Tuesday, March 03, 2015

Thinking past Clark: Make that Due Process demand now! (And what to demand.)

Let’s assume that the Supreme Court holds in Ohio v. Clark that there was no Confrontation Clause violation when the trial court admitted evidence of three-year-old L.P.’s out-of-court statement, even though L.P. not only did not testify at trial but was held incompetent to do so.  In light of the argument yesterday, I think no one will say that assumption is unrealistic.  But the argument also indicated that there may be a Due Process problem with introducing evidence of this sort without the accused having any remedy at all.  Let's also assume for the sake of argument that the Court doesn't use Clark itself as the vehicle to clarify what role the Due Process Clause might play in this realm.

So my suggestion for defense lawyers with clients accused of child abuse, especially of very young children – or more generally, in cases in which it appears the statement of a young child may be significant evidence: Starting right now, make a Due Process demand.  And don’t wait until trial or immediately before trial.  Make it as soon as you know that the child has made a statement that the prosecution is likely going to want to introduce at trial, even if charges have not been brought.  You might prevail.  At least you will have preserved the issue, and in the strongest possible light.

Let’s suppose a case just like Clark arises.  The plausible Due Process contention is not that L.P.’s statement is so unreliable that it would violate Due Process to admit it.   Lots of evidence that is readily admitted is unreliable – including eyewitness testimony!  Reliability is not a useful threshold for the admissibility of evidence.  Triers of fact are supposed to consider all sorts of evidence, some of which may be very unreliable, and make a finding based on the totality of all that evidence.  L.P.’s statement is clearly not reliable, but neither is it so worthless and prejudicial that admitting it is in itself a Due Process violation.

Readers of this blog will not be surprised to know that I think the best argument is to claim the procedural rights outlined in the amicus brief that Steve Ceci and I submitted and the law review essay on which it is based.  Defendants should argue, in essence:
It would be fundamentally unfair, and a violation of the Due Process Clause of the Fourteenth [or Fifth, in a federal prosecution] Amendment [and of the similar clause of the state constitution] if the child’s statement were offered against my client at trial without us having any right to examine the child at all.  Adverse examination at trial, the usual remedy with respect to adults, is [fill in:  “impossible,” if a court has held, as in Clark, or clearly would hold that the child is incompetent to be a trial witness; “not a plausible or satisfactory alternative,” otherwise].  Accordingly, we must have another remedy, as we would in case of a nonhuman source of evidence – that is, to have a qualified expert of our choosing examine the source of the evidence.  In this case, that expert would be a psychologist who is qualified by training and experience to conduct forensic interviews.  The aim of the interview would be to assess the child’s truth-telling inclination and ability, both in general and with respect to the matter asserted in this case – and in particular how it may have come about that the child made the assertion even though it was not true.  It is important that this interview happen quickly, to avoid the effects further suggestion and of corruption and deterioration of memory.  I recognize that the interview must be conducted according to a protocol agreed on with the prosecutor or prescribed by the court.  [Our essay suggests standards that such a protocol might include.]
I think it is important to make this demand as soon as possible because one of the advantages of this procedure is that the interview can be held long before trial, shortly after the child makes the initial statement.  Accordingly, if the demand is made early but denied, the accused will be in the best possible position to argue that the denial was prejudicial.  I would therefore make the demand even if no formal prosecution has begun:  Even assuming governing criminal procedure rules don’t have a readily available mechanism for getting a court-ordered interview at that time, the accused can make the demand of the prosecutor or of the police, who are in a position at the very least to try to secure the presence of the child for the interview.

I think it’s important that the interviewer be well qualified and of the defense’s choosing, that the defense ought to be able to review the case with the expert before the interview and discuss possible lines and methods of inquiry, and that the interview be videotaped.  Our essay suggests other standards as well.  I don’t think that the defendant ought to have a right to demand during the interview that the interviewer ask certain questions – this is not cross-examination – but of course that is one issue among many that would ultimately have to be decided.  The big-ticket issue is whether the defendant has a right to the interview at all.  I do believe fundamental fairness requires an affirmative answer.

If enough defendants make a demand of this sort, some of them will be granted and some will be denied.  Ultimately, the question of whether, in at least some circumstances, the accused has a right to such an interview will reach and be decided by the Supreme Court.


pail said...

And what Supreme Court case(s) would you cite to the trial court in support of your proposed substantive due process rule?

