NACDL News
January/February 2006, Page 18

The Kid Gloves Are Off : Child Hearsay After Crawford v. Washington
By Daniel E Monnat

As readers of The Champion are well aware, in Crawford v. Washington, the United States Supreme Court radically changed the way the Sixth Amendment Confrontation Clause is analyzed.1 As this issue goes to press, the Court is waiting for merits briefs in its first post-Crawford Sixth Amendment cases.2 These cases are sure to offer some elucidation of Crawford, but they may not be decided for some time yet, and neither involves child hearsay. While the Court will likely address child hearsay in light of Crawford at some point in the future, counsel faced with such evidence today must struggle with a wide range of child-hearsay issues that have arisen since Crawford. This article will address those issues and offer arguments for keeping accusatory child hearsay out of court.

The bottom line of Crawford is:

Where testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.3

To fully understand the meaning of Crawford, a short refresher course in pre-Crawford law is required. In Ohio v. Roberts, the Supreme Court held that the prosecution could present any number of unconfronted out-of-court statements without putting the declarant on the witness stand just so long as a judge found that those statements were reliable.4 Under Roberts, reliability could be shown in one of two ways: either evidence fell within a “firmly rooted hearsay exception,” or it demonstrated “particularized guarantees of trustworthiness,” all in the eyes of the judge.5 If the out-of-court statements satisfied either one of these prerequisites, they were judicially endorsed as reliable and admitted into evidence; confrontation was simply denied.

After Roberts, the lower courts tended to interpret Sixth Amendment confrontation law synonymously with statutory hearsay law,6 issuing parallel rejections of both constitutional and statutory objections to the admission of out-of-court statements.

But all that has changed with Crawford. The Crawford majority eschewed the old trust in judicial reliability findings and introduced a wholly new approach to analyzing the admissibility of out-of-court statements under the Sixth Amendment. Under Crawford, if the prosecution wishes to present out-of-court testimonial statements without putting the declarant on the witness stand, judicial findings of reliability are irrelevant. Instead, the prosecution may only present those statements if (1) the
declarant is unavailable, and (2) the accused had a prior opportunity to confront the declarant. Crawford holds great promise for keeping statements out of court that would have been admissible under Roberts — including statements by child witnesses. In some cases Crawford may even keep the accused out of court — when the prosecution chooses to dismiss the charges rather than force a reluctant child witness to the stand. Although some courts have done their best to limit the impact of Crawford, there are many good resources available to counsel litigating child-hearsay issues no matter the jurisdiction.

I. Preserve Those Crawford Claims!

This cautionary note gets top billing to emphasize the distinction between raising hearsay and Sixth Amendment claims both at trial and on appeal. This distinction makes it necessary to invoke both the Sixth Amendment and the rule against hearsay explicitly when objecting to the admission of out-of-court statements. A recent Tenth Circuit case painfully illustrates the point. In United States v. Solomon, counsel dutifully objected at trial to the prosecution’s introduction of out-of-court statements, but described the basis for the objection only as “hearsay,” failing to incant the magic words “Sixth Amendment.”7 Counsel was undoubtedly encouraged about his convicted client’s appeal by the appearance of Crawford two months after trial. Unfortunately, the Tenth Circuit held that counsel’s failure to lodge a constitutionally based objection at trial or to argue plain constitutional error on appeal prohibited the court from considering counsel’s objection under Crawford.8 The upshot was that the court considered and rejected the hearsay claim under the government-friendly nonconstitutional harmless-error standard, whereas it would have considered (and might have been persuaded by) a properly-preserved constitutional claim under the defendant-friendly Chapman standard.9

II. Identifying Testimonial Statements

Since the Crawford requirements apply only to testimonial statements, the starting point of any confrontation-clause analysis is this: is the statement testimonial?
Given the absence of clearer guidance from the Crawford majority, the initial temptation for some courts and practitioners has been to answer this question by referring back to the more-familiar hearsay rules and asking, for example, “is the statement an excited utterance?” or “is the statement against interest?” —  and then concluding that if the answer to that question is “yes,” then the statement is not testimonial.10 This approach is backwards and contrary to the clear message of Crawford, which held that “[w]here testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence.”11 As the Sixth Circuit has observed, “[i]f there is one theme that emerges from Crawford,” it is that the right to confrontation “is no longer subsumed by the evidentiary rules governing the admissibility of hearsay statements.”12

And so, again, the starting point of any confrontation-clause analysis is this: is the statement testimonial?

