Thursday, September 20, 2007
A view of Crawford from a Massachusetts judge
A Massachusetts judge, Davd Lowy, and Katherine Bowles Dudich, who has served as a law clerk for his court, recently published an article titled After Crawford: Using the Confrontation Clause in Massachusetts Courts, 12 Suffolk J. Trial & App. Advoc. 1 (2007). The article was brought to my attention by a recent law school graduate who worked on it and who suggested that I post a link to it, on the thought that it might be helpful to lawyers and judges, especially but not exclusively in Massachusetts. I am happy to do so, because I agree that the article may be useful -- but posting of course does not indicate endorsement, and there are in fact aspects of the piece with which I disagree.
Wednesday, September 12, 2007
Conflict deepens on expert evidence
I have already commented on issues raised by expert evidence in several posts. See The Not-for-the-Truth End Run; The Expertise End Run and People v. Goldstein; and The Expert Opinion Problem. One of the recurrent issues is whether a statement that is testimonial in nature may be introduced against an accused, notwithstanding the absence of an opportunity for cross-examination, on the ground that it is admitted only in support of an expert’s opinion. As the Goldstein case, from the New York Court of Appeals, made clear, when the statement supports the expert opinion only if it is true, this theory is a sham, and to countenance it allows the expert opinion to be used as a conduit for the admission of testimony that has not been subjected to confrontation.
Courts nevertheless continue to adopt this theory. A recent example is Szymanski v. State, 2007 WL 2428508 (Wyo. 2007). In proving that a fire was the result of arson, the state offered the testimony of a fire inspector to a statement made to him the night of the fire by the tenant of the apartment in which the fire was set. In the statement, the tenant, who died before trial of unrelated causes, described the condition of the apartment before she left it that evening. The state supreme court forthrightly held that this statement, which was made after the fire had been extinguished and as part of an investigation into a possible crime, was testimonial. (One would not guess this from West's headnotes to the case.) Nevertheless, the court affirmed the trial court's decision to admit the evidence not for the truth of the matter asserted "but only to show what the inspector did and what information he relied upon in forming the opinion that the fire was intentionally set by human hand."
The veneer here is awfully thin. What difference does it make "what the inspector did"? And it is obvious that the statement can help support the expert's opinion only if it is deemed to be true. It seems to me undeniable that the state was asking the jury to accept the tenant's unconfronted statement as the truth, and that if the jury did not do that the statement had no substantial value for the prosecution. This is what I have called the "expertise end run", meaning that the supposed need to allow the expert to provide the basis for his opinions is being used as a means of avoiding the Confrontation Clause.
If the logic of this case holds, one can also imagine rape counselors, domestic violence counselors, and child abuse counselors testifying that in their opinion a crime had been committed, and that one of the bases on which they draw that conclusion is the statement made to them by the victim, who has chosen not to come to court.
It is clear that, to prevent serious undermining of the confrontation right, the Supreme Court should rule that when a statement supports an expert opinion only if it is true, then admitting the statement for purposes of supporting the expert's opinion is equivalent to admitting it for the truth of what it asserts. The conflict among the states on this issue is clear and well established. I hope the Supreme Court resolves it soon.
More generally, I believe the Court needs to impose constraints, as a matter of constitutional law, on a court's ability to admit evidence of a testimonial statement for some reason other than the truth of what it asserts. The problem the Court must come to grips with is that if there are no such constraints then lower courts will be utterly free to exercise creativity in devising flimsy not-for-the-truth theories on which testimonial statements may be admitted. Cf. David Crump, On the Uses of Irrelevant Evidence, 34 Houston L. Rev. 1 (1997) (arguing that evidence is always relevant to a given proposition). Limiting instructions will provide no genuine protection for the confrontation right. I will not explore in detail here what constraints the Court should impose; that is a subject worthy of careful thought. But here is a first crack. It seems that a court considering the confrontation issue must first ask whether the testimonial statement has substantial value in proving the proposition for which it is supposedly offered without respect to whether the statement is true or not. If the answer is negative -- as it is in the Szymanski-Goldstein type of case -- then that proposition does not offer a basis for admitting the statement. If the answer is affirmative, then the court must assess whether that value warrants the risk that the jury will, notwithstanding an instruction to the contrary, use the statement to prove the truth of what it asserts.
In a new article, Expert Evidence and the Confrontation Clause after Crawford v. Washington, 15 J. L. & Policy (791), Prof. Jennifer Mnookin lucidly critiques the expertise end run and several other strategems under which expert witnesses have often been used as conduits to admit statements that were made by others and that should be regarded as testimonial. These include treating the business records exception to the hearsay rule as an exception to the rule of Crawford; treating cross-examination of the expert as an adequate substitute for cross-examination of the declarant whose statement comes in through the expert; emphasizing the supposed impracticality of holding the evidence inadmissible in the absence of the declarant; and distinguishing between factual findings and opinions, and holding only the latter to be testimonial. Her perspective suggests the need for the Supreme Court to step into this realm soon:
A holding that for this reason the Confrontation Clause does not apply to these certificates would not, in my view, do terrible violence to the Clause. On the other hand, the certificates almost certainly were prepared with an evidentiary use in mind, with the idea that they would likely be used in some prosecution, and as a matter of principle that should be enough to characterize them as testimonial. Also, if we are going to draw a boundary of the sort favored by Prof. Mnookin, we have to be careful just where to draw it. Sometimes, especially in the domestic violence context, a victim makes a testimonial statement after one alleged criminal act, and that statement is offered with respect to a subsequent act. I think the confrontation right should still apply (though it will not always matter; if the second act is homicide; it may be that the accused forfeited the right by rendering the witness unavailable). So instead of speaking only of a specific criminal act, it would probably be better to speak also of a series of acts.
