Duhs v. Capra: Judge weinstein weighs in on statements by children

Several readers have pointed out to me Judge Weinstein's decision last week in Duhs v. Capra.  I've been meaning to post a link, and here it is.  At 93, Judge Weinstein can still write faster than I can read.

Like Ohio v. Clark, this is a physical-abuse case involving a statement by a three-year-old who did not testify at trial.  Judge Weinstein -- on habeas, no less -- holds that the statement was testimonial and that its admission violated the Confrontation Clause.  He acknowledges that the child would not realize that his statement to a doctor might be used in a later legal proceeding, but he says that the child could realize that the statement would lead to his father's punishment.

I think Judge Weinstein is too hasty in that latter conclusion, and for all the length of the opinion, he provides no empirical support for it.  I wish that he had considered the approach presented by Steve Ceci and me in our amicus brief in Clark and in our forthcoming piece in the Chicago Law Review, which I have posted on this blog.  I certainly agree with Judge Weinstein that statements to doctors, teachers, and social worker can be testimonial.  But I don't think a three-year-old talking out of court to a doctor is capable of being a witness for Confrontaiton Clause purposes; he is, however, a significant source of evidence, and the accused should have a right of examining him out of court through a qualified expert.

If we put aside our theory for argument's sake, I think it's an interesting question whether a statement should be considered testimonial if made by a child who doesn't understand the legal system at all but does understand that his statement might cause the person whom he addresses to punish the person whose conduct he describes.

In the Duhs case, unlike Clark, the trial court held the child competent to testify at trial.  Judge Weinstein emphasizes the difference, presumably to try to shield his decision from reversal after Clark is decided.  He also emphasized that the audience was a medical professional rather than a school official.  I'm not sure htat makes much difference.