Sunday, March 01, 2015

Comparing the Quasi-Witness and Craig Approaches

I have previously posted the amicus brief that Steve Ceci and I have submitted in Clark and an essay about to be published in the University of Chicago Law Review.  Both present what we call a quasi-witness approach in dealing with statements by very young children.  Under this approach, the accused does not have a right to cross-examine the child at trial, but does have a right to have the child examined out of court by a qualified expert pursuant to a court-approved protocol.  Under the Supreme Court’s decision in Maryland v. Craig, child witnesses who appear, on the basis of an individualized showing, to be likely to suffer trauma as the result of confronting the accused may be examined out of the courtroom, with only the attorneys present.  So there are some similarities in practical effect between our approach and that of Craig: Both allow for some form of examination out of court rather than in court.  But the approaches are very different both theoretically and practically.  In this post, I will argue that our approach is clearly superior on both scores.

1.  It’s useful to note at the outset that the majority opinion in Craig, a 5-4 decision, was written by Justice O’Connor, one of the two members of the Court who did not sign onto Justice Scalia’s majority opinion in Crawford v. Washington, and it generated a bitter dissent by Justice Scalia.  Not surprisingly, it is the dissent in Craig, not the majority opinion, that bears a closer resemblance to the majority opinion in Crawford.  Justice O’Connor’s Craig opinion, as a product of the pre-Crawford regime of Ohio v. Roberts, is filled with balancing language; it explicitly balances the right of confrontation against other values, most notably the protection of children, and it concludes that “face-to-face confrontation” – what Justice Scalia says is merely “confrontation” – is sometimes dispensable.  Naturally, this approach makes Justice Scalia apoplectic.  And in Crawford he wrote for the Court in establishing a view of the Confrontation Clause that is very much in keeping with the views he expressed in his Craig dissent: The Clause establishes a procedure for giving testimony, and it operates categorically, not by weighing costs and benefits case by case. 

The Supreme Court had turned down opportunities to decide whether Craig survives Crawford, so they have coexisted for a decade.  And they do answer different questions: Crawford says when a person should be considered to be witnessing for purposes of the Confrontation Clause, so that the confrontation right attaches, and Craig addresses the procedures that may be used to satisfy that right with respect to certain children.  Nevertheless, a system that requires the continued viability Craig in the Crawford era is theoretically uncomfortable at best.  This is especially true because what Craig takes away is the historical heart of the confrontation right – the right to be “face to face” with the witness.

By contrast, our approach fits the categorical nature of Crawford perfectly.  The confrontation right gives the accused a categorical right to be confronted with adverse witnesses, subject only to the qualifications that it may be waived and forfeited and to a possible sui generis exception, as Crawford termed it, for dying declarations (which I think ought to be considered instances of forfeiture, but that’s another battle).  So the big question is who the adverse witnesses are.  The Court has made clear since Crawford that only by making a testimonial statement does one act as a witness, not by making any out-of-court statement that may later be introduced at trial.  Similarly, we are contending that some very young children are simply outside the category of witnesses.  The Confrontation Clause simply does not apply to them.

2.  I think that if Craig persists, it could expand.  If the state has a compelling interest in protecting children from trauma, and that is sufficient to relieve them from having to testify in court, then one might ask what other witnesses likely to suffer from trauma may claim Craig-like procedures – and what considerations other than trauma might justify such procedures.  The quasi-witness approach, I believe, is much more tightly confined.  Beyond a set of very young children, one could argue that it should apply to severely impaired adults.  But I think the basic idea of a person lacking the cognitive skills to be a witness is applicable to very few adults, and (unlike children) they do not tend to provide evidence for trial very often.  The Supreme Court might also hold that, because it prefers setting objective tests, it makes sense applying the quasi-witness approach to children – below a given age, virtually all children lack a given set of cognitive abilities – but not to impaired adults, because each case would have to be assessed on its own.