But in any event, I believe that in this context we can avoid impractical results without drawing a line of the sort advocated by Prof. Mnookin, because the whole issue is constitutionally unnecessary. Nothing in the Constitution requires the state to prove that the appliance was recently tested. If a witness testifies to the time something occurred, having noted the time on a clock shortly before or after the event, there is no precondition that evidence of the clock’s accuracy be presented, much less that it be presented in a given manner. As with the clock, so with other instruments: If the state wanted, it could just let a witness testify to the evidence generated by the appliance in question, and leave it to the defense, if it wished, to raise questions about accuracy. And if the state wished, it could require the testing agency to furnish the certificate of accuracy to the defense. If the agency complied with this requirement, and the certificate appeared in order, the defense ordinarily would have no incentive to raise the issue before the jury. But if the agency failed to comply, or if on the face of the certificate the test was untimely or the appliance was defective, that would be a tip-off to the defense and to the court that a challenge to accuracy might be worthwhile; there would of course be no Confrontation Clause objection to the defense offering either a certificate or evidence of failure to furnish one.
The second problem addressed by Prof. Mnookin at the end of her article concerns autopsy reports in homicide cases in which the defendant is not apprehended for many years after the crime. She suggests that in such a case it would be tolerable for a "substitute expert" to testify to the report. I disagree. First, let’s note that the problem is a subset of a much more general problem, of witnesses who are no longer around to testify in delayed prosecutions. And in this case, the prosecution, knowing of the potential problem, can usually protect its interests quite well. If, as will usually be the case, there is a relatively small group of prime suspects, the prosecution can give notice to each of them and hold a deposition, offering to pay attorneys’ fees. (Prof. Mnookin briefly considers a "public deposition"; whether, and under what conditions, public notice could suffice in the relatively rare case in which the eventual defendant is not identified as a suspect soon after the autopsy is an interesting question. A deposition of this sort, taken of an elderly victim rather than of an expert and with counsel appointed to represent the eventual defendant, was approved in an unpublished case decided a couple of weeks after Crawford, People v. Wilkey, 2004 WL 576659 (Mich. Ct. Apps. 2004).) Also, much of the evidentiary value of an autopsy report can be gained by high-resolution video recording of the autopsy. So long as the video can be authenticated – which should be simpler than, say, authenticating DNA samples years after the fact – a pathologist would be able to testify in court on the basis of what is apparent from the video (what she sees rather than what she has been told), and there would be no confrontation problem, or even hearsay problem, at all.
There is no doubt that in the area of expert testimony, as in other areas, careful protection of the confrontation right increases the cost of prosecution. But of course that is true generally of the confrontation right, and all the rights on which our system of criminal justice is built; one could devise a much cheaper system, but it would not be a satisfactory one. Because the confrontation right was so limp in the years before Crawford, the costs of protecting it properly are often very salient, and that is probably particularly true with respect to expert evidence, which involves recurrent practices and professionally qualified (and often expensive) witnesses. With proper preparation and the creation of appropriate procedures, the judicial system can maintain rigorous adherence to the confrontation right in this area without incurring undue expense – and thus can avoid allowing expert evidence to be a force that erodes a sturdy framework of confrontation law.
Courts nevertheless continue to adopt this theory. A recent example is Szymanski v. State, 2007 WL 2428508 (Wyo. 2007). In proving that a fire was the result of arson, the state offered the testimony of a fire inspector to a statement made to him the night of the fire by the tenant of the apartment in which the fire was set. In the statement, the tenant, who died before trial of unrelated causes, described the condition of the apartment before she left it that evening. The state supreme court forthrightly held that this statement, which was made after the fire had been extinguished and as part of an investigation into a possible crime, was testimonial. (One would not guess this from West's headnotes to the case.) Nevertheless, the court affirmed the trial court's decision to admit the evidence not for the truth of the matter asserted "but only to show what the inspector did and what information he relied upon in forming the opinion that the fire was intentionally set by human hand."
The veneer here is awfully thin. What difference does it make "what the inspector did"? And it is obvious that the statement can help support the expert's opinion only if it is deemed to be true. It seems to me undeniable that the state was asking the jury to accept the tenant's unconfronted statement as the truth, and that if the jury did not do that the statement had no substantial value for the prosecution. This is what I have called the "expertise end run", meaning that the supposed need to allow the expert to provide the basis for his opinions is being used as a means of avoiding the Confrontation Clause.
If the logic of this case holds, one can also imagine rape counselors, domestic violence counselors, and child abuse counselors testifying that in their opinion a crime had been committed, and that one of the bases on which they draw that conclusion is the statement made to them by the victim, who has chosen not to come to court.
It is clear that, to prevent serious undermining of the confrontation right, the Supreme Court should rule that when a statement supports an expert opinion only if it is true, then admitting the statement for purposes of supporting the expert's opinion is equivalent to admitting it for the truth of what it asserts. The conflict among the states on this issue is clear and well established. I hope the Supreme Court resolves it soon.
