Crawford v. Washington and Davis v. Washington's Originalism: Historical Arguments Showing Child Abuse Victims' Statements to Physicians Are Nontestimonial and Admissible as an Exception to the Confrontation Clause - Tom Harbison

• Jurisdiction: United States,Federal
• Publication year: 2007
• Citation: Vol. 58 No. 2

Crawford v. Washington and Davis v. Washington's Originalism: Historical Arguments Showing Child Abuse Victims' Statements to Physicians are Nontestimonial and Admissible as an Exception to the Confrontation Clauseby Tom Harbinson^*

Under Crawford v. Washington and Davis v. Washington, the Supreme Court has created a new interpretation of the right of confrontation that holds out-of-court testimonial statements inadmissible without cross- examination. In order to determine if statements for purposes of medical diagnosis and treatment should continue to be an exception to confrontation, this Article reviews the historical evidence cited by the Court. The Court's originalist analysis holds that the only exception for what the Court refers to as "testimonial statements" is the exception for dying declarations. This Article establishes that a significant number of confrontation exceptions existed for testimonial statements in 1791, which indicates that Crawford's central holding—that the Founders intended the Confrontation Clause to be an absolute bar to the admission of out-of-court testimonial statements—is inaccurate. The historical evidence also indicates that statements for purposes of medical treatment and diagnosis were a confrontation exception in 1791 and should continue to be an exception today. This Article also asserts that the definition of testimonial statements should be limited to formal statements taken by law enforcement officers or their agents and outlines how agency law should be used as part of the Court's new interpretation of confrontation.

I. Introduction

Imagine you are the parent of a three-year-old girl who has been sexually assaulted and you have taken her to a physician for medical care. You want justice for your daughter, but the court rules that she is not competent to understand the oath; thus the court will not allow her to testify at trial.¹ or, imagine that the court has found your daughter competent to testify, but a psychologist has told you that your daughter will suffer serious and perhaps long-lasting psychological trauma if she is forced to face her rapist in the courtroom. You tell the prosecutor that you and your daughter still want the case prosecuted in order to protect other children from being sexually assaulted. Can the prosecutor proceed to trial by having the doctor testify about what your daughter told the physician? Given the Supreme Court's interpretation of the right of confrontation, can the prosecutor proceed to trial even if your daughter is unavailable to testify and be cross-examined?

Since the United States Supreme Court decision in Crawford v. Washington,² prosecutors have been scrambling to introduce out-of-court statements of witnesses without violating Crawford's new interpretation of confrontation.³Crawford holds that when an out-of-court statement of an unavailable witness is testimonial, the Sixth Amendment requires that the accused be given a prior opportunity to cross-examine the witness.⁴ Among the confrontation exceptions widely used before the Crawford decision—which the Court had found to be "firmly rooted" and, thus, did not violate confrontation—were statements for purposes of medical diagnosis and statements to a treating physician.⁵ The continued use of the medical exception to confrontation is particularly important in child abuse cases because some young children will be unavailable, either because they are found to be incompetent⁶ or because they find it very difficult, and sometimes traumatizing, to testify in court.⁷

II. Crawford v. Washington's Originalism

A. Justice Scalia Declares That Crawford is Based on the Original Intent of the Founders

Justice Scalia bases Crawford's holding on what he states is the original intent of the Founders in establishing the Confrontation Clause.⁸ The Court in Crawford concludes that the Founders would not have allowed testimonial statements to be admissible in court because the admission of testimonial statements would have violated a defendant‘s right of confrontation and cross-examination.⁹ Based on Crawford's originalist reasoning, if certain testimonial statements were exceptions to confrontation at the time of the Founders, these testimonial statements should be admissible today.¹⁰ Although the Court declined to give a comprehensive definition to the term "testimonial," the Court did state that "it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations."¹¹ The Court also indicated that plea allocutions are testimonial.¹² The Court‘s use of the term "testimonial" appears to be directed at statements taken by law enforcement when the circumstances objectively indicate to a reasonable person that the statements could be used in a later criminal prosecution.¹³

