The testimonial nature of multidisciplinary team interviews in Massachusetts: applying Crawford to the child declarant.

• Author: Ruzzo, Laura E.

[T]he confrontation issues posed by statements made by children are enormously important, complex, and troubling. Sooner or later, the Supreme Court will have to begin resolving many of these issues. (1)

INTRODUCTION

The Confrontation Clause of the Sixth Amendment embodies the adversarial system of justice that defines American jurisprudence. (2) Haunted by the injustice suffered by Sir Walter Raleigh, the Framers of the United States Constitution specifically granted a criminal defendant the right to confront an adverse witness. (3) The right of confrontation provides an opportunity for the defendant to cross-examine an adverse witness in the hopes of undermining the witness' testimony or credibility. (4) Those witnesses who choose to testify against a criminal defendant, thus jeopardizing the defendant's life and liberty, must do so under the pains and penalties of perjury, and subject to cross-examination. (5)

The confrontation right is inextricably intertwined with the evidentiary Hearsay Rule. (6) The Hearsay Rule states that an out-of-court statement asserted for the truth of the matter is not admissible except as provided by the Rules of Evidence or the Supreme Court, and in accordance with the Constitution. (7) The interplay between the Hearsay Rule and the confrontation right creates the possibility that hearsay evidence may be admissible under the Rules of Evidence, yet banned by the Confrontation Clause, and vice versa. (8) Therefore, hearsay exceptions may permit hearsay to be admitted, even though such admittance violates the defendant's constitutional rights. (9) To determine whether a hearsay statement is admissible, a court must first determine whether the evidence falls within a recognized hearsay exception, and if so, must then determine whether its admittance is consonant with the Sixth Amendment. (10)

Establishing equality between the prosecution and defense in a criminal trial is essential to the administration of justice. (11) However, when an adult defendant is charged with sexually abusing, molesting, or raping a child, the constitutional safeguards that protect the adult accused from the child victim may seem unfair, superfluous, or even offensive from societal and legal viewpoints. (12) The societal interest in such cases is twofold: to limit the amount of trauma the child victim suffers during the course of the trial; and, to maximize the amount of available evidence. (13) From a legal viewpoint, child sexual abuse ("CSA") cases are difficult to prosecute because there is often a lack of physical evidence or eyewitnesses, and children may be unavailable to testify. (14) Furthermore, because children often recant, concerns involving "suggestibility, manipulation, coaching, or confusing fact with fantasy" lead jurors to view their testimony more skeptically than that of adults. (15)

Forensic interviews conducted by multidisciplinary teams ("MDT") assist prosecutors in overcoming these evidentiary hurdles because, if admitted, these interviews provide the non-testifying child an opportunity to be heard. (16) An MDT is established to provide a well-coordinated response to child abuse allegations in a collaborative manner amongst the various team members, which generally include social workers, prosecutors, police officers, or mental and medical health professionals. (17) This coordinated response lessens the number of interviews a child must sit through in an effort to reduce any additional trial-related trauma. (18) The MDT approach in conducting forensic interviews of CSA victims has been extremely successful and "[i]t is now well accepted that the best response to the challenge of child abuse and neglect investigations is the formation of an MDT" as evidenced by all fifty states enacting legislation addressing or promoting the use of multidisciplinary or multi-agency teams in child abuse cases. (19)

Despite the success of MDTs in investigating and prosecuting child abuse cases, the recent shift in Confrontation Clause jurisprudence announced in Crawford v. Washington (20) has severely limited, if not entirely banned, the admission of child hearsay statements elicited during forensic interviews. (21) In Crawford, the Supreme Court articulated a new standard for determining the admissibility of out-of-court statements made by declarants who are unavailable to testify at trial: testimonial hearsay is inadmissible unless the declarant is available to testify at trial and the defendant had a prior opportunity for cross-examination. (22) This standard has had a particular impact on CSA cases because the child is most often the only eyewitness, and so it is critical for the prosecution to be able to introduce the child's testimony, whether in the form of in-court testimony or hearsay. (23) Furthermore, the Supreme Court's failure to provide a more comprehensive definition of "testimonial" has led to confusion and inconsistent judgments in the lower courts regarding the admission of child victims' statements made during MDT interviews. (24) This Note discusses federal and Massachusetts case law regarding the confrontation right and its effect on the admissibility of a child victim's statements made during an MDT interview. (25) More specifically, this Note analyzes possible classifications of such statements under Crawford's three formulations of testimonial statements. (26)

