Child witnesses and the confrontation clause.

• Author: Lyon, Thomas D.
• Position: I. Introduction through IV. The Dynamics of Child Abuse A. Victim Choice: Exploitation of the Vulnerable Child, p. 1181-1205

1. INTRODUCTION

   In State v. Waddell, (1) a seven-year-old child named J.M.J. disclosed sexual abuse to a social services investigator in a videotaped interview. (2) In the interview, J.M.J. described "sexual intercourse, anal sex, the touching of her breast, and touching of [defendant's] penis." (3) Waddell was J.M.J.'s next-door neighbor. J.M.J. would visit Waddell to watch T.V., to use his bathroom, and to play with his puppies. (4) She would also visit his daughter and granddaughter when they were in his home. (5) J.M.J. also revealed the abuse to her grandmother, a teacher, a nurse, a day-care provider, and a therapist. (6) She explained that she had not immediately disclosed the abuse because she wanted to continue playing with Waddell's puppies and because Waddell had threatened her with a knife that she should not tell. (7) At trial, J.M.J. refused to testify. Her videotaped interview was admitted into evidence.

   At trial it was also revealed that Waddell had previously abused his own daughter. She testified to eleven years of sexual abuse and recalled Waddell's warning that "she would be sent to an orphanage if she told their secret." (8) She also testified that Waddell had taken naked pictures of her when she was a child. (9) Waddell admitted abusing his daughter, but emphasized that it was "nonforcible." (10) He also admitted taking naked pictures, but asserted that she was seventeen and that she had "volunteered to be a photography model." (11) A picture of a naked young girl was found in the defendant's bedroom, (12) and J.M.J. reported that Waddell showed her a picture of a naked child. (13) Waddell denied abusing J.M.J.

   The jury convicted Waddell, but his conviction was overturned because of the Supreme Court's decision in Crawford v. Washington. (14) The appellate court held that because J.M.J. refused to testify and because her videotaped statement to a social services investigator constituted testimonial hearsay, admitting the videotape violated the defendant's constitutional right to cross-examine J.M.J. (15) The fact that the trial court had admitted the videotape only after assessing its reliability mattered naught, (16) because Crawford emphasized that a defendant's Confrontation Clause right to confront witnesses was a procedural right, rendering the reliability of the videotape irrelevant. Because the videotaped interview was central to the state's case, the error could not be considered harmless and the conviction was overturned. (17)

   Waddell is one of many cases around the country in which criminal convictions have been overturned because children's out-of-court statements were admitted after they failed to testify. (18) These cases include allegations of sexual abuse, physical abuse, and domestic violence, the types of cases in which child witnesses are most often called to testify. (19) Typically, children's statements were admitted after the trial courts found the children unavailable to testify and assessed the statements' reliability under special hearsay exceptions for children's complaints. Most states have such exceptions, which were promulgated to address the difficulties of proving child abuse while remaining mindful of the need for individualized assessments of the trustworthiness of children's reports. (20)

   Crawford radically altered the treatment of hearsay under the Confrontation Clause of the Sixth Amendment. (21) In Crawford, the Court held that a criminal defendant's confrontation rights are violated by the admission of testimonial hearsay that has not been cross-examined. "Testimonial hearsay" includes statements "in which state actors are involved in a formal, out-of-court interrogation of a witness to obtain evidence for trial." (22) Unless an emergency exists, many if not most statements to government officials are likely to be considered testimonial. Statements made to social workers and the police when they interview children during investigations of alleged child abuse and domestic violence are usually deemed testimonial. Testimonial hearsay also includes most statements made to agents of the police.

   In many cases involving child witnesses, children are interviewed at child advocacy centers by specially trained forensic interviewers who work closely with social services and the police. (23) In Waddell, a social worker interviewed the child at a child advocacy center while a police detective operated the video camera. The worker took several breaks, during which she consulted with the detective, and when the interview was complete, she forwarded the tape to law enforcement. (24) At the best child advocacy centers, interview protocols are followed, the interviews are videotaped, and both social services and the police observe the interviews in order to minimize the need for multiple interviews. Because the interviews are recorded, the exact words used by the interviewer and by the child can be closely scrutinized for evidence of suggestion, confabulation, or misinterpretation. Ironically, because of the formality and the input provided by state actors, the statements are almost sure to be deemed testimonial, triggering application of Crawford. (25)

   One of the few exceptions to the rule announced in Crawford is the doctrine of forfeiture by wrongdoing. In Giles v. California, (26) the state sought to introduce against the defendant statements that the murder victim previously made to the police. (27) The defendant successfully argued that his confrontation rights were presumptively denied because he could not cross-examine the victim at trial. (28) However, Giles held that a defendant forfeits his right to confront an unavailable hearsay declarant if the court finds that he engaged in wrongdoing that was designed to and did in fact cause the declarant's unavailability. (29) A majority of the Court expressed the view that repeated acts of domestic violence against the declarant should suffice to prove that her murder was motivated by a desire to control the declarant and render her unavailable. (30) The opinion constitutes an unusual willingness by the Court to consider the dynamics of a crime in assessing the rights of criminal defendants.

   The Giles opinion provides an opportunity to apply the forfeiture doctrine to the special challenges facing the prosecution in child-witness cases. Assessing the dynamics of child sexual abuse, we will argue that forfeiture should apply if the defendant exploited a child's vulnerabilities such that he could reasonably anticipate that the child would be unavailable to testify. Exploitation includes choosing victims on the basis of their filial dependency, their vulnerability, or their immaturity. Exploitation also includes taking actions that create or accentuate those vulnerabilities.

   Section II explores how Crawford altered the prosecution of child abuse. Section III describes the forfeiture-by-wrongdoing exception to the Confrontation Clause and discusses how a majority of the Court exhibited a willingness to consider the dynamics of abuse in applying the forfeiture doctrine. Section IV describes the dynamics of child sexual abuse and how perpetrators exploit the foreseeable unavailability of their victims. Section V demonstrates how the lower courts have missed the opportunity to apply forfeiture to child-witness cases. Section VI concludes.

2. HOW CRAWFORD ALTERED THE PROSECUTION OF CHILD ABUSE

   Crawford v. Washington changed the status of hearsay evidence under the Confrontation Clause. Prior to Crawford, such evidence was assessed under Ohio v. Roberts, (31) which admitted hearsay statements from unavailable declarants if they bore "indicia of reliability." (32) Reliability could be assumed either if the statements fell within a "firmly-rooted hearsay exception" or if they had "particularized guarantees of trustworthiness." (33) Many hearsay statements by children had to satisfy the trustworthiness standard, because they were admitted under exceptions that were not firmly rooted, such as the residual exception or special statutory exceptions for children's abuse complaints. Hence, in Idaho v. Wright, (34) the Court upheld the reversal of a sexual abuse conviction because statements made by a two-and-a-half-year-old to a physician were admitted under the "residual" exception to the hearsay rule and lacked guarantees of trustworthiness. (35) The Court held that the Confrontation Clause required exclusion of such statements "unless an affirmative reason, arising from the circumstances in which the statement was made, provides a basis for...