Further developments and thoughts on child witnesses

Yesterday, the Ohio Supreme Court decided State v. Siler. In my view, this is a case of considerable interest, significance, and difficulty.

The facts are gruesome and hard to stomach. Brian Siler is charged with murdering his estranged wife Barbara, who was found hanging by a cord in the garage. Medical evidence indicated that she had been choked to death from behind and then hanged. Among the evidence against Siler was the testimony of Detective Larry Martin, a plain-clothes police officer and trained child interviewer who was called to the scene, as to statements the couple’s 3-year-old son Nathan made soon after the body was discovered. According to Martin, Nathan said that his father had scared him the night before by banging loudly on the front door, that his parents had argued loudly in the garage, that his father had hurt his mother, by grabbing her from behind above the shoulders, and that"the yellow thing" that was holding his mother up was put on his mother by his father.

In a pre-Crawford trial, these statements were admitted as – surprise – excited utterances, though apparently Nathan did not exhibit distress until well into the interview. The appellate court, pre-Crawford, affirmed, and the state supreme court, soon after Crawford, denied review; even on a motion for reconsideration, highlighting Crawford, the state supreme court declined review. But then the U.S. Supreme Court – in a decision noted in the very first posting on this blog – vacated and remanded for reconsideration in light of Crawford. Siler v. Ohio, 543 1019 (2004). On remand, the appellate court held unanimously that Nathan’s statements were testimonial and that admitting them in the absence of an opportunity for cross-examination violated the confrontation right. State v. Siler, 843 N.E.2d 863 (Ohio App. 5th Dist. 2005). And now the Ohio Supreme Court has reached the same conclusion, also unanimously on this point. So that is a measure of how far matters have progressed from the pre-Crawford era, and perhaps the immediate post-Crawford era as well.

In State v. Stahl, 855 N.E.2d 834 (Ohio 2006), a case involving an adult declarant, the Ohio Supreme Court had previously applied (or more accurately mis-applied) the objective-witness test. In Siler, that court has now held that this test applies even if the declarant is a child – but only so long as the statement is not made in response to interrogation by "police or those determined to be police agents." Relying on Davis, the court held that when a child does make a statement in response to such interrogation, the primary purpose of the interrogator is the decisive question. Accordingly, the age of the child does not matter in that context. (Two justices issued a separate opinion. They concurred in the judgment, but would have declared that the primary-purpose test applies to statements made in response to police interrogation, whether the declarant is a child or an adult, and they would not have declared that the objective-witness test applies to statements by children to persons other than the police and their agents.) Applying the primary-purpose test in this case, the court easily held that the statement was testimonial, because Detective Martin’s purpose was so clearly investigation of a crime.

Several points:

1. Even assuming this decision stands, the state is not precluded from introducing Nathan’s statements on retrial. It could make Nathan a witness. How much good that would do – he is now 9 and the murder happened six years ago – is another matter. But even if he said he remembered nothing, just putting him on the stand would presumably satisfy the United States Supreme Court, given Crawford’s explicit statement that " when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements," 541 U.S. at 59 n.9, and the fact that Justice Scalia, author of Crawford, also wrote United States v. Owens, 484 U.S. 554 (1988), in which the fact that the witness had virtually no memory because his head was bashed in was not deemed to undercut the value of cross. But perhaps the Ohio Supreme Court – which adopted the appellate court’s formulation of the declarant being "present at trial to defend or explain" the statement – will be more demanding.

2. There is an odd inversion with respect to child statements. In the context of statements by adults, the defendant usually favors the objective-witness standard. True, it is plenty manipulable (and Stahl is a good example; there, the court characterized as non-testimonial a detailed statement alleging sexual molestation and kidnapping, made to a nurse practitioner the day after the alleged incident and after signing a form consenting to "this forensic examination and collection of evidence"). Nevertheless, it is more likely than the primary-purpose-of-the interrogator standard to yield a characterization of a statement as testimonial, in part because often the declarant knows she is reporting a crime before the receiving police agent does and in part because the latter standard is so easily manipulable by a police agent testifying as to a supposedp urpose other than law enforcement. By contrast, in the context of statements by children, the defendant often prefers a test based on the purpose of the interrogator, because often it is clear the interrogator is gathering evidence for prosecution but the child has at best a dim understanding of what is going on. That is the case in Siler. If the primary-purpose-of-the interrogator test applies, the statement is clearly testimonial; if a declarant-based test applies, the matter is more complicated, as discussed below.

