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.