The reasonable child declarant after Davis v. Washington.

• Author: Funk, Christopher Cannon

INTRODUCTION I. THE U.S. SUPREME COURT SHIFTED FROM FOCUSING ON RELIABILITY TO FOCUSING ON TESTIMONIAL HEARSAY A. In Ohio v. Roberts, the Court Created Its Two Prongs of Unavailability and Reliability B. In Bourjaily v. United States and White v. Illinois, the Court Only Required that Trial Courts Admit Coconspirator Statements and Spontaneous Declarations Under Firmly Rooted Hearsay Exceptions C. In Crawford v. Washington and Davis v. Washington, the Court Shifted Its Focus from Reliability to Testimonial Hearsay II. STATE AND FEDERAL COURTS HAVE APPLIED CRAWFORD AND DAVIS TO CHILD DECLARANTS BY FOCUSING ON THE QUESTIONER'S PURPOSE A. Before Davis, a Majority of State and Federal Courts Focused on the Declarant's Perspective B. After Davis, Courts Have Viewed the Questioner's Perspective as Dispositive Under the Primary-Purpose Test C. State Courts' Reasons for Ignoring the Declarant's Perspective Are Inconsistent with Bourjaily III. COURTS SHOULD ADOPT A REASONABLE-CHILD-DECLARANT APPROACH, CONSIDERING THE CHILD'S AGE, INTELLIGENCE, AND EXPERIENCE A. Four Reasons in Favor of a Reasonable-Child-Declarant Test 1. A child declarant is the cognitive inverse of both a co-conspirator making a statement in the furtherance of a crime and an unsuspecting caller 2. A child who cannot understand she is making an accusation or making statements relevant to a criminal investigation is not a "witness against" the accused 3. Ignorant children should not shoulder the adult-like responsibility of confronting a defendant unless their statement is testimonial 4. An objective approach to child declarants is more reliable than a purely subjective approach B. Courts Should Consider a Child's Age, Intelligence, and Experience 1. The child's age 2. The child's intelligence 3. The child's experience C. Courts Should Presume a Child Has Testimonial Capacity Unless a Prosecutor Shows Otherwise by a Preponderance of the Evidence IV. REBUTTING COUNTER ARGUMENTS TO A REASONABLE-CHILD-DECLARANT APPROACH A. A Reasonable-Child-Declarant Approach Is Not Contrary to the Davis Primary-Purpose Test B. A Reasonable-Child-Declarant Approach Is Objective C. The Confrontation Clause No Longer Depends on How Reliable the Hearsay Exception May Be D. A Reasonable-Child Approach Better Curbs Government Abuse than the Primary-Purpose Test E. Statements in Response to Police Questioning Are Not Per Se Testimonial F. The Court's Condemnation of White and Reference to Brasier Did Not Reject a Reasonable-Child Approach V. RECENT STATE CASES DEMONSTRATE THE NEED FOR A REASONABLE-CHILD-DECLARANT APPROACH A. Sexual Abuse--State v. Brigman B. Murder--State v. Siler CONCLUSION INTRODUCTION

Three-year-old Nathan Siler told Detective Larry Martin that he wanted to see his mother who, Nathan claimed, was "sleeping standing" in the garage. (l) Tragically, Nathan's mother was dead, hanging from a "yellow cord tied to the track of the overhead garage door." (2) Nathan told Martin that he had seen his father, Brian Siler, and mother fight in the garage the night before and that his father had placed a "yellow thing" around his mother's neck. (3) But Nathan apparently did not understand his mother was dead.

Because Nathan did not testify at Brian's murder trial and the trial court admitted Nathan's statements as evidence without Brian's counsel ever cross-examining Nathan, Brian claimed that the trial court had violated his Sixth Amendment right to confront the witnesses against him. (4) The Sixth Amendment of the U.S. Constitution states that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." (5) In Crawford v. Washington, the U.S. Supreme Court held that a "witness[] against" the accused was one "who bear[s] testimony." (6) According to the Court, the Confrontation Clause was primarily concerned with "testimonial hearsay." (7) Thus a witness is a person who makes a statement that is "testimonial" by nature. Based on this definition, the Court held that the Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." (8) Brian claimed that his son, Nathan, was such a witness.