The Crawford majority declined to offer comprehensive definitions of testimonial or nontestimonial, instead only identifying the outer limits of each. Nontestimonial statements under Crawford include “[a]n off-hand, overheard remark,” or “a casual remark to an acquaintance,”13 while testimonial statements, “at a minimum,” include prior in-court testimony and “police interrogations.”14 The Court also referred favorably to definitions set forth in the Petitioner’s brief, in prior case law, and in NACDL’s amicus brief:

Various formulations of this core class of “testimonial” statements exist: “ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,” . . . “extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,” . . . [and] “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial” . . . .15

These minimum definitions from Crawford should not unduly limit the lower courts’ construction of the term “testimonial.” As one court has noted, “[i]t is apparent that the Court’s . . . attempts at defining the term are meant to expand the definition of what is a testimonial statement, not to limit or qualify the specific examples given.”16 The broadest testimonial category recognized in Crawford (and therefore the most favorable for the accused) is the category described as “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”17 A more concise description of this category might be “statements that an objective declarant would reasonably understand might be used prosecutorially.”

Useful resources for understanding and urging the application of Crawford to statements within this category include Jeffrey L. Fisher’s superbly-organized and frequently-updated online outline of post-Crawford cases18 and Professor Richard D. Friedman’s confrontation blog featuring short, lucid essays and reader responses on a variety of Crawford issues19 — both of which will be cited throughout this article — and the Sixth Circuit’s decision in United States v. Cromer.20

In Cromer, the Sixth Circuit adopted the broad definition of testimonial urged by Professor Friedman, noting that the Supreme Court relied on Professor Friedman’s scholarship “in framing its re-definition of the Confrontation Clause.”21 The court described Professor Friedman’s approach as follows:

Professor Friedman . . . urges a broader definition of “testimonial” that would include any statement “made in circumstances in which a reasonable person would realize that it likely would be used in investigation or prosecution of a crime.” Richard D. Friedman & Bridget McCormack, Dial-In Testimony, 150 U. Pa. L. Rev. 1171, 1240-41 (2002). Based on his proposed definition, Friedman offers five rules of thumb:

A statement made knowingly to the authorities that describes criminal activity is almost always testimonial. A statement made by a person claiming to be the victim of a crime and describing the crime is usually testimonial, whether made to the authorities or not. If, in the case of a crime committed over a short period of time, a statement is made before the crime is committed, it almost certainly is not testimonial. A statement made by one participant in a criminal enterprise to another, intended to further the enterprise, is not testimonial. And neither is a statement made in the course of going about one’s ordinary business, made before the criminal act has occurred or with no recognition that it relates to criminal activity.22

The court found Professor Friedman’s definition “both well-reasoned and wholly consistent with the purpose behind the Confrontation Clause,” and, though broader than some definitions, “necessary to ensure that the adjudicative system does not effectively invite witnesses to testify in informal ways that avoid confrontation.”23

This definition sensibly assumes that an objective declarant would reasonably understand that most accusatory statements — regardless of to whom they are made — might be used prosecutorially. As Professor Friedman has explained elsewhere, “[n]ot all testimonial statements are accusatory. But perhaps all accusatory statements not made to the perpetrator or someone who would be expected to be sympathetic to the perpetrator should be considered testimonial.”24

Labeling all accusatory statements testimonial will go a long ways towards keeping a child’s often-repeated accusations about the accused out of court unless the child testifies. But first, courts have to apply this label to the statements of children.

