non-witness missing the point. Criminal defendants have a constitutional right to a fair trial. For example,under Brady, the prosecution violates a defendant's right to due process by failing to disclose material evidence that is favorable to the defense, regardless of a lack of bad-faith. It is a due process violation, not because this situation is explicitly addressed in the constitution, but because it is contrary to fundamental notions of fairness embodied by the right to due process. As such, there is no reason why the Court could not conclude that those same notions of fundamental fairness require a defendant be given an opportunity to examine a child "witness" outside of court as the professor suggests. (I'm not saying the Court will so hold; I'm just saying that the analytical framework and precedent for such a holding is well established). Whether or not the child is a witness for purposes of the CC is, as the prof might say, orthogonal to this point.