tag:blogger.com,1999:blog-9532013.post4992249972073744440..comments2024-03-28T04:12:44.103-04:00Comments on The Confrontation Blog: Thinking past Clark: Make that Due Process demand now! (And what to demand.)Richard D. Friedmanhttp://www.blogger.com/profile/08376534293308240526noreply@blogger.comBlogger15125tag:blogger.com,1999:blog-9532013.post-90085843851734148562020-04-01T19:30:00.277-04:002020-04-01T19:30:00.277-04:00Haloo pak^^
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So, do you believe that the...@ Anonymous @ 4:50 PM<br /><br />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?<br /><br />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.<br /><br />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.paulnoreply@blogger.comtag:blogger.com,1999:blog-9532013.post-58757516505319911422015-03-04T19:45:56.014-05:002015-03-04T19:45:56.014-05:00"and it is not useful to think of the child a..."and it is not useful to think of the child as if he or she were a little version of an adult."<br /><br />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. <br /><br />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.<br /><br />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.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-9532013.post-58714349129339007072015-03-04T18:43:10.386-05:002015-03-04T18:43:10.386-05:00In response to the last anonymous comment:
Of cou...In response to the last anonymous comment:<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />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.Richard D. Friedmanhttps://www.blogger.com/profile/09512800093689534416noreply@blogger.comtag:blogger.com,1999:blog-9532013.post-27908692227032061842015-03-04T16:50:40.812-05:002015-03-04T16:50:40.812-05:00I think that doing an end run around the CC with t...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".<br /><br />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.<br /><br />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. <br /><br />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."Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-9532013.post-21956264915572271992015-03-04T14:57:54.375-05:002015-03-04T14:57:54.375-05:00I'm not sure why Paul keeps calling this a sub...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. <br /><br />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. Richard D. Friedmanhttps://www.blogger.com/profile/09512800093689534416noreply@blogger.comtag:blogger.com,1999:blog-9532013.post-50030973195881292302015-03-04T14:45:51.475-05:002015-03-04T14:45:51.475-05:00@ Anonymous @ 1:29 PM
Are you suggesting that the...@ Anonymous @ 1:29 PM<br /><br />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?<br /><br />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.<br /><br />Please cite the Supreme Court case that you believe most persuasively supports the substantive DP rule proposed by Professor Friedman.paulnoreply@blogger.comtag:blogger.com,1999:blog-9532013.post-77543719025426835172015-03-04T13:29:02.208-05:002015-03-04T13:29:02.208-05:00Waiting until after a defendant has already been c...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).<br /><br />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.<br /><br />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. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-9532013.post-35320040963351553282015-03-04T12:53:39.502-05:002015-03-04T12:53:39.502-05:00The federal government and the states can certainl...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.<br /><br />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.<br /><br />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. <br /><br />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. <br /><br /><br /><br />paulnoreply@blogger.comtag:blogger.com,1999:blog-9532013.post-30783610130473315232015-03-04T03:09:36.786-05:002015-03-04T03:09:36.786-05:00Well, yes, I think that's very overstated.
Fi...Well, yes, I think that's very overstated.<br /><br />First of all, I'm not sure where the word psychiatric came in; this has nothing to do with that. <br /><br />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.<br /><br />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.<br /><br />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.<br /><br />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; <i>Schlagenhauf v. Holder</i>.<br /><br />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.<br /><br />That's just what appears off the top of my head in the middle of the night.Richard D. Friedmanhttps://www.blogger.com/profile/09512800093689534416noreply@blogger.comtag:blogger.com,1999:blog-9532013.post-12077846522980463132015-03-04T00:50:49.978-05:002015-03-04T00:50:49.978-05:00At the risk of overstatement,there is no possibili...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.<br /><br />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.<br /><br />The child victim (and his/her guardian) has (have) a fundamental right not to be subjected to an involuntary mental examination. <br /><br />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.paulnoreply@blogger.comtag:blogger.com,1999:blog-9532013.post-937553923493879832015-03-03T23:41:43.173-05:002015-03-03T23:41:43.173-05:00There is a line of Supreme Court cases that speaks...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, <i>Ohio v. Clark</i> might be a very good cite. Richard D. Friedmanhttps://www.blogger.com/profile/09512800093689534416noreply@blogger.comtag:blogger.com,1999:blog-9532013.post-21644863756943789702015-03-03T23:29:32.400-05:002015-03-03T23:29:32.400-05:00And what Supreme Court case(s) would you cite to t...And what Supreme Court case(s) would you cite to the trial court in support of your proposed substantive due process rule?pailnoreply@blogger.com