A. Are Children Capable Of Making Testimonial Statements?

Courts must first understand that there can be no policy-based child-hearsay exception to Crawford. Justice Scalia — who authored the majority opinion in Crawford — has elsewhere rejected the idea that child hearsay should be exempted from the usual rules of confrontation, noting that [t]he ‘special’ reasons that exist for suspending one of the usual guarantees of reliability in the case of children’s testimony are perhaps matched by ‘special’ reasons for being particularly insistent upon it in the case of children’s testimony. Some studies show that children are substantially more vulnerable to suggestion than adults, and often unable to separate recollected fantasy (or suggestion) from reality.25

More to the point, the Crawford majority itself warned that “[t]he Constitution prescribes a procedure for determining the reliability of testimony in criminal trials, and we, no less than the state courts, lack authority to replace it with one of our own devising.”26

Given Crawford’s unyielding approach to confrontation, it is no wonder that it appears only one post-Crawford case has even entertained the suggestion that there might be a child-hearsay exception to Crawford.27 In Snowden v. State, the Maryland Supreme Court quickly rejected the public-policy argument, noting that “[e]ven though there are sound public policy reasons for limiting a child victim’s exposure to a potentially traumatizing courtroom experience, we nonetheless must be faithful to the Constitution’s deep concern for the fundamental rights of the accused.”28

In addition to rejecting any policy-based arguments for limiting Crawford, courts must also reject proposals that they take an overly-literal approach to the question whether an objective child-declarant would reasonably understand that a statement might be used prosecutorially. Some prosecutors have argued that this question must be viewed from the perspective of the particular child at issue: since young children are not capable of understanding the meaning of “prosecutorial,” they are therefore not capable of making testimonial statements. Some courts have simply avoided this question by finding other factors in the testimonial calculus more important.29 Other courts have held that the proper perspective is that of a reasonable adult in the child’s position.30

Professor Friedman proposes a sensible compromise. He suggests that whether a statement is testimonial might be determined from a child-declarant’s perspective, but that the statement is testimonial not only if the child understood its potential for formal prosecutorial use, but also if “the child understood that she was reporting wrongdoing and that some adverse consequences — including that Mommy would get mad — would be visited on the wrongdoer.”31

  In other words, if the child understands the concept of tattling, the child may make a testimonial statement. This approach will likely appeal to courts hesitant to adopt an objective-adult perspective, and its generous interpretation of a child’s prosecutorial understanding guards against misuse. Indeed, if the definition of testimonial were limited, as some prosecutors would have it, to those statements that a child would reasonably expect to be used in a formal prosecution, then the prosecution would be allowed to present unconfronted statements elicited by wily questioners who hide their prosecutorial intent from the unsuspecting but impressionable young declarant.32
Finally, it should be noted that Professor Friedman has suggested that “some very young children” are incapable of making testimonial statements because their understanding about the nature of what they are reporting “is so undeveloped that their words ought to be considered more like the bark of a bloodhound than like the testimony of an adult witness.”33 Where that line may be drawn remains to be seen, but it should not be drawn in any case absent expert testimony to support the prosecution’s claim that its star child witness is no more mentally-developed than a barking dog.

B. Does Crawford Cover All Accusatory Statements By Children?

Under the Sixth Circuit’s broad definition of testimonial in Cromer, all accusatory statements by children — whether made to authorities or not — should be deemed testimonial. Unfortunately, other courts have not read Crawford so broadly.
The Crawford majority recognized that the “[i]nvolvement of government officers in the production of testimony with an eye toward trial” presents a “unique potential for prosecutorial abuse.”34 Thus, government involvement may be sufficient, though not necessarily required, to render a statement testimonial. Some courts have interpreted this message in a curiously topsy-turvy manner and concluded that government involvement is required, but is not necessarily sufficient, to render a statement testimonial. Consequently, two ways in which courts have tried to put the brakes on Crawford are by limiting the definition of testimonial to statements produced by government officials, and excluding excited utterances, even to government officials, from the category of testimonial statements. Neither of these approaches is faithful to Crawford.