In Crawford Justice Scalia stated that the only testimonial statement admissible in 1791 when the witness was unavailable was a dying declaration.¹⁴ He stated that if the existence of dying declarations as a testimonial statement must be accepted on historical grounds, it is only because the dying declarations exception is one of a kind.¹⁵ Given Crawford's originalist methodology, in order to determine whether statements under the medical exception should continue to be an exception to confrontation or whether the statements are testimonial and thus inadmissible without confrontation, it is necessary to examine the historical record and determine if Crawford's historical interpretation is correct.¹⁶

B. Other Confrontation Exceptions Allowed for Admissibility of Statements Taken by Justices of the Peace and at Coroner's Inquests When Necessity Could Be Shown

As support for his position in Crawford that testimonial statements were not admissible when the witness was unavailable at trial and there had been no prior opportunity for cross-examination, Justice Scalia addressed the issue of whether the Marian statutes (so called because they were passed during the reign of Queen Mary) had created an exception for the admissibility of pretrial depositions at trial.¹⁷ The Marian statutes were originally used to admit sworn depositions taken before justices of the peace and statements made at a coroner‘s inquest if necessity could be shown. Necessity existed in instances of death or witness unavailability.¹⁸ The Marian statutes only allowed admissibili-ty without confrontation when the requirements of the statutes were met. When necessity could be shown, these depositions were used at trial, even though no confrontation and cross-examination occurred.¹⁹ In Crawford Justice Scalia stated that depositions were not admissible without an opportunity for cross-examination, even if the requirements of the Marian statutes were met.²⁰ Justice Scalia's Crawford opinion holds that by the time of the ratification of the Sixth Amendment, the opportunity for cross-examination was required in all cases, even if the Marian statutes stated several exceptions.²¹ English case law from that period flatly contradicts Justice Scalia's assertion.

In King v. Flemming & Windham,²² the Twelve Judges upheld the criminal conviction of individuals who raped a girl under the age of twelve, even though no confrontation and no cross-examination had occurred at trial.²³ No confrontation or cross-examination took place because, at the time of trial, the girl was dead.²⁴ Justice Scalia's Crawford analysis would indicate that the girl's deposition was a testimonial statement and should not have been admissible without an opportunity for either cross-examination at the time the deposition was taken or cross-examination at trial. Although the accused were present at the time the girl's deposition was taken before the justice of the peace, the record does not show that the accused were given an opportunity for cross-examination. ²⁵ Nor does the deposition indicate that the girl was cross-examined by the accused.²⁶ At trial, the assize judge²⁷ ruled that the Marian statutes did not require the sworn deposition to be signed because the deposition was under oath, and it was admissible even though the girl was unavailable to testify.²⁸ On appeal, the Twelve Judges upheld the assize judge's trial ruling that the Marian statutes allowed the admissibility of the girl's sworn deposition.²⁹ Defense counsel did not even argue that a confrontation right had been violated because the girl had not been cross-examined.³⁰ Instead, counsel argued that the girl's deposition was not evidence and that even if the girl's deposition was evidence, the deposition was still inadmissible because the girl had not signed it.³¹

Flemming and Windham's Case demonstrates that at least until 1799, English courts considered the Marian statutes to create exceptions to confrontation and cross-examination. The case is also important because it shows that in cases of sexual assault on a child who was unavailable to testify at trial, confrontation and cross-examination were not always required. But the case also shows that Justice Scalia is mistaken in his overall historical analysis of the right of confrontation. In Crawford Justice Scalia states that King v. Paine,³² a 1696 case, settled the issue of whether there was a requirement for the right of confrontation and cross-examination under the common law.³³ Justice Scalia also stated that "by 1791 even the statutory-derogation view had been rejected with respect to justice-of-the-peace examinations."³⁴ In support of this proposition, Justice Scalia cites King v. Woodcock³⁵ and King v. Dingler³⁶ Because Flemming and Windham's Case was decided in 1799, Paine, Woodcock, and Dingler cannot stand as the controlling authorities Justice Scalia believes them to be.³⁷Flemming and Windham's Case is not the only legal precedent that shows Justice Scalia is mistaken.³⁸

Justice Scalia states in Crawford that according to English authorities, by 1791 a number of the confrontation exceptions...