Playing by all the rules: how to define and provide a "prior opportunity for cross-examination" in child sexual abuse cases after Crawford v. Washington.

• Author: Carr, Prudence Beidler

1. INTRODUCTION

   In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.... (1) [A] State's interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant's right to face his or her accusers in court. (2) In 2004, the Supreme Court decided Crawford v. Washington (3) and reassessed the standards for admitting ex parte statements in criminal trials under the Sixth Amendment's Confrontation Clause. Writing for the majority, Justice Scalia introduced the following rule: "Where testimonial evidence is at issue ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." (4) The Crawford rule of confrontation has had an enormous impact throughout criminal law. Its effects have been felt perhaps most dramatically, however, in child sexual abuse (CSA) cases.

   1. VICTIM TESTIMONY: THE SOURCE OF THE PROBLEM

      Child sexual abuse typically occurs in private locations without other witnesses, and the passage of time between the alleged abuse and its disclosure often precludes conclusive physical examinations. (5) Consequently, it is common for victim testimony to constitute the principal evidence on which CSA prosecutions rely. It is difficult to ensure that a child will be able to relay this evidence at trial, however, because children are regularly "unavailable" to testify in court. (6) Children's unavailability to testify at trial stems from a variety of causes, including fear of the courtroom and of the defendant, (7) diminished memory of events, (8) and an inability to answer questions and articulate details clearly. (9) Children's unavailability is also often tied to their age at the time of the alleged abuse and at the time of trial. (10) Because these causes of children's unavailability are typically not remediable, they can often serve to exclude children's voices from being heard altogether in CSA cases, even when the child's testimony is the primary evidence on which the CSA prosecution relies.

      Prior to the Crawford v. Washington decision in 2004, courts across the country recognized the risk that excluding children's voices from CSA trials could undermine CSA prosecutions. They responded to this risk by applying looser standards for admitting out-of-court or ex parte testimony in CSA cases. If a child was unavailable to testify in court during a CSA trial, courts chiefly adopted two specific methods for ensuring that her voice could still be heard. First, government agents such as police officers and caseworkers who had interviewed the child about the alleged abuse could relay the contents of their interviews through broad hearsay exceptions. (11) Second, prosecutors could introduce children's videotaped pretrial statements even if the defendant had not had an opportunity to cross-examine the child. (12)

      Both of these methods--the relay of ex parte testimony through another's testimony and the use of prerecorded video statements--ensured that a child's voice could be heard at trial. However, these methods also overly benefited CSA prosecutors and infringed on criminal defendants' constitutional right to confront all witnesses against them. For example, when prosecutors used government agents to relay a child's ex parte testimony, the defendant could only cross-examine the messenger, rather than the source of information. (13) Moreover, the use of government agents to relay a child's statements gave prosecutors the opportunity to shape their victims' voices in a way that would best suit their case. (14) Prosecutors also gained unfair advantages when they used a videotaped statement to relay a child's pretrial testimony because defendants could not cross-examine the video statement. (15)

      Prior to Crawford, trial judges could apply these looser evidentiary rules in CSA cases because the Supreme Court gave them broad discretion to admit ex parte testimony that met certain "particularized guarantees of trustworthiness." (16) Additionally, state legislatures condoned the use of looser standards in CSA cases because they served the greater public policy goal of protecting children while prosecuting CSA crimes. (17) Despite the compelling public interests at issue, however, there remained a key problem with allowing prosecutors to circumvent the Confrontation Clause in CSA cases: children's allegations about sexual abuse are not always true. (18) In fact, children's testimony can become heavily influenced by parental influence, suggestive interview questions, and confusion about what is and is not pleasing to adult investigators. (19) To prevent the admission of false or misleading testimony, CSA cases therefore require reliability testing that extends beyond mere judicial instinct concerning the "trustworthiness" of a child's ex parte statement. (20)