1. Requiring Government Involvement
Many courts have concluded that government involvement is necessary before a statement may be deemed testimonial.35 Only a few courts have recognized that children who make accusatory statements may reasonably understand that they are, essentially, tattling, and that the fact that the listener is not a government official is irrelevant.36 This recognition is consistent with Crawford and Cromer, and should ultimately gain favor.

Even courts that insist on government involvement should find it when a child makes statements, for instance, to a teacher, social worker, or health care provider who is obligated by law to report suspected abuse or who was engaged to examine the child in anticipation of a criminal prosecution,37 or to any other person whose assistance the child explicitly sought for the purpose of going to the police.38

2. Excluding Excited Utterances

One of the most unsettling developments in the caselaw since Crawford involves its application to statements that might be deemed excited utterances — particularly statements made to police officers at the scene of an alleged crime and to dispatchers during 911 calls. Many jurisdictions have held that the excited nature of such statements renders them nontestimonial, and the fact of government involvement is insufficient to conclude otherwise.39 This conclusion is in direct conflict with every dictate of Crawford.

First, the Crawford majority itself suggested that spontaneous declarations may be testimonial, especially when made to an investigating police officer.40
Second, as we have already seen, the Crawford majority made it clear that hearsay exceptions cannot define confrontation rights.41 And insofar as the lower courts are trying to carve out a policy exception to Crawford for declarants in emergency situations, again, the Crawford majority soundly rejected the notion that courts can create policy exceptions to constitutional imperatives.

Finally, the analytical approach the courts are taking in this context is flawed. Courts concluding that excited utterances are not testimonial have focused exclusively on the intent of the declarant in making the statements and found an intent to get help inconsistent with an intent to prosecute.42 Instead, courts should focus on the declarant’s understanding, and — given the obvious government involvement in 911 calls and on-scene investigations — conclude that objective declarants (even child-declarants) would reasonably understand that their cries for help might be used prosecutorially, or at the very least, “make the police officer mad” at the alleged perpetrator.43
This confusion over excited utterances arises frequently both in cases involving child hearsay and in those involving adult accusations of domestic violence. Fortunately, the Supreme Court will soon have the opportunity to declare that there is no excited-utterance exception to Crawford. The Court has granted writs of certiorari in two cases involving adult declarants — one of whom made accusatory on-scene statements to a police officer, and one of whom made accusatory statements made during a 911 call.44

III. Making The Most Of Prior Opportunities For Confrontation

While Crawford makes it clear that the testimonial statements of an absent declarant may not be admitted at trial if the accused had no “prior opportunity for cross-examination” of the declarant,45 it provides even less guidance about what “opportunity” might be sufficient than it does regarding the meaning of testimonial. Cautious defense counsel should consider Crawford fair warning that squandered opportunities may be viewed as waivers. In particular, if the prosecution produces a child for a preliminary hearing or a deposition, defense counsel might be well-advised to conduct as full a cross-examination as is possible given the state of discovery at the time if there is any doubt whether the child might appear at trial. While a couple of courts have questioned whether probable-cause preliminary hearings and discovery-driven depositions constitute adequate opportunities for confrontation,46 commentators are encouraging prosecutors to present witnesses at these hearings on the assumption that Crawford will tolerate the admission of their testimonial statements at trial if they later become unavailable.47

IV. Establishing Unavailability

By the time Crawford was decided, the declarant’s unavailability was no longer considered a constitutional prerequisite for admitting many out-of-court statements.48 The Crawford majority re-established unavailability’s constitutional status.49 Of course, if the accused has had no prior opportunity to cross-examine an absent declarant, then defense counsel is not likely to object to the prosecution’s claims that the declarant is unavailable, because, in that case, the declarant’s prior testimonial statements cannot be admitted consistent with Crawford. On the other hand, if a finding of unavailability is likely to be accompanied by a finding either that the accused did have an adequate prior opportunity for confrontation or that the accused caused the declarant’s unavailability and therefore forfeited all rights to confront the declarant (see below), then the declarant’s status will certainly be contested.

