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.