Wednesday, January 14, 2015

Friedman and Ceci amicus brief in Clark

The bottom-side amicus briefs in Clark were due today.  I'm hoping to post them all by tomorrow, but for now I can post the one that I did with Steve Ceci.  You can read it here.

Update (Jan. 16, 20115):  When I posted this yesterday, I said that I had learned that one of the links in the brief, to a thesis by Amelia Hritz, didn't work.  But I've since tried it and it came right up.  In any event, click here and you should have no trouble getting it.  Sorry for any inconvenience.


paul said...

At its core, Professor Friedman's argument is a request that the Court adopt a substantive due process/"fundamental fairness" rule as follows:

If a very young child declarant is found to be incompetent to testify at trial (because he doesn't understand what it means to tell the truth, i.e., is "truth incompetent"), his hearsay accusation is inadmissible, unless the defendant had an opportunity to examine the child before trial.

The problem with Professor Friedman's (reasonable) argument is that the applicability of the Due Process Clause to the hearsay in Clark is not among the questions presented. Professor Friedman has cleverly tried to smuggle a due process/fundamental fairness argument into the case under the guise of a Confrontation Clause analysis.

Professor Friedman's comparing a very young child to a piece of physical evidence (that the defense has a right to examine before trial) is premised upon due process principles of fairness which are simply not before the Court in Clark.

Rather, assuming that the teacher questioners were state actors, the only issue that the Court must decide in Clark is whether the child's hearsay accusation is "testimonial" (under whatever primary purpose formulation five Justices elect to apply).

Whether or not it is "fair" to introduce the hearsay accusation of the "truth incompetent" child declarant against the defendant is, because of the turn the Court took in Crawford, irrelevant to the Confrontation Clause issue before the Court.

Anonymous said...

My primary issue with Richard and Steve's brief is their belief that different interviewing techniques for children can solve the confrontation problem of the state-poisoned child witness. Rather, in my view Professor Fisher has the better balance of the equities when he writes, "So jurisdictions understood that if they deemed children incompetent to testify, the prosecution could not introduce any prior accusations the children made." (p.2)

I believe this is the better balance of the equities because I believe it is the more accurate reflection of the child's interaction with the legal system. The brief seriously underlays, when it does not outright misstate, the psychological difficulties of the interaction between the child and the legal system. The authors downplay these difficulties because they think that the child has evidence worth saving. It does. But once again I find myself in agree with Professor Fisher that the damage to the adversarial system is just not worth that price (p.58-59).