Richard D. Friedman said...

There is a line of Supreme Court cases that speaks about constitutional right of access to evidence. There are lots of lower court cases that make the right very clear within the context of tangible evidence. In that context -- the closest analogy to what I'm talking about -- the matter doesn't usually reach constitutional litigation because it is so clearly established as a matter of rule and ordinary practice -- see, e.g., Fed. R. Crim. P. 16. There's more on this in our brief. And, of course, depending on what happens, Ohio v. Clark might be a very good cite.

paul said...

At the risk of overstatement,there is no possibility that the Court would ever hold that every criminal defendant (charged with child abuse or child molestation) has a substantive due process right to have his/her expert conduct an involuntary psychological/psychiatric examination of the child victim before a trial court can admit the incompetent child's hearsay accusation.

Basing any such rule on a defendant's due process right to examine a piece of non-human, tangible evidence (such as a bullet fragment, a DNA or blood sample) is completely misplaced. And can't be compared to involuntarily subjecting a young child -- who already has been victimized and traumatized -- to the potential additional trauma of having to relive a nightmare.

The child victim (and his/her guardian) has (have) a fundamental right not to be subjected to an involuntary mental examination.

However, if the only evidence against a convicted defendant is an incompetent child victim's uncorroborated hearsay accusation, an appellate court should determine if the defendant was "deprived" of "liberty" without "due process" of law, i.e., whether his/her trial was fundamentally fair. In this context, due process does not operate as a substantive (admission bar or right to conduct a mental exam) rule, but rather as a procedural check on the fairness of the overall proceeding -- a determination that is made after the prosecution secures a conviction.

Richard D. Friedman said...

Well, yes, I think that's very overstated.

First of all, I'm not sure where the word psychiatric came in; this has nothing to do with that.

Second, even though I suppose the interviewer would ordinarily be a psychologist, this is not a psychological examination in the full sense; it's an exam or interview tightly focused on determining truth-telling ability.

Third, given that as matters stand the child is often asked to repeat his or her account several times to various people who may be affiliated with the state or required to report to the state, it is at the very least ironic to say that it is too traumatic for the child to be asked to speak, under carefully controlled conditions, to someone designated by the accused.

Fourth, the type of exam or interview envisioned here, by someone specially trained to deal with children, is much gentler on the child than is examination -- both direct and cross -- by lawyers at trial.

Fifth, there is no fundamental constitutional right to avoid a mental exam in an appropriate case; even in civil cases they may be required, and even of defendants. Cf. Fed. R. Civ. P. 35; Schlagenhauf v. Holder.

Sixth, ultimately, the state has a choice, if the child's guardian resists the exam, whether to compel it or do without the child's evidence. In most cases, if the failure to submit to the exam means the loss of the evidence, the guardian will go along without need for compulsion.

That's just what appears off the top of my head in the middle of the night.

paul said...

The federal government and the states can certainly attempt to provide for the procedure you describe as a matter of federal or state law. (Although I believe that any such legislation will face stiff opposition from many child advocacy groups and others.) And state courts can hold that the procedure is proper under their respective constitutions.

But, given my understanding of the Court's strong reluctance to devlop substantive due process rules, I just don't see the Court constitutionalizing your proposed rule.

Remember, the defense has (or should have) a full opportunity to impeach the unavailable (because incompetent) child declarant's hearsay accusation by any all means that they could have used had the child been available to testify at trial. This impeachment (of the hearsay declarant) -- a procedure that is permitted, I believe, in every state -- includes (or should include) the right to call a qualified expert witness to testify to memory and truth-telling problems, etc. of young children in general.

I also believe that, as a matter of state law, the jury should be told that the child declarant was deemed incompetent to testify by the court, and be apprised of why that finding was made. Those factors are important in assisting the jury in assessing the weight, if any, to be afforded the child's hearsay accusation.

Anonymous said...

Waiting until after a defendant has already been conviction to consider whether the admission of a child's hearsay statements may have violated his due process rights is no way to protect a defendant's rights. Besides the fact that on appeal the burden is on the defendant, anyone with any experience litigating criminal appeals knows that a reviewing court's instinct is to affirm (indeed, reviewing courts will often bend over backwards to find an excuse to affirm).