In Davis v. Washington, (9) the Court further clarified the meaning of testimonial. The Court held that:

[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. (10) Commentators have referred to this standard as the primary-purpose test.

Following the Davis primary-purpose test, the Ohio Supreme Court ruled that Nathan's age and limited understanding were irrelevant when deciding whether Nathan's statements to Martin were testimonial. (11) The court concluded that because Martin's primary purpose in questioning Nathan was to "establish past events possibly relevant to a criminal prosecution," (12) Nathan's statements were testimonial. In other words, Nathan was acting as a witness. Because Nathan did not testify at Brian Siler's trial, the Ohio Supreme Court held that the trial court violated Brian Siler's "right ... to be confronted with the witnesses against him." (13)

The Ohio Supreme Court's decision in State v. Siler frames two key issues: First, under the U.S. Supreme Court's interpretation of the Confrontation Clause in Crawford and Davis, can a court consider a declarant's perspective when determining whether an out-of-court statement to a law enforcement official is testimonial? Second, if the declarant is a child, can a court consider subjective factors such as a child's age, intelligence, and experience or only consider out-of-court statements from a purely objective witness's perspective?

A majority of state courts have interpreted Davis just as the Ohio Supreme Court has, holding that because a declarant's perspective is irrelevant under the primary-purpose test, it need not consider whether a child's age, intelligence, or experience should factor into its calculus. To these courts, the controlling question is whether the declarant makes statements during an ongoing emergency and whether the law enforcement official or law enforcement agent's primary purpose was "to establish or prove past events potentially relevant to later criminal prosecution." (14)

As courts have applied Davis to child declarants, they have not adequately considered a rationale and line of precedent noted in Crawford that more aptly applies to young children--Bourjaily v. United States. (15) The Crawford Court stated that certain statements were "by their nature ... not testimonial," such as "statements in furtherance of a conspiracy." (16) This conclusion seemed so obvious that the Court did not explain the rationale. Instead of a rationale, the Court simply cited Bourjaily as an example of a nontestimonial statement made in furtherance of a conspiracy. (17) Several federal courts of appeals have spelled out what seemed to strike the Court as obvious: a statement made in furtherance of a conspiracy is typically not testimonial because a coconspirator "would not anticipate his statements being used against the accused in investigating and prosecuting the crime." (18) Even after Davis, this rationale is still alive. The Davis Court stated, "[O]f course even when interrogation exists, it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate." (19) Similar to a coconspirator, children who do not understand that they are reporting wrongful conduct cannot understand that they are making statements that could have negative consequences for a suspect. Without that understanding, a child declarant is making a statement that, "by [its] nature," (20) is not testimonial.

In contrast to state courts' rigid application of Davis, the federal courts of appeals's interpretation of Bourjaily accounts for the core characteristic of a testimonial statement--a statement's accusatory nature. That same rationale should extend to child declarants. To determine whether a child declarant's statement is testimonial, courts should both evaluate an out-of-court statement from a declarant's perspective and account for the subjective factors of a child's age, intelligence, and experience. At the same time, courts should recognize that a child can make an accusation and can anticipate that her statements could be relevant to a criminal investigation. Therefore, a statement should be testimonial when a reasonable child of like age, intelligence, and experience would understand that her statement is an accusation that will adversely affect the perpetrator or that the information is relevant to an investigation. This approach to testimonial hearsay will better preserve the American ideal that when someone "accuses you, he must come up in front. He cannot hide behind the shadow." (21) The state courts' inflexible interpretation of Davis has diluted this ideal by placing the onus of confronting the accused on children who have not made an accusation.

This Note advocates a reasonable-child approach to child declarants under the Confrontation Clause. As further explained in Part III.A, a reasonable-child approach is superior to the primary-purpose test and a purely objective- or purely subjective-witness test because it better (1) comports with the Court's coconspirator jurisprudence; (2) reflects that the Confrontation Clause protects against admitting accusations and statements relevant to a criminal investigation...