3.  The confrontation-as-softened-by-Craig approach – what I’ll call the prevailing approach – offers help to the accused only if in the given case the particular statement is determined to be testimonial.  Courts plainly resist reaching that conclusion with respect to statements of very young children, and it is easy to see why.  If a court decides that the particular statement is not testimonial, then the accused has no rights at all under the prevailing approach to examine the child.  (That is especially true in a case like Clark, in which the child was deemed to be incompetent to be a trial witness.  Even if the child is deemed competent to be a trial witness, the opportunity to call her to the stand is usually of little avail to the defense.)  State hearsay law, of course, may keep the statement out, but hearsay law is a sieve.  That is especially true with respect to statements of young children.  Courts are especially inclined to let their statements in, and many jurisdictions have adopted “tender years” exceptions.

Under our approach, by contrast, if the child is deemed to lack the capacity to be a witness, the statement may be admitted but the accused right to examine her (out of court, through a qualified interviewer, under a prescribed protocol) without reservation; there is no need to ask questions such as whether the statement would be deemed testimonial if it has been made by an older person.  This is much simpler.

4.  Craig only applies if the trial court determines that the child will likely suffer trauma from having to confront the accused.  (Trauma from having to testify in open court is not enough.)  Otherwise, if the confrontation right attaches the child must come in and testify in open court or the child’s statement cannot be used.  There is no such limitation on the quasi-witness approach.  If the child is below a prescribed threshold – such as a given age – then the quasi-witness model applies, and the right to examine the child out of court automatically attaches. 

5.  Under a Craig approach, if the accused has any right with respect to the child, it is a right to cross-examination – which means, at least in the model envisioned by Craig itself, that the examination is conducted by a lawyer, and there are two lawyers in the room.  That’s not good for truth-determination – cross-examination of young children is generally not useful, and lawyers tend not to have well developed skills for questioning them – and it’s bad for the child.  Perhaps one could hold that confrontation demands less – not only does it not require that the accused have an opportunity to be “face to face” with the witness, but it does not require that he have the right to have the one who asks questions on his behalf be a lawyer – but then I worry even more about sapping substance from the confrontation right. 

Under the quasi-witness model, by contrast, the out-of-court examination would be designed to maximize usefulness and minimize trauma.  Only one person – a qualified interviewer operating under a court-approved protocol – would be in the room with her.  The surroundings and the entire process could be designed in a way to make the child as comfortable as possible and to generate as useful an interview as possible.  The interviewer could use whatever techniques appear appropriate for making the interview productive as well as humane.

6.  Under the prevailing approach, even if the child is compelled to testify, whether in the courtroom or under some alternative procedure, it likely will not do the accused much good.  A cross-examiner is unlikely to get much out of the child.  (The common logic of cross– “You just testified to X. But Y is true, right?  And they can’t both be true, right?” – rarely gets off the ground young children.)  Even if the child fails to confirm the substance of the prior statement, it does not much matter, because, given that the prosecution has called the child as a witness, prevailing confrontation law allows the prosecution to introduce that statement.  And if the child fails to answer questions on cross or direct, the jury is unlikely to infer that this undercuts the credibility of the child’s account; it will almost certainly appear that the child is just scared or bewildered or, long after the fact, forgetful. 

Under the quasi-witness model, by contrast, the accused has the benefit of an expert of his choosing examining the child in an attempt to determine what limitations there are on the probative value of the child’s statement.  It may still be that the child will completely clam up in that setting, of course – but it is far less likely than in a lawyer-dominated cross-examination setting.  And even if the child does clam up on the subject of the incident at issue, the examination will put the expert in a better position to evaluate and report to the jury on the child’s limitations and the significance of the statement.

