OUT‐OF‐COURT STATEMENTS BY VICTIMS OF CHILD SEXUAL ABUSE TO MULTIDISCIPLINARY TEAMS: A CONFRONTATION CLAUSE ANALYSIS

• Author: Jonathan Scher
• Date: 01 January 2009
• DOI: http://doi.org/10.1111/j.1744-1617.2009.00247.x
• Published date: 01 January 2009

FAMILY COURT REVIEW, Vol. 47 No. 1, January 2009 167–189

© 2009 Association of Family and Conciliation Courts

Blackwell Publishing IncMalden, USAFCREFamily Court Review1531-24451744-1617© Association of Family and Conciliation Courts, 2009XXX

Original Article

Scher / OUT-OF-COURT STATEMENTS BY VICTIMS OF CHILD SEXUAL ABUSE TO MULTI-DISCIPLINARY TEAMSFAMILY COURT REVIEW

STUDENT NOTES

OUT-OF-COURT STATEMENTS BY VICTIMS OF

CHILD SEXUAL ABUSE TO MULTIDISCIPLINARY TEAMS:

A CONFRONTATION CLAUSE ANALYSIS

Jonathan Scher

Acknowledging the rapid growth of child sexual abuse in the United States, this Note advocates for the recogni-

tion of a limited exception to the blanket-hearsay ban on out-of-court statements made by unavailable declarants

set out by the Supreme Court in

Crawford v. Washington

. In order to protect a criminal defendant’s Sixth Amendment

confrontation right,

Crawford

requires that hearsay evidence that is “testimonial” in nature be deemed inadmissible

if the witness is unavailable and the defendant does not have a prior opportunity to cross-examine the witness

against him. However,

Crawford

noted that, where nontestimonial hearsay is at issue, cross-examination may not

be necessary. Accordingly, where a child sexual abuse victim makes statements during a structured or semi-structured

forensic interview to a member of a multidisciplinary team, these statements should be deemed nontestimonial

and thus admitted into evidence, without requiring cross-examination of the child. Allowing for this exception

to the general hearsay ban in

Crawford

is not only consistent with current precedent, but it is also warranted to

promote public policy and to curb the negative impact such abuse has on society.

Keywords:

child

;

abuse

;

sexual

;

Roberts

;

Crawford

;

Davis

;

Hammon

;

structured

;

interview

;

forensic

;

videotape

;

multi-disciplinary

;

testimonial

;

non-testimonial

;

hearsay

;

R.A.T.A.C.

;

NICHD protocol

I. INTRODUCTION

On December 3, 2003, a mother brought her four-year-old daughter, Pearl, to a medical

center in Minot, North Dakota.

1

The mother believed that her boyfriend, Blue, had sexually

abused Pearl while she had stayed at Blue’s house during the Thanksgiving weekend.

2

An

examination conducted at the medical center revealed irritation and other indicators of

penetration to the four-year-old child’s vagina.

3

A report of possible sexual assault was then

sent to the Minot Police Department, and Pearl was referred to the Children's Advocacy

Center in Bismarck, North Dakota.

4

Approximately one week later, a forensic interviewer

at the Children’s Advocacy Center conducted a one-on-one interview with Pearl while a

police officer remained in a different room and watched the interview on a television set.

5

Pearl told the forensic interviewer that Blue had locked a door and put scissors inside of

her.

6

Further, Pearl explained to the forensic interviewer that her pants and panties were off,

and that the other man’s pants were on.

7

Upon completion of the interview, the videotape

recording of the session was given to the police, and Blue was later charged with gross

sexual imposition.

8

Two years later, a trial court held an evidentiary hearing on the matter

Correspondence: jscher9@pride.hofstra.edu

168FAMILY COURT REVIEW

and determined that Pearl was unavailable to testify at trial due to her lack of memory of

the alleged incident in question.

9

It is at this point of the trial process that a problem arises. The court must determine

whether or not Blue’s Sixth Amendment

10

constitutional right to confront the witness

against him would be violated if the videotaped forensic interview of Pearl incriminating

Blue from two years earlier is submitted into evidence without Pearl being subjected to

cross-examination at trial. Prior to 2004, in adhering to long-standing precedent,

11

the court

needed only be satisfied that such hearsay

12

evidence was sufficiently reliable

13

for it to be

deemed admissible, regardless of whether or not the child testified at trial. However, after the

Supreme Court issued its landmark decision in

Crawford v. Washington

14

in 2004, past

precedent was partially overruled,

15

and a stricter standard was adopted to govern the

admissibility of hearsay evidence.

16

Crawford

requires that hearsay evidence that is

“testimonial”

17

in nature be deemed inadmissible if the witness is unavailable

18

and the

defendant does not have a prior oppor tunity to cross-examine the witness against him.

19

Consequently, post-

Crawford

courts apply this standard and consistently determine that

hearsay evidence, like the videotaped interview of Pearl in the case above, is “testimonial,”

and thus inadmissible when the child-victim is unavailable to testify.

20

Therefore, more

abusers like Blue are able to escape punishment because key evidence against them

continues to be kept out of the courtroom. But, one might ask: did the Supreme Court

truly intend to curtail the successful prosecution of child sexual abusers when it issued its

landmark decision in

Crawford

?

“In the past few decades, the number of reported cases of child sexual abuse in the

United States has increased at a rate of approximately 2300%.”

21

The rapidly growing

number of cases of child sexual abuse presents a unique evidentiary issue to prosecutors.

22

Because there is often a lack of physical evidence or eyewitnesses in cases of child sexual

abuse,

23

and children may be unavailable to testify at trial,

24

prosecutors often find

themselves lacking the evidence they need to support a successful conviction of the abuser

if videotaped forensic interviews are deemed inadmissible.

Fortunately, however, some courts have recently taken steps in the right direction.

25

Where

child protection services or medical professionals have utilized structured or semi-

structured forensic interviews to obtain statements from children outside the courtroom,

courts have determined that such statements are nontestimonial, and thus admissible,

even when the child does not testify at trial.

26

Thus, courts have found a way to provide

the nontestifying child with an opportunity to be heard without necessarily “carving the

heart out of the confrontation right”

27

as feared by the Court in

Crawford

. Hopefully, as

social science research continues to produce even more reliable interviewing techniques,

28

future courts will begin to recognize this limited exception to the over-inclusive standard

in

Crawford

.

Section II of this Note will briefly explore child sexual abuse, mandatory reporting laws,

and the child-victim as a witness. Section III of this Note will provide a brief background

of the Supreme Court’s interpretation of the Confrontation Clause by discussing its

landmark decisions in

Roberts

,

Crawford

,

Davis

and

Hammon

.

29

Section IV of this Note

will discuss the negative impact those decisions have had on the prosecution of perpetrators

of child sexual abuse, suggest why such a negative impact may not be justified, and propose

a potential solution. Section V of this Note will briefly introduce the concept of forensic

interviews, address the problems associated with using faulty interviewing techniques, and

introduce two new forensic interviewing techniques: the R.A.T.A.C. semi-structured pro-

tocol

30

and The National Institute of Child Health and Human Development (hereinafter