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

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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.  

State Action and the Confrontation Clause

Regular contributor Paul Vinegrad, in comments to my previous posting, has been arguing that there’s no state action for purposes of the Confrontation Clause, as made applicable to the states by the Fourteenth Amendment, unless a state agent had something to do with the creation of the statement.   I want to respond here to two points made by Paul, both of which I regard as highly creative, which in this context means that they are clever but really have no relationship to reality.

First, Colorado v. Connelly, 479 U.S. 157 (1986), has nothing to say about the Confrontation Clause.  There, the Colorado Supreme Court held that admission of a confession initiated by the defendant while in an impaired mental state violated the Due Process Clause, despite no impropriety on the part of any agent of the state.  The US Supreme Court reversed.  Justice Rehnquist’s opinion for the Court included this passage, which I gather is what Paul has in mind:

Our “involuntary confession” jurisprudence is entirely consistent with the settled law requiring some sort of “state action” to support a claim of violation of the Due Process Clause of the Fourteenth Amendment. The Colorado trial court, of course, found that the police committed no wrongful acts, and that finding has been neither challenged by respondent nor disturbed by the Supreme Court of Colorado. The latter court, however, concluded that sufficient state action was present by virtue of the admission of the confession into evidence in a court of the State. 702 P.2d, at 728–729.

The difficulty with the approach of the Supreme Court of Colorado is that it fails to recognize the essential link between coercive activity of the State, on the one hand, and a resulting confession by a defendant, on the other. The flaw in respondent's constitutional argument is that it would expand our previous line of “voluntariness” cases into a far-ranging requirement that courts must divine a defendant's  motivation for speaking or acting as he did even though there be no claim that governmental conduct coerced his decision.

The essence of the holding is that an involuntary coercion, in the meaning of the Due Process Clause, is one that an agent of the state coerced, not one that merely results from the irrational condition of the defendant.  That’s really a substantive holding.  The Court never says, “There was no state action.”  I think its discussion makes it clear that what it is really saying is that there was no action by the state of the sort that makes a confession involuntary for constitutional purposes.

But the wrong with respect to an involuntary confession consists largely in the coercive out-of-court conduct by the state that secures the confession.  The Confrontation Clause is altogether different.  I’ll emphasize a point made many times before: The Confrontation Clause imposes no constraints on investigative activity by the police or other agents of the state; the police should  interview witnesses out of the presence of the accused and with everybody fully anticipating prosecution.  What the Confrontation Clause prohibits is the use at trial – which is of course under the auspices of the state – of a testimonial statement to help convict the accused without offering the accused the right to be confronted with the witness who made the statement.  That’s pure state action.

Second, Paul claims historical pedigree for his theory, by citing the Raleigh case.  The Raleigh case and other state trials are highly atypical of prosecutions of the pre-Revolutionary era.  Most crime was privately prosecuted.  There was nothing comparable to a modern police force.  And yet the confrontation right was well established in ordinary private prosecutions; for example, if the prosecutor (a private party) did not appear, the case was routinely dropped, not pursued by having someone else testify to what the prosecutor had observed.  Indeed, Raleigh, in claiming the right, emphasized that if it had been a mundane case – “for two marks” – he would have had an unquestioned right to be confronted with his accusers.  A robbery victim, for example, could not have made a statement to a friend about the robbery, in contemplation that the friend rather than the victim would testify at trial.

Supreme Court grants cert in a confrontation Clause case involving a child

The Supreme Court granted certiorari today in Ohio v. Clark, a case involving a statement by a three-year-old child.  As it happens, Steve Ceci and I have used this case as the touchstone for discussion in an article soon to be published in the University of Chicago Law Review, The Child Quasi-Witness.  I'll have more to say later about the case!