3. To underline the point about manipulability made in the last paragraph: Although this statement was undoubtedly testimonial under the primary-purpose-of-the interrogator test, because it was clear that Detective Martin was gathering evidence, I wonder how clear it will be in such cases in the future, now that police agents and prosecutors are forewarned. "What was your primary purpose in asking Nathan these questions, Officer?" "My primary purpose was to protect this child and other people as well. I knew that Nathan's mother had been killed, that the killer was at large, and that Nathan himself would be at risk, especially if the killer was his father or if the killer realized that Nathan had observed some of the incident. I knew also that so long as a killer who had acted with such rage was at large other persons might also be at risk, both people known to the killer and strangers. I needed as much information as possible to help us protect Nathan and the rest of the community."

4. It is certainly understandable that in light of Davis the court – like many other courts – would adopt an approach based on the primary purpose of the interrogator when there is a police interrogator. But as I have argued at length, the proper perspective should be that of the declarant. Grappling withthe Meaning of "Testimonial", 71 Brook. L. Rev. 251, 255-59 (2005). And I have also argued that Davis is perfectly compatible with this approach. Crawford, Davis, and Way Beyond, 15 J. L. & Pol. 553, 557-63 (2007).

The fact that a statement is made in response to a police agent who is preparing prosecution of a crime is a critical factor in determining whether the statement is testimonial, but not because the agent’s purpose is itself the criterion; rather, if the agent is gathering evidence, that fact will usually (at least in the case of an adult) be apparent to a reasonable person in the declarant’s position, and so such a person would necessarily anticipate the likely use of the statement.

5. A significant problem with the Ohio Supreme Court’s approach – which may reflect a developing trend – is that it enunciates two different standards in different settings, which suggests that it is not supported by any underlying theory. The more difficult it is to state a comprehensive standard for what is testimonial, the more the Confrontation Clause will appear to be a bundle of rules without a clear rationale – the more it will look like Roberts.

I wonder, for example, how courts that apply a primary-purpose-of-the interrogator standard in a case like Siler will handle conspirators’ statements made to undercover cops. I do not believe that the Supreme Court would have adopted the testimonial approach in Crawford if it thought that a result would be to render such statements inadmissible – and yet such statements are often gathered for the primary purpose of preparing a criminal prosecution. One could try to cover for this situation by arguing that such statements are not sufficiently formal – but as I have also argued, I believe an independent formality test is misbegotten, e.g., Way Beyond, supra, at 567-71, and it would be so mushy that it would severely weaken the confrontation right.

6. If a court does take the declarant’s perspective with respect to children’s statements, then one cannot simply ask why the police agent interviewed the child. I have already written about some of the issues in a recent, long posting on child witnesses, so I will not go into much depth here.

a. One possible issue is whether the child should be considered so immature that he is deemed incapable of engaging in the act of testifying; see par. 4b of the prior post, and note that in my view, if the child is not capable of being a witness that does not eliminate all constitutional issues, because the defendant may have a due process right to examine the child, perhaps through a child psychologist.

b. Assuming the child is capable of being a witness, there is a question of whether the child’s age should be taken into account in applying the reasonable-declarant standard top the particular statement. This issue is addressed briefly in par. 5 of the prior post.

c. To determine that the child is capable of being a witness, as suggested in paragraph 6.a above, or to determine that the particular statement is testimonial, if the age of the child is taken into account, what level of understanding must the child have? I don’t believe that the child must understand the nature of criminal prosecution and the adjudicative system; it should be enough that he understands that is statement might cause adverse consequences to someone. Perhaps also, as Sherman Clark has argued, the child’s level of moral development ought to be taken into account; see par. 4b of the prior post.