   2. CONFRONTATION: THE SOURCE OF THE SOLUTION

      Confrontation provides the paramount reliability test, which is why it was included in the Sixth Amendment. (21) Substitutes for confrontation, such as cross-examining government witnesses about a victim's testimony or reliance on judicial discretion concerning a statement's general trustworthiness, cannot satisfy the Constitution's explicit protections for criminal defendants. (22) In 2004, the Supreme Court revitalized this argument when it provided the new Crawford rule of confrontation, which bars all testimonial out-of-court statements when a witness is unavailable to testify at trial unless the defendant had a prior opportunity to cross-examine that witness. (23) Then, in 2006, the Supreme Court made it clear that this rule extends to all criminal prosecutions, including those that often involve unavailable witnesses. (24) By requiring that all criminal defendants have an opportunity to confront the testimony offered against them, the Crawford rule of confrontation has thus addressed one key problem in CSA cases: the need to let defendants test the reliability of children's allegations.

      While the other issues surrounding CSA cases--the need to protect children from the trauma of testifying at trial and the need to admit children's statements into evidence--have not disappeared, the Crawford rule has made it much more difficult to admit children's ex parte statements in CSA trials. (25) As a result, over the past three years the Crawford rule of confrontation has often functioned not to test the reliability of children's statements but rather to exclude children's voices from sexual abuse trials. (26) The purpose of the Confrontation Clause is to ensure the reliability of evidence offered against criminal defendants; it is not intended to eliminate the use of that evidence altogether. (27) Consequently, as it currently operates, the Crawford rule of confrontation advantages CSA defendants well beyond its intended purpose.

   3. CENTERING THE SEESAW

      Weighing the unfair advantages possessed by CSA prosecutors before Crawford with those that have emerged for defendants as a consequence of the new rule, an inevitable question arises: Should we sacrifice the prosecution's case, excluding the most critical evidence--the victim's voice--or should we sacrifice the alleged abuser's defense, displacing constitutional confrontation rights by admitting children's out-of-court allegations without testing the reliability of those statements?

      Because sexual abuse is such an abhorrent crime and one that tends to rile the public, a knee-jerk public policy reaction might lead us to take the latter route and sacrifice the defendant. (28) However, even the best-intentioned public policy concerns do not justify a suspension of constitutional rights. (29) The goal then is to balance the seesaw of advantages by developing rules of CSA confrontation that harmonize society's interests in protecting children and prosecuting sex abusers with the preservation of the criminal defendant's right to test the reliability of all testimony offered against him. (30)

      This Comment proposes a method for meeting that goal by looking both at the recent Crawford case and at the cases leading up to it with regard to child victim testimony in CSA trials. Section II.A begins by examining the admission of child victim testimony in CSA cases prior to Crawford. (31) This section focuses on two particular issues: the trustworthiness of ex parte testimony and definitions of sufficient confrontation in CSA cases. Section II.B then analyzes the Supreme Court's recent opinions in Crawford and Davis v. Washington. (32) Section III looks at the effects that Crawford and Davis have had on CSA cases and explains why previous suggestions for mitigating these effects provide inadequate solutions to the problems at issue. (33)

      Finally, Section IV proposes a way that unavailable child victims' voices can be heard in the courtroom while still upholding the defendant's right to test the reliability of a child's allegations under the Crawford rule of confrontation. (34) Specifically, this section focuses on the importance of looking beyond the Crawford decision to define what it means to provide criminal defendants with a "prior opportunity for cross-examination." (35) Only by defining and addressing this component of the Crawford rule can the Confrontation Clause's goal of reliability testing be successfully attained without jeopardizing the public's interest in protecting child victims while prosecuting CSA crimes.

2. BACKGROUND

   1. SETTING THE PRE-CRAWFORD STAGE

      Prior to Crawford v. Washington, the Supreme Court heard a range of cases concerning the nexus between confrontation requirements and the admissibility of children's statements in CSA trials. These cases fell into two categories: (36) those that assess the "trustworthiness" of ex parte statements when a child is unavailable to testify at trial, (37) and those that define sufficient confrontation when a...