More generally, I believe the Court needs to impose constraints, as a matter of constitutional law, on a court's ability to admit evidence of a testimonial statement for some reason other than the truth of what it asserts. The problem the Court must come to grips with is that if there are no such constraints then lower courts will be utterly free to exercise creativity in devising flimsy not-for-the-truth theories on which testimonial statements may be admitted. Cf. David Crump, On the Uses of Irrelevant Evidence, 34 Houston L. Rev. 1 (1997) (arguing that evidence is always relevant to a given proposition). Limiting instructions will provide no genuine protection for the confrontation right. I will not explore in detail here what constraints the Court should impose; that is a subject worthy of careful thought. But here is a first crack. It seems that a court considering the confrontation issue must first ask whether the testimonial statement has substantial value in proving the proposition for which it is supposedly offered without respect to whether the statement is true or not. If the answer is negative -- as it is in the Szymanski-Goldstein type of case -- then that proposition does not offer a basis for admitting the statement. If the answer is affirmative, then the court must assess whether that value warrants the risk that the jury will, notwithstanding an instruction to the contrary, use the statement to prove the truth of what it asserts.
In a new article, Expert Evidence and the Confrontation Clause after Crawford v. Washington, 15 J. L. & Policy (791), Prof. Jennifer Mnookin lucidly critiques the expertise end run and several other strategems under which expert witnesses have often been used as conduits to admit statements that were made by others and that should be regarded as testimonial. These include treating the business records exception to the hearsay rule as an exception to the rule of Crawford; treating cross-examination of the expert as an adequate substitute for cross-examination of the declarant whose statement comes in through the expert; emphasizing the supposed impracticality of holding the evidence inadmissible in the absence of the declarant; and distinguishing between factual findings and opinions, and holding only the latter to be testimonial. Her perspective suggests the need for the Supreme Court to step into this realm soon:
In the last part of her article, though, in focusing on two particular problems, Prof. Mnookin draws back somewhat. One of these problems is that of certificates routinely performed on certain frequently used appliances, such as speed radar guns and breathalyzer kits, to ensure that they are in good working order. If, during the period for which a given test is supposed to validate that the appliance is working properly, it generates evidence supporting prosecution of a crime, must the technician who tested the appliance and prepared the report testify at trial? Courts resist the conclusion; the costs of requiring testimony are substantial, and there may be little likely benefit. Those considerations are present with respect to many routine test reports, but they do not in themselves provide a principled argument for removing the reports from the Confrontation Clause. In the case of the certificates being considered here, though, there is a principled argument: As Prof. Mnookin points out, these certificates are not prepared with a "specific criminal act" in mind.There are already sufficiently large numbers of cases relying upon precisely
these arguments that some courts are, unfortunately, beginning not even to argue
these points with care, instead merely relying on the allegedly persuasive
authority of other courts’ reasoning. If this trend continues, it will have a
real cost: a too-thoughtless pragmatism will have trumped principled application
of the underlying principle at stake in Crawford.
A holding that for this reason the Confrontation Clause does not apply to these certificates would not, in my view, do terrible violence to the Clause. On the other hand, the certificates almost certainly were prepared with an evidentiary use in mind, with the idea that they would likely be used in some prosecution, and as a matter of principle that should be enough to characterize them as testimonial. Also, if we are going to draw a boundary of the sort favored by Prof. Mnookin, we have to be careful just where to draw it. Sometimes, especially in the domestic violence context, a victim makes a testimonial statement after one alleged criminal act, and that statement is offered with respect to a subsequent act. I think the confrontation right should still apply (though it will not always matter; if the second act is homicide; it may be that the accused forfeited the right by rendering the witness unavailable). So instead of speaking only of a specific criminal act, it would probably be better to speak also of a series of acts.
But in any event, I believe that in this context we can avoid impractical results without drawing a line of the sort advocated by Prof. Mnookin, because the whole issue is constitutionally unnecessary. Nothing in the Constitution requires the state to prove that the appliance was recently tested. If a witness testifies to the time something occurred, having noted the time on a clock shortly before or after the event, there is no precondition that evidence of the clock’s accuracy be presented, much less that it be presented in a given manner. As with the clock, so with other instruments: If the state wanted, it could just let a witness testify to the evidence generated by the appliance in question, and leave it to the defense, if it wished, to raise questions about accuracy. And if the state wished, it could require the testing agency to furnish the certificate of accuracy to the defense. If the agency complied with this requirement, and the certificate appeared in order, the defense ordinarily would have no incentive to raise the issue before the jury. But if the agency failed to comply, or if on the face of the certificate the test was untimely or the appliance was defective, that would be a tip-off to the defense and to the court that a challenge to accuracy might be worthwhile; there would of course be no Confrontation Clause objection to the defense offering either a certificate or evidence of failure to furnish one.
