Crawford at its limits: hearsay and forfeiture in child abuse cases.

• Author: Fox, Brian

INTRODUCTION

Child abuse cases present some of the most challenging issues in criminal justice. Judges are often in a position where they must balance a defendant's fight to confront her accusers in court, the practical difficulties of forcing a young child to testify, and the state's interest in protecting victims from additional psychological harm. (1) These cases are difficult to prosecute because often the only witness is a child who may be unable to understand the nature of the crime, (2) the effect of their testimony, (3) or be too traumatized to testify. (4) As a result, the court may conclude that the witness is unavailable to testify. If the court determines that a victim is "unavailable" under the applicable rule of evidence, then the child, who will likely be the only individual with personal knowledge of the event, will be precluded from testifying about the abuse or any statements she may have made to others. Though Federal Rule of Evidence 804 does not include trauma as one of the five illustrative alternatives to meet the unavailability requirement, a child who is too frightened of the defendant to testify will have the same status as a witness who had died or invoked a privilege. (5) Whether or not the unavailability is a formal prerequisite for admission of out of court statements into evidence, prosecutors will only be able to use the statements if they meet a hearsay exception. (6)

Though already a difficult question, the Supreme Court's 2004 decision, Crawford v. Washington, (7) dramatically redefined the framework under which judges must assess hearsay statements to protect the confrontation rights of defendants. The majority opinion sketched out a new test that requires the judge to determine whether the out-of-court statement was "testimonial," or uttered by the declarant knowing it could be used in a future trial against the defendant. (8) Statements taken by police officers in the course of an investigation are perhaps the clearest example of such statements, whereas statements to family members will almost never be testimonial. The Court has not addressed the Confrontation Clause in a child abuse case since 2004, but Crawford had an instant and profound effect on prosecutions. Many statements that had been admissible under hearsay exceptions prior to Crawford are now excluded. (9)

This Note will argue that although Crawford and its progeny have, with a few exceptions, produced reasonably consistent results in cases involving out-of-court statements of child abuse victims, several lingering questions require the Court's clarification. First, though the Supreme Court created a "primary purpose" test for analyzing hearsay in Davis v. Washington (10) that easily classifies some types of child hearsay statements as either testimonial or non-testimonial, the test is more problematic when applied to other actors involved in child abuse investigations. Child abuse cases usually involve, often by law, multiple actors working in concert, including law enforcement, social workers, counselors, and medical professionals. (11) Interviews with children will often be conducted for multiple purposes with law enforcement present. The Court had an opportunity to give lower courts more guidance last year in Iowa v. Bentley, (12) a case involving a child abuse victim who was later murdered, but declined to hear the case.

Second, the Court's recent decision in Giles v. California (13) poses additional problems for judges in child abuse cases. Giles was a domestic violence case in which the Court held that a defendant waives Confrontation Clause protection only by intending, and not merely causing, the unavailability of the witness. (14) Forfeiture by wrongdoing had often been an issue in child abuse cases where the trauma of the abuse caused the victim's unavailability at trial, either by the abuser warning the child not to tell anyone or by threatening physical harm. (15) Though, when read with the dissent, the Court in Giles seems to be adopting a strict test, language in the majority opinion has allowed some courts to consider past threats or abuse intended to deter the victim from seeking outside help as sufficient to show forfeiture. (16) Giles is young, but the current case law indicates that lower courts are sometimes reading the decision as a command to consider the context of abuse as proof that the defendant waived his confrontation rights. While such interpretations of Giles may be key to saving forfeiture claims in future domestic violence prosecutions, it may not be particularly useful in the child abuse context due to the realities of reporting and investigating these crimes. The Supreme Court should revisit Giles in the child abuse context and adopt a more coherent formulation for the forfeiture doctrine.

This Note argues that the realities of child abuse cases require a more definitive treatment by the Court before Crawford can be applied consistently. Child abuse cases present a uniquely difficult challenge to judges. With child victims who are not competent to testify, their very ability to make the allegation in the first instance may be questionable, making it even more imperative to preserve the rights that were designed to prevent unreliable evidence from being offered against a defendant. (17) The challenging nature of child abuse cases demonstrates the need for clear rules to help guide judges.

This Note begins with a discussion of Crawford, Davis, and Giles. Next, Part II analyzes how they have been generally received in lower courts. Part III argues that although the Supreme Court's new Confrontation Clause framework has produced consistent results in cases involving certain classes of statements, the realties of complex child abuse investigations make Crawford and Giles difficult to apply consistently. This Note concludes that the Court should revisit Crawford and Giles, and clarify how these new rules should be applied in the context of a child abuse investigation.

1. THE SUPREME COURT'S RECENT CONFRONTATION CLAUSE JURISPRUDENCE

   This Part will evaluate the framework that courts now use to evaluate confrontation challenges. Section A introduces the new testimonial approach adopted in Crawford and applied in Davis and Giles. Section B evaluates the Court's own pre-Crawford confrontation cases involving child witnesses in light of the new standard.

   1. The Testimonial Framework: Crawford and After

      The Supreme Court's 2004 decision in Crawford v. Washington (18) transformed how courts decide Confrontation Clause challenges to statements made by unavailable witnesses. In Crawford, the Court abandoned the reliability framework under Ohio v. Roberts, (19) which had analyzed Confrontation Clause challenges for over two decades, in favor of an originalist approach, which attempts to reflect the intentions of the founders. (20) After Crawford, courts now must determine whether the statements made by the unavailable witnesses are "testimonial." Testimonial was specifically left without a precise definition, (21) though the Court said that it would include ex parte in-court testimony, extrajudicial statements in formalized testimonial materials, and "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." (22) If a statement is found to be testimonial, then it is inadmissible, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the unavailable witness. (23) Crawford had a particularly important impact in domestic violence and child sexual abuse cases, where prosecutors had relied on hearsay exceptions under the old Roberts standard. (24)

      Over the next two years, state and federal courts struggled to apply the new framework with only the sparse language of Crawford itself. In 2006, the Court employed the testimonial analysis to two domestic violence cases: Davis v. Washington and Hammon v. Indiana. (25) It held that statements made during an ongoing emergency to aid responding police officers were not testimonial, but statements to police officers after the emergency had subsided in this case after an assault had taken place--were testimonial. (26) In other words, the inquiry focuses on the primary purpose of the interrogation by law enforcement personnel or their agents, though the Court specifically declined to decide when statements to individuals other than law enforcement are testimonial. (27)

      The Court most recently revisited Crawford in Giles v. California, (28) another domestic violence case. At issue in Giles was whether the forfeiture by wrongdoing doctrine, whereby a defendant waives a right to confrontation by procuring the unavailability of the witness, requires an element of intent. If the doctrine applies, otherwise inadmissible statements may be admitted into evidence. (29) The petitioner in Giles had been convicted of murdering his former girlfriend. (30) The trial court had allowed prosecutors to present out-of-court statements made by the victim to a police officer who had investigated a domestic-violence report a few weeks before the murder where she accused the defendant of attacking her. (31) The defendant appealed both before and after Crawford was decided, and eventually the California Supreme Court concluded that he had forfeited his right to confrontation by procuring the witness's silence through the act for which he was on trial. (32)

      Specifically at issue in Giles was whether forfeiture could be invoked where the unavailability was merely caused by the defendant, or if the defendant needed to act with the specific intent of making the witness unavailable at trial. (33) In an opinion authored by Justice Scalia, the Court held that in order to admit statements * that would otherwise be prohibited by the Sixth Amendment Confrontation Clause, the prosecution must present evidence that the defendant...