7.  Ultimately, trying to treat very young children as witnesses is a matter of a bad fit, like trying to jam a square peg into a round hole.  When Sylvia Crawford spoke to the police in the station-house, she was witnessing; if that statement were to be allowed as proof, then we would have system in which witnesses could testify by talking to the police in the station-house.  Similarly with Amy Hammon speaking to the cops in her living room, or the lab analysts writing their reports in Melendez-Diaz and Bullcoming.  But poor bewildered little L.P. was not acting as a witness, and he did not have the capacity to.  Trying to jam him into the witness category, and provide rights that are appropriate to his age, will almost certainly fail on both ends – not yield a procedure that makes sense for three-year-olds and distort the procedure for older people.  If we recognize that very young children are not just smaller versions of adults, but categorically different, and that though they can observe and report they lack the capacities that are essential for one to be a witness who should be subject to confrontation, we can then design a system that makes sense for them – and leave the confrontation right undistorted.


paul said...

Professor Friedman,

What happens under your quasi-witness approach if the child's guardian (in good faith) refuses to allow the child to be subjected to an interview by the defendant's expert?

Are the guardian's held in contempt of court?

Is the prosecution precluded from introducing the child's nontestimonial hearsay, even though they tried (in good faith) to convince the guardian's to permit the interview? (i.e., the child is "unavailable" (to undergo the interview) because of factors beyond the control of the prosecution.)

Also, how do you define "very young children" (who are not CC "witnesses")? How would a court make that seemingly arbitrary determination?

What if, in a particular case, a "very young child" is competent to testify? Is that child's hearsay subject to the CC's admission bar even though, under your approach, he/she is not a CC "witness"?

Given their statements in prior cases, which Justice(s) is(are) most likely to adopt your quasi-witness approach?

Anonymous said...

I agree with Professor Friedman's overall point about jamming a square peg into a round hole. The difference between us is that in my view this reality should categorically exclude the testimony of the child in all respects while the professor wants to salvage some information that the child might provide. My underlying problem is that Professor Friedman's approach is really a balancing test too. Only it will be a balancing of experts outside the court rather than balancing by the judge. Knowing experts as I do--and court authorized procedures as I do-all his approach will do is further bury prosecutor abuses under a maze of procedure and expertise.

For me the matter is cut and dried. The CC requires confrontation or it requires exclusion. The text itself demands that. The desire to save some portion of the child's testimony in an effort to further truth seeking is commendable but pragmatically changes nothing from the Craig approach.

Gideon said...

I'm really confused by your suggested approach: are you saying that any child testimony is automatically admissible without cross-examination by the defense, except the defense is permitted to have an expert examine the child and then report the findings of that examination to the jury?

In your scenario, would the child testify in court, in front of a jury, and the defendant not be permitted to cross? Can you imagine the implications of that and the impact on jurors?

Or would the child not testify in court at all, but provide an out-of-court statement in some recorded fashion that is a narrative?

Or can anyone like a teacher come and testify that the child made a statement implicating the defendant, without the jury ever seeing or hearing from the child?

Finally, did you read the amicus from Arizona, Iowa and CT? In CT, child witnesses are permitted to testify outside the presence of the defendant if there is a hearing that the child's testimony would be undermined by testifying in the defendant's presence. The defendant can have the child examined by an expert to oppose such out-of-court testimony. If granted, the attorney would be present and permitted to cross-examine the child, but not the defendant himself. What is the problem with such a system?

Richard D. Friedman said...

First, in response to Paul's questions: (1) If there's a guardian who resists making the child available for the interview, the state is put to a choice comparable to that it faces whenever there is a reluctant prosecution witness: It can do without the evidence or it can use its coercive power (in this case over the guardian). I do not think the situation would arise all that often, because the forensic interview would not be confrontational. (But if the guardian's opposition were enough to defeat the accused's right, guardians might resist all the time.)

(2) We leave the definition of very young children to whom the quasi-witness procedure should apply because there are various considerations that might go into the determination. But that does not mean it's arbitrary or unmanageable. An essential to be a witness, I think, is that children understand the solemnity of their statement, in the sense of understanding the consequences; our essay and brief lay this out, and I'm hoping to post something about it later. That gives a comprehensible standard. Courts could come up with rules as simple as: A child under four (or pick another number) years of age should not be treated as a witness. Courts could also adopt the moral theory of my colleague Sherman Clark, under which it is improper to impose on very young children the ordeal and responsibility of testifying; under this theory, the quasi-witness approach might be suitable until a much higher age.