The second problem addressed by Prof. Mnookin at the end of her article concerns autopsy reports in homicide cases in which the defendant is not apprehended for many years after the crime. She suggests that in such a case it would be tolerable for a "substitute expert" to testify to the report. I disagree. First, let’s note that the problem is a subset of a much more general problem, of witnesses who are no longer around to testify in delayed prosecutions. And in this case, the prosecution, knowing of the potential problem, can usually protect its interests quite well. If, as will usually be the case, there is a relatively small group of prime suspects, the prosecution can give notice to each of them and hold a deposition, offering to pay attorneys’ fees. (Prof. Mnookin briefly considers a "public deposition"; whether, and under what conditions, public notice could suffice in the relatively rare case in which the eventual defendant is not identified as a suspect soon after the autopsy is an interesting question. A deposition of this sort, taken of an elderly victim rather than of an expert and with counsel appointed to represent the eventual defendant, was approved in an unpublished case decided a couple of weeks after Crawford, People v. Wilkey, 2004 WL 576659 (Mich. Ct. Apps. 2004).) Also, much of the evidentiary value of an autopsy report can be gained by high-resolution video recording of the autopsy. So long as the video can be authenticated – which should be simpler than, say, authenticating DNA samples years after the fact – a pathologist would be able to testify in court on the basis of what is apparent from the video (what she sees rather than what she has been told), and there would be no confrontation problem, or even hearsay problem, at all.
There is no doubt that in the area of expert testimony, as in other areas, careful protection of the confrontation right increases the cost of prosecution. But of course that is true generally of the confrontation right, and all the rights on which our system of criminal justice is built; one could devise a much cheaper system, but it would not be a satisfactory one. Because the confrontation right was so limp in the years before Crawford, the costs of protecting it properly are often very salient, and that is probably particularly true with respect to expert evidence, which involves recurrent practices and professionally qualified (and often expensive) witnesses. With proper preparation and the creation of appropriate procedures, the judicial system can maintain rigorous adherence to the confrontation right in this area without incurring undue expense – and thus can avoid allowing expert evidence to be a force that erodes a sturdy framework of confrontation law.
Friday, September 07, 2007
Child Witnesses on the Academic and Judicial Front
Some of the most perplexing issues related to the Confrontation Clause involve statements by children. The Indiana Law Journal has recently published a symposium on the topic, under the sponsorship of Prof. Aviva Orenstein. Her introductory essay, Children as Witnesses: A Symposium on Child Competence and the Accused's Right to Confront Child Witnesses, 82 Ind. L.J. 909 (2007), summarizes the other pieces. At a glance, I can see that there is a good deal with which I agree and a good deal with which I disagree.
A recent opinion in the area is State v. Krasky, 2007 WL 2264711 (Minn. Aug. 9, 2007). This is another in a series of cases in which some courts have treated as non-testimonial an accusation of abuse made by a child to a care-giver, such as a nurse or social worker, a considerable time after the alleged incident. A few points about the case warrant mention and raise other issues.
1. The “purpose” evasion
The majority of the Minnesota Supreme Court reached this conclusion notwithstanding the fact that a police report indicated that a police officer and a child protection worker jointly concluded that “the best way to proceed with the investigation was to have [the Child Resource Center where the child made the accusation to a nurse] do an interview with [the child] along with a medical exam.” Picking up on the “primary purpose” language of Davis v. Washington, 126 S.Ct. 2266 (2006), and extending it beyond the emergency situation, the court deemed the primary purpose of the interview to be protecting the health and welfare of the purported victim. In my view, this result highlights one of the serious problems of a test depending on the primary purpose of the questioner. True, some courts have shown deftness in manipulating what I believe is the proper test, depending on the reasonable anticipation of the speaker. But a questioner-purpose test is much more easily manipulable. First, it allows the questioner herself to portray her purpose in a way supporting a conclusion that the accusation is not testimonial. Second, as in this case, such a test allows a routine in which accusations made to agents without law enforcement responsibility to be deemed non-testimonial, no matter how predictable it may be that the agent will relay the accusation to court if the accuser does not appear. Indeed, given the approach in Krasky, I am not sure what would prevent a state from referring all alleged crime victims to a victims’ counselor who would then take the accusation and transmit it to court if the victim does not testify there. So imagine this conversation between a counselor and an adult who has allegedly been the victim of a crime:
2. Davis leeway as limited to emergencies.
Justice Page, with one of his colleagues, dissented in Krasky, which is interesting because he had written one of the prior decisions holding a child’s accusation in largely similar circumstances to be non-testimonial – but he regarded Davis as calling for a different result, because the statement was not made during the course of an ongoing emergency.
3. Non-testimonial statement, incompetent witness.
The child was apparently incompetent to testify at trial. This also was a basis for the Page dissent. But the matter is quite complex, in my view. Obviously, the combination of holdings that the prosecution may introduce the child’s out-of-court statement and that the defense cannot call the child to the stand places the accused in a theoretically disadvantageous position: The statement will be admitted against him and he has no way of examining the declarant.
How big a problem is this? As a practical matter, it is unlikely (under present procedures) that if the statement is admitted against the accused he would choose to call the declarant to the stand if he could; that doesn’t happen often, for reasons I have explored before. (See, e.g., these posts: Pending Cert Petitions, Shifting the Burden, Take 2, and Shifting the Burden.) Moreover, the accused is in a similarly disadvantageous position whenever a statement by an unavailable declarant is admitted against the accused, and if the statement is in fact non-testimonial (as the majority held it was here) there is no confrontation problem. So if we assume that the statement was not testimonial in nature, I don’t believe the extra consideration that the defense could not call the child to the stand is particularly worrisome.