Parts I and II provide a brief history of federal and Massachusetts Confrontation Clause jurisprudence. (27) Part III discusses the relevant Massachusetts statutes and case law in determining whether an MDT forensic interview is testimonial under Crawford. (28) Part IV contends that the Massachusetts child hearsay exception is unconstitutional. (29) Lastly, Part V analyzes MDT interviews, both procedurally and substantively, to determine whether they should be admitted against a criminal defendant in Massachusetts under Crawford and its progeny. (30)

1. INTERPRETING THE CONFRONTATION CLAUSE

   In Ohio v. Roberts, (31) the Supreme Court established a two-part interpretation of the Confrontation Clause derived from the two underlying principles of hearsay evidence: necessity and reliability. (32) Roberts held that a hearsay statement made by an unavailable declarant satisfies the Confrontation Clause "only if it bears adequate 'indicia of reliability.'" (33) Roberts conditioned the reliability of all hearsay evidence--and therefore its admissibility--on whether the hearsay fell within a "firmly rooted hearsay exception" or bore "particularized guarantees of trustworthiness." (34) By defining Confrontation Clause jurisprudence through hearsay principles, the Roberts test permitted evidence law to control constitutional doctrine. (35)

   In a radical departure from the Roberts analytical approach, the Supreme Court, in Crawford v. Washington, (36) reinterpreted the Confrontation Clause based on an analysis of the history of the confrontation right and its adoption into the U.S. Constitution. (37) The recurring theme in the Court's historical analysis was the Framers' abhorrence of interrogatories and inquisitorial practices used in both the development of evidence and at trial. (38) This theme of abhorrence rested on two "principal evil[s]" the Framers sought to eradicate from the common law by cloaking the right of confrontation with constitutionality. (39) Replacing the two principles of hearsay, the "principal evil[s]" formed the new pair of lenses for examining the meaning and purpose of the Sixth Amendment. (40)

   The first identified evil concerns the civil law mode of criminal procedure and its use of ex parte examinations, by deposition or private judicial examination, as evidence against the accused. (41) Writing for the Court, Justice Scalia derived two inferences from this evil. (42) First, because the Framers' concerns involved legal practices that occurred outside the courtroom, the Court rejected the view that the Confrontation Clause applied only to in-court testimony. (43) By expanding the breadth of the Confrontation Clause to out-of-court statements, the Court eradicated any existing control that the Rules of Evidence had over confrontation issues and therefore restored each legal source's independence. (44) Recognizing its limitations, however, Justice Scalia next conceded that the clause is not applicable to all forms of hearsay. (45) When combined, the two inferences drawn from this first evil reveal a class of hearsay that is subject to constitutional analysis, and a class that is not: "testimonial" and "nontestimonial" hearsay. (46)

   The second "principal evil" acknowledges exceptions, or the lack thereof, to the constitutional ban of testimonial hearsay. (47) Remaining faithful to his historical analysis, Justice Scalia determined that the Framers did not intend to recognize an exception, developed by the courts or future legislation, to the Sixth Amendment. (48) Therefore, only those exceptions existing at the time of the founding, which were unavailability and a prior opportunity to cross-examine, are recognized. (49) Combining these exceptions with the concept of testimonial and nontestimonial hearsay, the Court held that testimonial statements are only admissible against a criminal defendant if the declarant is unavailable to testify and the defendant had a prior opportunity for cross-examination. (50)

2. ATTEMPTING TO DEFINE TESTIMONIAL THROUGH FEDERAL & MASSACHUSETTS CASE LAW

   1. THE CORE CLASS OF TESTIMONIAL STATEMENTS: Crawford v. Washington

      In Crawford v. Washington, the Court concluded that testimonial statements implicate the Confrontation Clause because such statements cause the declarant to be a "witness" against the accused within the meaning of the Sixth Amendment. (51) Classifying a statement as testimonial is thus the hook upon which a constitutional analysis hangs; without this classification, the statement's admissibility is primarily governed by the Rules of Evidence. (52)...