What is more, an appeal is not a sufficient substitute for the ability to examine the child. If the admission of an incompetent child's hearsay statement, without the defendant having been given an opportunity to examine the child, is not categorically considered a due process violation, the reviewing court would have to look to the statement itself and the circumstances under which it was made to determine whether the admission of the statement was unfair. But since the defense was not given the opportunity to examine the child and make a record of its expert's findings, the reviewing court would, for the most part, be presented only with the prosecution's version of things.

As such, merely hoping that an appellate court would clean up any due process violations is not an adequate way for protecting a defendant's constitutional rights.

paul said...

@ Anonymous @ 1:29 PM

Are you suggesting that the admission of an incompetent child's hearsay accusation without the defendant having been given an opportunity to examine the child always results in an unfair trial (in violation of DP), regardless of the strength of the remaining evidence of guilt?

Other than the singular instance where the Court has developed a substantive DP/admission bar rule (i.e., the Court's watered-down eyewitness identification cases), the question of whether or not the DPC has been violated (i.e,. whether or not a defendant has been denied a fair trail) is always going to be a backwards-looking endeavor requiring an evaluation of what, if any, additional evidence established guilt beyond a reasonable doubt.

Please cite the Supreme Court case that you believe most persuasively supports the substantive DP rule proposed by Professor Friedman.

Richard D. Friedman said...

I'm not sure why Paul keeps calling this a substantive DP requirement. It is about as procedural as can be. The question is the defense's chance to examine the source of the evidence. With non-human evidence, that's a well established right and is routine. With most human evidence, we expect the chance to be cross-examination at trial, but that doesn't work here.

And I think it's pretty obvious that the defendant's opportunity to put an expert on the stand to testify in general about limitations on children is no substitute for a personal examination or interview of the particular child.

Anonymous said...

I think that doing an end run around the CC with the Due Process Clause (DPC) is a fundamentally misguided. It will as paul cogently notes leave the defendant with no rights at all. Moreover, from a purely doctrinal point of view it's an ill fit. The DPC simply has never been designed to handle this type of "evidence".

The more I have thought about Professor Friedman's approach the more bothered I have become about it. The child isn't a witness, they are evidence. That's the claim. This fundamentally dehumanizes the child in a way that is morally disturbing. One of the things that distinguishes a "witness" from "evidence" is that a witness can speak for himself where as evidence is mute. The child is a living thing that /gives/ evidence. There is no moral basis for treating a human being as non-human. I was OK with the notion that a child is a "quasi-witness" because that maintains the child's humanity. Treating the child as evidence under the DPC entirely eradicates that humanity.

The two most recent posts by the Professor leaves me with with the disturbing inkling that in his lust for "healthy doctrine" he has totally forgotten that human lives are at stake. He seems more than willing to accept that a serious injustice continue to Mr. Clark so long as his precious doctrine remains intact. Maybe I'm getting the wrong impression here and if so I apologize. But I am not willing to see Mr Clark serve 28 years in prison just so some academics can feel good about their work.

A serious wrong was done at this trial. The intermediate court in OH recognized that by throwing out 6/8 witnesses. The Ohio Supreme Court recognized that by throwing out the other two. Some where along the lines SCOTUS needs to give that reality its due: not just pawning it off with "you made the wrong arguments, suck it loser."

Richard D. Friedman said...

In response to the last anonymous comment:

Of course I do not dehumanize the child. I am just recognizing -- as I think pretty much the whole Supreme Court does -- that the child is in a very different position than adults, and it is not useful to think of the child as if he or she were a little version of an adult.

I have not spoken of the child as evidence (though I think in Britain it is still common to speak of a witness as an "evidence"). Rather, I have spoken of the child as a source of evidence, which is unquestionably true, just as an adult is a source of evidence. And the question is what rights the accused has with respect to this particular group of sources of evidence. Giving the accused the right that he has with respect to adult witnesses doesn't fit theoretically and doesn't work in practice. I think the right that I'm talking about is superior on both scores. I have not seen any reason to believe that the right, if recognized, would not have real substance.

As for the rights of Clark himself: Yes, he may well have suffered a terrible injustice. And nothing I have said suggests that he shouldn't be able to get a fair shake now. Let's suppose that the Supreme Court holds that there is no Confrontation Clause violation. So far as I am concerned, he should be allowed on remand to raise the type of argument that I am advocating. He may well be able to argue that he can hardly be blamed for failure to raise it before, especially given that he won on Confrontation Clause grounds in both the appellate and state supreme courts. In any event, I don't think any procedural default on the part of Clark can be considered a defect in the approach I am advocating.