4. Apparently testimonial statement, incompetent witness
But now suppose, along with Justice Page, that the out-of-court statement would be characterized as testimonial in nature if the child were a competent witness – but in fact she is incompetent to testify at trial. What are the consequences?
In the 18th century, before R. v. Brasier, 1 Leach 199, 168 E.R. 202 (K.B. 1779), changed the rules, young children were categorically incompetent to testify at trial, and their out-of-court accusations were sometimes admitted. (I discussed this fact briefly in my reply brief in Hammon, and Tom Lyon and Raymond LaMagna explore it at length in their contribution in the Indiana symposium, The History of Children’s Hearsay, from Old Bailey to Post-Davis, 82 Ind. L.J. 1029 (2007)). I don’t think this history is a good guidepost for decision today. Those old cases admitted the out-of-court statements as the best evidence available, but I believe they were accommodating to, and effectively avoiding and undercutting, an overly active rule of incompetence. That is, most of these children probably should have been deemed to be competent witnesses (or at least to be heard; see below). Admitting the out-of-court statement was a way around the rule of incompetence, though with the serious problem that the statement was not made under the conditions required for testimony.
In resolving the problem, I think it is useful to distinguish between two different levels of incompetence.
a. The child who is capable of testifying, but not in a satisfactory manner
On one level, the child is sufficiently capable of understanding the nature of her statement for it to be considered testimonial, but she lacks a sufficient sense of obligation to tell the truth for her testimony to be accepted in court. Thus, the out-of-court statement is clearly testimonial in nature, but the child is not capable of testifying in court in a satisfactory manner.
In this setting, it is clear that the out-of-court testimonial statement should not be admitted. Out-of-court testimony, without oath or cross-examination, is clearly inferior to in-court, testimony, and if the child’s testimony in court should not be admitted because she is incompetent to give it then a fortiori neither should her out-of-court testimony be admitted.
Now, in passing I’ll mention that I believe there is a plausible argument that the child should not be disqualified from testifying in court simply because she does not demonstrate a sense of obligation to tell the truth. We know that many witnesses, though taking an oath, are strongly motivated to lie and do lie quite deliberately, and we nevertheless admit their testimony – as we admit all sorts of non-testimonial evidence – for what it is worth; even if the evidence is not particularly reliable, it may be a net benefit to the truth-determining process. Indeed, as I understand it, the tradition in some Continental courts is that the accused does not testify under oath but nevertheless he tells his story. And this was the practice in common law courts for centuries – this is what John Langbein called the “Accused Speaks” model, The Historical Origins of the Privilege Against Self-Incrimination at Common Law, 92 Mich. L. Rev. 1047 (1994), which prevailed before defense lawyers tended to keep their clients quiet and before criminal defendants were allowed to testify under oath, beginning in the latter part of the 19th century. In the case of a child witness, administering the oath or an oath-like procedure might be considered an attempt to remind the child of the obligation to tell the truth and to reveal the child’s inclination to do so – and arguably that is all, so that any defects the child may have on this score should not prevent her from telling her story in court.
Putting this thought aside, though, the narrower point made here is clear: If a child makes an out-of-out testimonial statement and does not testify in court, the presumptive violation of the Confrontation Clause is not excused on the basis that she would not have been allowed to testify in court anyway because she lacks a sufficient obligation to tell the truth.
b. The child who is incapable of testifying
Now consider a deeper level of incompetence – the child is (or a child of ordinary understanding of her age would be) so insufficiently developed that the statement should not be deemed testimonial at all. Note that characterizing the child in this way would not be saying that she is acting as a witness but without satisfying the conditions for a proper witness; rather, the argument would be that she is just not capable of engaging in the kind of activity – witnessing – covered by the confrontation right.
I will not attempt to resolve here what kind and degree of development would be necessary for a person to be considered capable of witnessing. It may be that it is sufficient if the child understands that her statements are capable of causing adverse consequences to another person – or put another way, if the child has such limited understanding that she does not realize this, she should not be considered to be witnessing. I think it’s also worthwhile thinking about the suggestion made by my colleague Sherman Clark, An Accuser-Obligation Approach to the Confrontation Clause, 81 Neb. L. Rev. 1258, 1280-85 (2003), that in determining who is a witness within the meaning of the Confrontation Clause moral as well as cognitive development must be taken into account.
In his contribution to the Indiana symposium, Testing the Testimonial Concept and Exceptions to Confrontation: “A Little Child Shall Lead Them”, 82 Ind. L.J. 917 (2007), Bob Mosteller vigorously disagrees with the idea that some children should be considered so undeveloped that they are deemed out of the Confrontation Clause altogether. He seems to acknowledge that in one case that I have used to make this argument, State v. Webb, 779 P.2d 1108, 1109 (Utah 1989), in which an 18-month-old child said, “Ow bum daddy,” the argument “may be well taken.” But in the more usual case, he says, the child uses “purposeful communicative abilities.” I acknowledge that Webb is an unusual case, but that doesn’t eliminate the issue. I suppose that the child in Webb had and was using “purposeful communicative abilities.” More fundamentally, it strikes me as question-begging to assume that the use of such abilities renders the statement testimonial. Not all purposeful communication is testimonial, of course; the question becomes what additional conditions are required to make it so, and I believe it is at least plausible to hold that membership in the human species is not enough to qualify the maker of a statement as a witness. (If a trained bloodhound’s bark were determined to be purposeful communication to the effect, “This guy here is the source of the smell on that shirt you put under my nose a while back,” that would not render the dog a witness within the meaning of the Confrontation Clause.)