7. How to take all this into account in Siler? Perhaps Nathan was old enough to understand that he was "telling" on daddy, and maybe that is enough for his statement to be considered testimonial. But I am not sure how much good is going to be accomplished by having him take the witness stand now, or even how much would have been accomplished by having him testify at the original trial, at least months after the nurder. Perhaps the way out of this is to say that the state, knowing the limitations on children’s memories and the seriousness of the situation, should have offered Siler a chance to cross-examine Nathan while the memory was fresh. An alternative result would be to hold that Nathan was too immature to be deemed a witness, but because he was a source of evidence the defense should have had a chance to examine him, on videotape, with a child psychologist asking questions in an informal setting.

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for the most part I have avoided commenting on decisions of intermediate state appellate courts, but some time ago reader Justin Eisele posted (in a comment attached to my posting of Sept. 20) another child-witness case, Seely v. State, 2007 WL 2781965 (Ark. App. Divs. I & IV Sept. 26, 2007), and he and another reader posed questions about it. Seely is an interesting case, not because the facts are unusual but rather because (unlike Siler) they reflect a very common pattern and the trial court and two groups of appellate judges each responded in different ways.

A young child -- also three at the time -- made statements to her mother and to a social worker accusing her father of sexual abuse. The trial court held the child, four by then, incompetent to testify at trial, but the mother and social worker were allowed to testify to the statements made by the child. The defendant was convicted. The appellate court held that the statements made to the social worker were testimonial. Accordingly, because the defendant had never had an opportunity to cross-examine the child, admission of the statements was a violation of the Confrontation Clause (and it was not harmless, so the conviction was reversed). But the majority also held that the statements to the mother were not testimonial. Two judges would have held that the statements to the mother, as well as those to the social worker, were testimonial.

First, in response to the anonymous commentator (please do identify yourselves, if possible): I don't think there would be any inconsistency between a holding that a given statement is testimonial and a holding that the declarant is incompetent to testify at trial. (In any event, in this case, it was the trial court that held that the child could not testify at trial and the appellate court that held that some of her statements were testimonial.) The first holding focuses more on the nature of the statement and the second on the capacity of the declarant. Together, these holdings can reflect a perception that the declarant was acting as a witness when she made her statement, but that she lacks the capacity to testify in a way that is acceptable to the judicial system. There is no logical inconsistency there.

Having said that, I’m inclined to think that courts should avoid that pair of characterizations. As noted above, I have held out the possibility that a very young child can have such a dim understanding of the likely consequences of her statement that she should not be considered capable of being a witness at all within the meaning of the Confrontation Clause. (Again, she doesn’t have to understand the legal system for her statements to be testimonial, but if she doesn’t understand that she is making a statement accusing someone of wrongdoing, with the likelihood of that person suffering some kind of adverse consequences, arguably that isn’t testifying.) In other words, there are three possibilities – (a) child incapable of being a witness, or put another way, of making statements deemed testimonial; (b) child capable of making statements testimonial in nature but not of giving testimony in an acceptable way, perhaps because of lack of understanding of the obligation to tell the truth; (c) child capable of testifying acceptably. Personally, I am inclined to think that if a child is capable of making testimonial statements then her testimony ought to be heard in court, even if she doesn’t understand the obligation to tell the truth; plenty of adult witnesses flout the obligation, even assuming they understand it. In other words, I would be inclined to eliminate category #2.

On the merits of the case, I certainly agree with the minority in rejecting a formality test and a standard that statements by a child "to loved ones or acquaintances" are not testimonial.

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I bleieve the confrontation issues posed by statements made by children are enormously important, complex, and troubling. Sooner or later, the Supreme Court will have to begin resolving many of these issues. I believe that, given the limitations on the Court's resources, the chance that the Court will achieve a sound resolution of these issues will be greater if the Court first focuses on basic issues in the context of adult witnesses, and once the framework is built addresses applications to child declarants.

Second Brooklyn Symposium now available on-line

Papers from the second post-Crawford symposium organized by Bob Pitler at Brooklyn Law School are available on-line, and you can reach them by clicking here. Though the symposium was held just over a year ago, I believe most of the papers are still timely. They represent a wide divergence of points of view. I have already commented on Jennifer Mnookin's paper, in a post on expert evidence. I may comment on others, as time allows.