And as to practical impact and theoretical purity: Over the long haul, I believe that a theoretically sound approach to legal problems tends to yield reliably good results in practice. I am thinking not only of Clark but of the many, many people who will be in a situation comparable to his. I don't think they have a confrontation right with respect to very small children, and I think the Supreme Court will agree. But i do think it's important for them to have some right of examination.

Anonymous said...

"and it is not useful to think of the child as if he or she were a little version of an adult."

I have two thoughts on that. First, whether it is or it not useful it has no textual or historical support. Even if there should be (as a normative matter) a child exception to the CC the actual text of the clause contains no such exception. Nor is there anything in the history of the clause itself that implies such a child exception was ever envisioned by the Founders.

Yet even if it is not useful to think of the child as a "little adult" that does not mean the correct answer is to think of the child as a special form of evidence for the purposes of the DPC. A hypothetical will illustrate why.

Imagine that the state of Ohio were to try an eight year old as an adult in a murder. Whether or not that is wise as a normative matter of policy there is nothing in the federal Constitution that prohibits it. Children as young as 12 have been tried as adults for murder. It would produce a distinctly odd result that a child in such a position has a federal right to confront the witnesses against him under the CC yet that same child would not able to be confronted as a witness under that same CC.

paul said...

@ Anonymous @ 4:50 PM

So, do you believe that the Court made a mistake by adopting the testimonial approach in Crawford? If so, do you believe that the Court should reinstate the Roberts reliability doctrine? If not, what standard do you believe the Court should use to decide if there is a CC admission bar to hearsay?

I believe that if the Roberts reliability test was applied to the incompetent child's accusatory hearsay in Clark there would be a much greater chance that it would be excluded under the CC. But, under the testimonial approach, as Professor Friedman and I noted, there is high likelihood that the Court will (unanimously) hold that the CC is not implicated.

Every doctrine is going to have winners and losers. But I don't think that a policy preference for a particular winner or loser should have role in the Court's determining the meaning of the CC's text.

Richard D. Friedman said...

No one is arguing for a child exception to the Confrontation Clause. The Clause speaks in terms of witnesses, and so here as elsewhere a key question is who is acting as a witness. I don’t think that in speaking to a preschool teacher 3-year-old L.P. was acting as a witness.

There is in fact a lot of pre-framing history of very young children being treated differently from adults.

The premises of the anonymous contributor’s hypothetical seem wrong to me. I suspect that there would be a constitutional objection to an 8-year-old being tried as an adult for murder. And under our approach, an 8-year-old would probably be old enough to be treated as a witness. (I say probably because, though I think that an 8-year-old is cognitively mature enough to be a witness, I still think it’s worth considering the theory of my colleague Sherman Clark that the ordeal and moral responsibility of being a witness should not be thrust on children til they are a good deal older.) But even putting the mistaken premises aside, there’s no incoherence in giving a criminal defendant a right to be confronted with a witness even though the defendant himself would not qualify as a witness.

paul said...

I think L.P. was acting as a "witness" (to the event of his being struck by Dee) as that term is understood by most people today.

But the Court has been (and is still) struggling to determine the much narrower meaning of that term as it is was used in 1791 in the CC.

If the narrower meaning is determined based upon the particular government abuses that transpired in Raleigh's case than the term is limited to a particular set of circumstances -- circumstances which include an attempt by the government to create out-of-court accusatory statements for the purpose of using them in court against a criminal defendant without affording him/her an opprtunity to confront his/her (available) accuser.

But the Court has concluded that the term also includes hearsay declarants whose statements are created in circumstances that sufficiently "resemble" those that existed in Raleigh's case.

The circumstances under which L.P.'s hearsay was created is so far removed from the core historical abuse that existed in Raleigh's
case that Clark is not even a close case.

But it is still incumbent upon the Court to define with far greater specificity the particular factors that existed in Raleigh's case that constituted the abusive practice.

Until the Court does that with greater specificity, it will be impossible in many cases for litigants and lower courts to determine if a particular hearsay statement was created in a manner that resembles the abhorrent practice used by the Crown in Raleigh's case.

I have previously identified those factors on this blog. I won't repeat my formulation at this time. (Professor Friedman says "Thank God!")