So at least arguably, I believe, in some cases a child who makes an out-of-court statement should not be considered a witness at all for purposes of the confrontation right. Now, this possibility might seem to lead to absurd results, because it would mean that the child’s incapacity is an argument favoring admissibility of her statement. I have a couple of responses.
First, I’m not sure that the result is indeed absurd on its face – let’s bear in mind that the confrontation right is not about sifting out good from bad evidence but about protecting the conditions for giving testimony.
Second, even if the confrontation right does not apply, on the ground that the child was not acting as a witness, this does not necessarily mean that the accused would not have a right to examine the child if the child’s statement were admitted. Let’s say the prosecution introduces blood that it claims came from the accused, or a pistol that is arguably the murder weapon, or a document the age of which is in question. The defendant has a right to examine this evidence, and it should be allowed to do reasonable experiments on it. I think the same principle ought to apply if the prosecution wishes to introduce an out-of-court accusation made by a child who is not deemed competent to be a witness. That is, the accused ought to have a right, recognized as a matter of due process, to examine the child – but I’m using “examine” in a non-technical sense. The child is not acting as a witness but is nevertheless a source of evidence, and so the defense has a right to examine her and try to generate information suggesting that the evidence she yields does not have the value the prosecution ascribes to it. In the case of a pistol, the principal examiner would be a ballistics expert; in the case of a child, it might be a child psychologist. Much of the examination would consist of questions, but it would not be cross-examination as we know it. Furthermore, in this context the accused would not generally have a right to be in the presence of the child. But presumably, the accused would have the right to have the encounter video-taped.
So I am suggesting that even though the Confrontation Clause does not apply in this setting, the accused may still have a constitutional right to have some sort of examination of the child. Does this undercut the clean principle (for which I’ve advocated) that if a statement is not testimonial the confrontation right does not apply? I don’t believe so. I’ve always thought that in particularly pressing cases the accused might have a due process right to demand production for cross-examination of the declarant of a non-testimonial statement, if the declarant is available. The procedure being discussed now would apply only if the child was available; the due process demand is particularly compelling in the context being examined here, in which the declarant is incompetent to be a witness; and the prescribed procedure is not even cross-examination.
Conceivably, the child could give her account, and the examination on behalf of the defense could occur, at trial. This still would not make the event testimonial if the child is deemed incapable of witnessing; this would be the counterpart of performing an experiment in the courtroom.
5. Age adjustment?
Even if a child is considered competent to be a witness within the meaning of the Confrontation Clause, there is a separate issue as to whether the child’s level of understanding should be taken into account in determining whether the particular statement is testimonial. This is a tricky question. I’m not entirely happy with a doctrine that asks about the expectations of a reasonable person when the speaker is in fact a young child. But neither does it seem satisfactory to break down the objectivity of the inquiry in this particular context – all the way by asking about the subjective anticipations of this child, or with a halfway measure such as asking about the anticipation of an eight-year-old child of ordinary understanding. Perhaps the best resolution is to consider the particular child subjectively in deciding whether she is capable of engaging in witnessing but to apply a straight objective test – referring to the standard “reasonable person” in determining whether the particular statement is testimonial. Readers’ thoughts on this question, as well as on any of the other difficult matters raised here, are of course welcome.
A recent opinion in the area is State v. Krasky, 2007 WL 2264711 (Minn. Aug. 9, 2007). This is another in a series of cases in which some courts have treated as non-testimonial an accusation of abuse made by a child to a care-giver, such as a nurse or social worker, a considerable time after the alleged incident. A few points about the case warrant mention and raise other issues.
1. The “purpose” evasion
The majority of the Minnesota Supreme Court reached this conclusion notwithstanding the fact that a police report indicated that a police officer and a child protection worker jointly concluded that “the best way to proceed with the investigation was to have [the Child Resource Center where the child made the accusation to a nurse] do an interview with [the child] along with a medical exam.” Picking up on the “primary purpose” language of Davis v. Washington, 126 S.Ct. 2266 (2006), and extending it beyond the emergency situation, the court deemed the primary purpose of the interview to be protecting the health and welfare of the purported victim. In my view, this result highlights one of the serious problems of a test depending on the primary purpose of the questioner. True, some courts have shown deftness in manipulating what I believe is the proper test, depending on the reasonable anticipation of the speaker. But a questioner-purpose test is much more easily manipulable. First, it allows the questioner herself to portray her purpose in a way supporting a conclusion that the accusation is not testimonial. Second, as in this case, such a test allows a routine in which accusations made to agents without law enforcement responsibility to be deemed non-testimonial, no matter how predictable it may be that the agent will relay the accusation to court if the accuser does not appear. Indeed, given the approach in Krasky, I am not sure what would prevent a state from referring all alleged crime victims to a victims’ counselor who would then take the accusation and transmit it to court if the victim does not testify there. So imagine this conversation between a counselor and an adult who has allegedly been the victim of a crime:
Counselor: Officer Tuesday has referred you to me so that I can help you deal with the considerable trauma that crime victims often suffer. I know you already told her about this incident, but for me to assist you, it is important that I hear from you exactly what happened to you, and who did it to you. If you don’t mind, I am going to videotape our session so that I can consult later with my colleagues about it.That sounds to me as if we are entering death-of-the-confrontation-right territory.