(3) I guess I don't understand the question about a very young child who is competent to testify; our theory applies when the child, at least as of the time of the statement, is too young to be deemed a witness for Confrontation Clause purposes. If the state nevertheless put the child on the stand, the accused would be entitled to some remedy; whether cross as such is necessary and whether it's sufficient in that setting are two separate questions.

(4) I never am very good at predicting individual justices' positions. But yesterday there sure did seem to be several justices interested in a due process approach, they seemed unwilling simply to admit the statement and leave teh accused with no remedy, they seemed to think there was another question to ask, perhaps under due process, after resolving that the statement was not testimonial, and there was some discussion of a "therapeutic" interview.

Because of size limitations, I'll have to do separate comments in response to the anonymous commentator and Gideon.

Richard D. Friedman said...

In response to the anonymous commentator: I don’t think it’s an appealing result to exclude the child’s statement, which is often highly probative evidence. And I don’t think this, or any, Supreme Court would be happy in making that a general result in cases of this sort.

The commentator is very pessimistic about our solution providing anything of real value to the defense. But let’s bear in mind that the expert would be chosen by the defense, and the analogy is an expert appointed by the defense to examine, inspect, and perhaps even test tangible evidence. To be sure, to protect the child there would have to be restrictions on what the expert could do, but the expert has to be given a legitimate opportunity to test the child’s truth-telling ability, including with respect to the matters at issue. I’m convinced that this opportunity is much more useful to the defense than is in-court cross-examination – especially because, as noted in the main post, once the child appears at trial current doctrine allows the prosecution to introduce the prior statement.

Gideon asks:
[A]re you saying that any child testimony is automatically admissible without cross-examination by the defense, except the defense is permitted to have an expert examine the child and then report the findings of that examination to the jury?

In your scenario, would the child testify in court, in front of a jury, and the defendant not be permitted to cross? Can you imagine the implications of that and the impact on jurors?

Or would the child not testify in court at all, but provide an out-of-court statement in some recorded fashion that is a narrative?

Or can anyone like a teacher come and testify that the child made a statement implicating the defendant, without the jury ever seeing or hearing from the child?

First of all, I’m only talking about a subset of children, those who are incapable of the understanding necessary to be witnesses. Because they’re incapable of being witnesses, their statements shouldn’t be termed testimonial. As to them, the Confrontation Clause shouldn’t apply. It therefore poses no obstacle to introduction of their out-of-court statements (though of course other doctrines might), and so far as the Clause is concerned the prosecution can present evidence of those statements however it wishes – a video of the child making the statement, the testimony of a teacher, whatever. But the defendant has a due-process right to have an expert of his choice examine the child out of court. The expert can then testify to his or her conclusions about the child’s truth-telling ability, in general and with respect to the particular statement at issue. The examination would presumably be videorecorded, and the defense could play that video to the extent appropriate in support of the expert’s testimony.

Gideon also asks what I think is wrong with the Connecticut procedure. That procedure, as I understand it, is merely an example of the accommodation allowed by Craig – cross-examination outside of the courtroom, with the attorneys present but not the accused. I think it suffers the limitations pointed out in my main post. It’s still attorney-run, which means it will probably be ineffective. Unless the child can be considered a witness for Confrontation Clause purposes, the state is under no pressure as a result of the Clause to offer a procedure of this type at all. The procedure unfortunately preserves and relies on Craig, which is completely out of step theoretically with Crawford. As a result, it diminishes the force of the Confrontation Clause, saying that in some circumstances face-to-face confrontation is not required – even though that is the essence of confrontation. And – I should have emphasized this – it happens at trial time, long after the events at stake; the interview I’m talking about can happen very soon after.