tag:blogger.com,1999:blog-9532013.post4612751280520064256..comments2024-03-28T04:12:44.103-04:00Comments on The Confrontation Blog: Comparing the Quasi-Witness and Craig ApproachesRichard D. Friedmanhttp://www.blogger.com/profile/08376534293308240526noreply@blogger.comBlogger7125tag:blogger.com,1999:blog-9532013.post-72925903013105553232020-04-16T00:32:51.340-04:002020-04-16T00:32:51.340-04:00I will bookmark this site and take the feeds also…... I will bookmark this site and take the feeds also…I’m happy to locate so much useful information right here within the article. If you're looking for the best <a href="https://www.thingstodopost.org" title="Things to do" rel="nofollow">Things to do</a> in the world, this list has something for everybody! From adventure to culture, food to history .Susanhttps://www.blogger.com/profile/08035164273592355585noreply@blogger.comtag:blogger.com,1999:blog-9532013.post-82698701815385799012020-04-01T19:30:22.179-04:002020-04-01T19:30:22.179-04:00Haloo pak^^
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Pelayanan CS yang ramah dan Proffesional dan pastinya sangat aman juga bisa anda dapatkan di Sentanapoker.yessy haryantohttps://www.blogger.com/profile/16503331838637071246noreply@blogger.comtag:blogger.com,1999:blog-9532013.post-84488743403009473232015-03-03T17:55:14.726-05:002015-03-03T17:55:14.726-05:00In response to the anonymous commentator: I don’...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.<br /><br />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.<br /><br />Gideon asks:<br />_________<br />[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? <br /><br />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?<br /><br />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?<br /><br />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?<br />__________<br /><br />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. <i>But</i> 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.<br /><br />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 <i>Craig</i>, which is completely out of step theoretically with <i>Crawford</i>. 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.Richard D. Friedmanhttps://www.blogger.com/profile/09512800093689534416noreply@blogger.comtag:blogger.com,1999:blog-9532013.post-52117105816620600652015-03-03T17:54:46.918-05:002015-03-03T17:54:46.918-05:00First, in response to Paul's questions: (1) I...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.)<br /><br />(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.<br /><br />(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.<br /><br />(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.<br /><br />Because of size limitations, I'll have to do separate comments in response to the anonymous commentator and Gideon.<br />Richard D. Friedmanhttps://www.blogger.com/profile/09512800093689534416noreply@blogger.comtag:blogger.com,1999:blog-9532013.post-80195616569302527502015-03-02T18:04:26.787-05:002015-03-02T18:04:26.787-05:00I'm really confused by your suggested approach...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? <br /><br />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?<br /><br />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?<br /><br />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?<br /><br />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?Gideonhttp://apublicdefender.comnoreply@blogger.comtag:blogger.com,1999:blog-9532013.post-74442653249255048852015-03-02T13:33:47.287-05:002015-03-02T13:33:47.287-05:00I agree with Professor Friedman's overall poin...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. <br /><br />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. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-9532013.post-77512511663892395432015-03-02T11:28:46.470-05:002015-03-02T11:28:46.470-05:00Professor Friedman,
What happens under your quasi...Professor Friedman,<br /><br />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?<br /><br />Are the guardian's held in contempt of court?<br /><br />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.)<br /><br />Also, how do you define "very young children" (who are not CC "witnesses")? How would a court make that seemingly arbitrary determination? <br /><br />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"?<br /><br />Given their statements in prior cases, which Justice(s) is(are) most likely to adopt your quasi-witness approach?<br /><br /><br /><br />paulnoreply@blogger.com