Alleged Victim: No problem. And thanks so much. But tell me. If I understand correctly from TV shows I’ve seen, if I choose not to go to court, you could testify yourself and show the videotape. Right?
C: That’s true. Of course, that’s not our primary purpose in holding this session.
AV: Whatever. I just don’t want to be in the same room as that guy, or look at his face, or have to answer a lot of questions by his lawyer.
C: No, you wouldn’t have to.
2. Davis leeway as limited to emergencies.
Justice Page, with one of his colleagues, dissented in Krasky, which is interesting because he had written one of the prior decisions holding a child’s accusation in largely similar circumstances to be non-testimonial – but he regarded Davis as calling for a different result, because the statement was not made during the course of an ongoing emergency.
3. Non-testimonial statement, incompetent witness.
The child was apparently incompetent to testify at trial. This also was a basis for the Page dissent. But the matter is quite complex, in my view. Obviously, the combination of holdings that the prosecution may introduce the child’s out-of-court statement and that the defense cannot call the child to the stand places the accused in a theoretically disadvantageous position: The statement will be admitted against him and he has no way of examining the declarant.
How big a problem is this? As a practical matter, it is unlikely (under present procedures) that if the statement is admitted against the accused he would choose to call the declarant to the stand if he could; that doesn’t happen often, for reasons I have explored before. (See, e.g., these posts: Pending Cert Petitions, Shifting the Burden, Take 2, and Shifting the Burden.) Moreover, the accused is in a similarly disadvantageous position whenever a statement by an unavailable declarant is admitted against the accused, and if the statement is in fact non-testimonial (as the majority held it was here) there is no confrontation problem. So if we assume that the statement was not testimonial in nature, I don’t believe the extra consideration that the defense could not call the child to the stand is particularly worrisome.
4. Apparently testimonial statement, incompetent witness
But now suppose, along with Justice Page, that the out-of-court statement would be characterized as testimonial in nature if the child were a competent witness – but in fact she is incompetent to testify at trial. What are the consequences?
In the 18th century, before R. v. Brasier, 1 Leach 199, 168 E.R. 202 (K.B. 1779), changed the rules, young children were categorically incompetent to testify at trial, and their out-of-court accusations were sometimes admitted. (I discussed this fact briefly in my reply brief in Hammon, and Tom Lyon and Raymond LaMagna explore it at length in their contribution in the Indiana symposium, The History of Children’s Hearsay, from Old Bailey to Post-Davis, 82 Ind. L.J. 1029 (2007)). I don’t think this history is a good guidepost for decision today. Those old cases admitted the out-of-court statements as the best evidence available, but I believe they were accommodating to, and effectively avoiding and undercutting, an overly active rule of incompetence. That is, most of these children probably should have been deemed to be competent witnesses (or at least to be heard; see below). Admitting the out-of-court statement was a way around the rule of incompetence, though with the serious problem that the statement was not made under the conditions required for testimony.
In resolving the problem, I think it is useful to distinguish between two different levels of incompetence.
a. The child who is capable of testifying, but not in a satisfactory manner
On one level, the child is sufficiently capable of understanding the nature of her statement for it to be considered testimonial, but she lacks a sufficient sense of obligation to tell the truth for her testimony to be accepted in court. Thus, the out-of-court statement is clearly testimonial in nature, but the child is not capable of testifying in court in a satisfactory manner.
In this setting, it is clear that the out-of-court testimonial statement should not be admitted. Out-of-court testimony, without oath or cross-examination, is clearly inferior to in-court, testimony, and if the child’s testimony in court should not be admitted because she is incompetent to give it then a fortiori neither should her out-of-court testimony be admitted.
Now, in passing I’ll mention that I believe there is a plausible argument that the child should not be disqualified from testifying in court simply because she does not demonstrate a sense of obligation to tell the truth. We know that many witnesses, though taking an oath, are strongly motivated to lie and do lie quite deliberately, and we nevertheless admit their testimony – as we admit all sorts of non-testimonial evidence – for what it is worth; even if the evidence is not particularly reliable, it may be a net benefit to the truth-determining process. Indeed, as I understand it, the tradition in some Continental courts is that the accused does not testify under oath but nevertheless he tells his story. And this was the practice in common law courts for centuries – this is what John Langbein called the “Accused Speaks” model, The Historical Origins of the Privilege Against Self-Incrimination at Common Law, 92 Mich. L. Rev. 1047 (1994), which prevailed before defense lawyers tended to keep their clients quiet and before criminal defendants were allowed to testify under oath, beginning in the latter part of the 19th century. In the case of a child witness, administering the oath or an oath-like procedure might be considered an attempt to remind the child of the obligation to tell the truth and to reveal the child’s inclination to do so – and arguably that is all, so that any defects the child may have on this score should not prevent her from telling her story in court.
Putting this thought aside, though, the narrower point made here is clear: If a child makes an out-of-out testimonial statement and does not testify in court, the presumptive violation of the Confrontation Clause is not excused on the basis that she would not have been allowed to testify in court anyway because she lacks a sufficient obligation to tell the truth.
b. The child who is incapable of testifying
Now consider a deeper level of incompetence – the child is (or a child of ordinary understanding of her age would be) so insufficiently developed that the statement should not be deemed testimonial at all. Note that characterizing the child in this way would not be saying that she is acting as a witness but without satisfying the conditions for a proper witness; rather, the argument would be that she is just not capable of engaging in the kind of activity – witnessing – covered by the confrontation right.
