Throwing a toy wrench in the 'greatest legal engine': child witnesses and the confrontation clause.

Author:Clow, Jonathan

    Cross-examination of witnesses has often been called the "greatest legal engine ever invented for the discovery of truth." (1) Enshrined in the Confrontation Clause of the Sixth Amendment, (2) this most basic feature of an adversarial legal system guarantees criminal defendants the right to have the prosecution's witnesses testify in open court and the opportunity to question said witnesses in front of the jury. (3) Cross-examination is premised on the idea that face-to-face confrontation in open court between these witnesses and the defendant provides the strongest assurance of accurate testimony and, consequently, of protecting defendants from unjust convictions. (4) Through cross-examination, a defendant can introduce facts from the witness not raised on direct examination and challenge the credibility of that witness, both of which are relevant to a jury's determination of guilt. (5) In this way, cross-examination facilitates the fact-finding purpose of criminal trials. The importance of this right to the United States criminal justice system cannot be questioned. (6)

    The premise underlying this "greatest legal engine" is challenged, however, when children are the "witnesses against" (7) the defendant. Social science and psychological research in recent decades suggest that cross-examination of child witnesses could actually interfere with the discovery of truth. A lesser capacity for recalling past events, a lack of understanding of the criminal justice system, and the trauma of testifying in court all raise concerns about the accuracy of child testimony compared to that of adults. (8) Of perhaps the greatest concern, research continually shows that children can be highly suggestible, (9) making leading questions--a common tactic during cross-examination--particularly dangerous in the case of child witnesses. While cross-examination can be used to elicit the truth from adversary witnesses, the same suggestive techniques could manipulate vulnerable children to testify to just the opposite. (10)

    This Note explores this contradiction: the Confrontation Clause, constitutionalizing the right of cross-examination to ensure that convictions are based solely on accurate and reliable testimony, requires, if read literally, that child witnesses submit to a procedure which could undermine that very purpose. (11) The history and purpose of the Confrontation Clause suggest that cross-examination is not required in those circumstances. In the case of child witnesses, modern Confrontation Clause jurisprudence should take into account public policy concerns regarding the development of children and permit the admission of hearsay--testimony regarding a child's statements from someone other than the child--where cross-examination would not advance the fact-finding goals of a criminal trial. In short, children should not be treated as adults for purposes of confrontation. At the same time, this Note does not propose doing away with cross-examination of child witnesses altogether and should not be read as minimizing the importance of cross-examination to American criminal justice. However, it is important to recognize the oft-documented risks associated with children undergoing cross-examination. Amidst this backdrop, this Note makes the modest claim that the Constitution does not necessarily impose a categorical requirement that child witnesses, just as adults, testify and be subject to cross-examination.

    This Note starts, in Part II, by discussing the history, purpose, and scope of the constitutional right of confrontation. Particular attention is given to the longstanding purpose of the Confrontation Clause: ensuring the reliability of evidence put before the trier of fact. In 2004, the Supreme Court decided Crawford v. Washington, (12) which represented a momentous change in Confrontation Clause analysis. But while the Clause's jurisprudence has shifted, its underlying purpose has remained the same. Part III begins with a brief history of its own--that of the use of child witnesses during and since the adoption of the Sixth Amendment. This survey shows that, throughout United States history, courts have almost always treated children as exceptional. This Part ends with child witnesses today and what psychological research tells us about the validity of child testimony under the rigors of cross-examination. Part IV explores the treatment of children in state courts before and after Crawford and shows that, despite much scholarship devoted to the contrary, children's out-of-court statements, just as those by adults, are generally barred under the Supreme Court's new rule. Part V makes the argument that the Confrontation Clause, and the Constitution in general, does not require strict enforcement where its purpose would be undermined. The difficult balance to be struck between the value of cross-examination and risks of confronting child witnesses is raised, and other practical solutions to this problem are also explored. Part VI concludes.


    An initial discussion of the historical purpose and scope of the Confrontation Clause serves two purposes. First, this history demonstrates that the longstanding, recognized purpose of the Confrontation Clause is to ensure the reliability of evidence before the trier of fact in criminal proceedings. Despite the Supreme Court's jurisprudential shift--from treating the Confrontation Clause as a substantive guarantee to merely a procedural one--in Crawford v. Washington, this underlying purpose remains the same. Second, rooted in this traditional purpose is the idea that the constitutional right of confrontation may give way to overriding concerns of public policy. The lessons of this history are that the Confrontation Clause has never been read to categorically require confrontation in all cases and the Clause's requirements should be determined in light of its underlying purpose.

    1. The History and Purpose of the Confrontation Clause

      Justice Harlan famously wrote that the Confrontation Clause "comes to us on faded parchment." (13) What Justice Harlan meant, and what subsequent justices and scholars have echoed, is that the history of the Confrontation Clause provides little insight into its meaning. (14) Neither the recorded debates at the Constitutional Convention, (15) nor other historical documents from the Framing period, (16) provide much guidance. Despite this dearth of historical evidence, the Supreme Court--most recently in Crawford itself--has generally traced the roots of the Confrontation Clause to English common law. In particular, the American right of confrontation emerged in response to the civil-law method of deposing witnesses ex parte before trial and admitting affidavits of their statements in lieu of live testimony. (17) Under this school of thought, the Sixth Amendment incorporated English common law as it existed at the writing of the Bill of Rights and was intended to ensure defendants had a right of confrontation for certain prosecution witnesses. (18) Still, this historical account as a basis for Confrontation Clause jurisprudence is not without critics and detractors. (19)

      Historical ambiguity aside, the Supreme Court has recognized that the underlying purpose of the Confrontation Clause is to ensure the reliability of evidence before the trier of fact in criminal trials. The right of confrontation does so in two ways. (20) First, confrontation serves a functional purpose: ensuring the accuracy of the fact-finding process and protecting criminal defendants from unjust convictions. (21) The Supreme Court has long documented the practical benefits of confrontation:

      Confrontation: (1) insures that the witness will give his statements under oath--thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the 'greatest legal engine ever invented for the discovery of truth'; (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility. (22) In theory, witnesses are more likely to testify truthfully--and jurors better able to judge the truthfulness of witnesses--if they are required to testify in court, under oath, and in front of the jury and defendant. Cross-examination allows defendants to sift the conscience of witnesses, expose weaknesses in their testimony, and pose questions unasked on direct examination. (23) In short, confrontation advances the goals of the criminal process itself: discovering the truth and accurately determining the innocence or guilt of criminal defendants. Second, the Confrontation Clause serves the symbolic purpose of ensuring seemingly fair and evenhanded criminal prosecutions. (24) Permitting confrontation of prosecution witnesses allows defendants an opportunity to fully defend against their charges and avoids the impression that defendants are convicted through the secrecy and conniving of the government. These twin goals demonstrate that the primary concern of the Confrontation Clause is the reliability of evidence. (25) Crawford and its progeny have not altered that focus. (26)

    2. The Right of Confrontation

      Exactly what the right of confrontation guarantees is another source of debate. The muddled history of the Confrontation Clause raises the same problems here. (27) The language of the Clause does little else to clarify its meaning. Tucked amidst other so-called trial rights of the Sixth Amendment, the Clause reads: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." (28) Read literally, the Clause says nothing about hearsay. It requires nothing more than for prosecution witnesses who do actually testify to do so in a particular way--in court and subject to...

To continue reading