I will not attempt to resolve here what kind and degree of development would be necessary for a person to be considered capable of witnessing. It may be that it is sufficient if the child understands that her statements are capable of causing adverse consequences to another person – or put another way, if the child has such limited understanding that she does not realize this, she should not be considered to be witnessing. I think it’s also worthwhile thinking about the suggestion made by my colleague Sherman Clark, An Accuser-Obligation Approach to the Confrontation Clause, 81 Neb. L. Rev. 1258, 1280-85 (2003), that in determining who is a witness within the meaning of the Confrontation Clause moral as well as cognitive development must be taken into account.
In his contribution to the Indiana symposium, Testing the Testimonial Concept and Exceptions to Confrontation: “A Little Child Shall Lead Them”, 82 Ind. L.J. 917 (2007), Bob Mosteller vigorously disagrees with the idea that some children should be considered so undeveloped that they are deemed out of the Confrontation Clause altogether. He seems to acknowledge that in one case that I have used to make this argument, State v. Webb, 779 P.2d 1108, 1109 (Utah 1989), in which an 18-month-old child said, “Ow bum daddy,” the argument “may be well taken.” But in the more usual case, he says, the child uses “purposeful communicative abilities.” I acknowledge that Webb is an unusual case, but that doesn’t eliminate the issue. I suppose that the child in Webb had and was using “purposeful communicative abilities.” More fundamentally, it strikes me as question-begging to assume that the use of such abilities renders the statement testimonial. Not all purposeful communication is testimonial, of course; the question becomes what additional conditions are required to make it so, and I believe it is at least plausible to hold that membership in the human species is not enough to qualify the maker of a statement as a witness. (If a trained bloodhound’s bark were determined to be purposeful communication to the effect, “This guy here is the source of the smell on that shirt you put under my nose a while back,” that would not render the dog a witness within the meaning of the Confrontation Clause.)
So at least arguably, I believe, in some cases a child who makes an out-of-court statement should not be considered a witness at all for purposes of the confrontation right. Now, this possibility might seem to lead to absurd results, because it would mean that the child’s incapacity is an argument favoring admissibility of her statement. I have a couple of responses.
First, I’m not sure that the result is indeed absurd on its face – let’s bear in mind that the confrontation right is not about sifting out good from bad evidence but about protecting the conditions for giving testimony.
Second, even if the confrontation right does not apply, on the ground that the child was not acting as a witness, this does not necessarily mean that the accused would not have a right to examine the child if the child’s statement were admitted. Let’s say the prosecution introduces blood that it claims came from the accused, or a pistol that is arguably the murder weapon, or a document the age of which is in question. The defendant has a right to examine this evidence, and it should be allowed to do reasonable experiments on it. I think the same principle ought to apply if the prosecution wishes to introduce an out-of-court accusation made by a child who is not deemed competent to be a witness. That is, the accused ought to have a right, recognized as a matter of due process, to examine the child – but I’m using “examine” in a non-technical sense. The child is not acting as a witness but is nevertheless a source of evidence, and so the defense has a right to examine her and try to generate information suggesting that the evidence she yields does not have the value the prosecution ascribes to it. In the case of a pistol, the principal examiner would be a ballistics expert; in the case of a child, it might be a child psychologist. Much of the examination would consist of questions, but it would not be cross-examination as we know it. Furthermore, in this context the accused would not generally have a right to be in the presence of the child. But presumably, the accused would have the right to have the encounter video-taped.
So I am suggesting that even though the Confrontation Clause does not apply in this setting, the accused may still have a constitutional right to have some sort of examination of the child. Does this undercut the clean principle (for which I’ve advocated) that if a statement is not testimonial the confrontation right does not apply? I don’t believe so. I’ve always thought that in particularly pressing cases the accused might have a due process right to demand production for cross-examination of the declarant of a non-testimonial statement, if the declarant is available. The procedure being discussed now would apply only if the child was available; the due process demand is particularly compelling in the context being examined here, in which the declarant is incompetent to be a witness; and the prescribed procedure is not even cross-examination.
Conceivably, the child could give her account, and the examination on behalf of the defense could occur, at trial. This still would not make the event testimonial if the child is deemed incapable of witnessing; this would be the counterpart of performing an experiment in the courtroom.
5. Age adjustment?
Even if a child is considered competent to be a witness within the meaning of the Confrontation Clause, there is a separate issue as to whether the child’s level of understanding should be taken into account in determining whether the particular statement is testimonial. This is a tricky question. I’m not entirely happy with a doctrine that asks about the expectations of a reasonable person when the speaker is in fact a young child. But neither does it seem satisfactory to break down the objectivity of the inquiry in this particular context – all the way by asking about the subjective anticipations of this child, or with a halfway measure such as asking about the anticipation of an eight-year-old child of ordinary understanding. Perhaps the best resolution is to consider the particular child subjectively in deciding whether she is capable of engaging in witnessing but to apply a straight objective test – referring to the standard “reasonable person” in determining whether the particular statement is testimonial. Readers’ thoughts on this question, as well as on any of the other difficult matters raised here, are of course welcome.
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