In the case of child-declarants, courts should proceed with caution in labeling a physically-available child unavailable unless and until the prosecution demonstrates a genuine effort to bring the child to trial, and proves that the child is genuinely incapable of testifying.

A. Prosecution Efforts To Bring The Child To Trial

The United States Supreme Court has held that where the prosecution makes “absolutely no effort to obtain the presence” of a witness, then the prosecution cannot claim that the witness is unavailable, because “[t]he right of confrontation may not be dispensed with so lightly.”50

This is a particularly important point if the witness is a child. Professor Friedman has suggested that unavailability might be proved (in the forfeiture context, but equally applicable here) only if “the prosecutor, with the cooperation of the child’s caretakers, makes a genuine effort by appropriate means to get the child to testify, but the child fails to do so.”51 Courts should reject claims by the prosecution that this is an impossible task. One former prosecutor has reported that “prosecutors in many jurisdictions have learned that children can in fact be enabled to testify and be available for cross-examination.”52 Obligating the prosecution to at least try to present child witnesses is necessary to motivate prosecutors “to acclimate the child witness[es] to the courtroom setting, prepare them for the trial and make them available for the rigors and trauma of cross-examination.”53

B. Incapable Of Testifying

Where child sexual-abuse cases are concerned, the American Prosecutors Research Institute has suggested that a defendant’s alleged abuse of the child itself may render the child psychologically unavailable to testify.54 And some courts have previously held that the possibility that a child will be psychologically traumatized by testifying is sufficient to establish the child’s unavailability under statutory definitions of “unavailable.”55

But the United States Supreme Court has never held that the possibility of psychological trauma alone is sufficient evidence of unavailability for constitutional purposes. Instead, Justice Scalia has cautioned that if a child’s reluctance to testify is caused by his or her fear of in-court confrontation alone, then the child should not be deemed unavailable:

To say that a defendant loses his right to confront a witness when [confrontation] would cause the witness not to testify is rather like saying that the defendant loses his right to counsel when counsel would save him, or his right to subpoena witnesses when they would exculpate him, or his right not to give testimony against himself when that would prove him guilty.56

The Court came closest to a relevant definition of unavailability in Maryland v. Craig.57 In Craig, the Court held that a child-complainant could testify via closed-circuit television consistent with the confrontation clause if the prosecution first made an adequate showing that, inter alia, “the emotional distress suffered by the child witness in the presence of the defendant is more than de minimus.58 The Court declined to decide “the minimum showing of emotional trauma required,” because the Maryland statute at issue required a determination “that the child witness will suffer ‘serious emotional distress such that the child cannot reasonably communicate,’” and this standard “clearly suffices to meet constitutional standards.”59 In Craig, the finding of unavailability did not result in a total denial of confrontation, but only in a limited type of confrontation at trial. Courts should demand a similar, if not stronger, showing of unavailability before denying confrontation at trial altogether.

Without more guidance from the Supreme Court on the sufficiency of psychological trauma to prove unavailability, it is useful to turn again to Professor Friedman. He has argued that a child should not be deemed unavailable simply because testifying “would cause her great trauma.”60 This is because (1) “child witnesses are not alone in finding testimony traumatic”; (2) “available evidence suggests that testifying does not usually have severe, long-term effects” on children; and (3) “there are better alternatives, more consonant with the accused’s rights than simply doing without [the child’s] live testimony.”61 Instead, a child should only be deemed unavailable if he either refuses to testify or is in fact incapable of testifying.62

This argument is supported by a recent Florida Appellate Court opinion, Contreras v. State.63 The Contreras court reversed the defendant’s sexual-battery and molestation convictions after concluding that the trial court erroneously admitted testimonial statements made by the complainant (the defendant’s daughter) to a sexual-abuse evaluator. The court also rejected the state’s argument that the complainant was “unavailable” for constitutional purposes:

We do not believe the trial court’s finding that the child was unavailable to testify satisfies the Confrontation Clause requirement of physical unavailability. Generalized “harm” from testifying does not make a witness unavailable within the meaning of the Sixth Amendment. The act of testifying in a public courtroom is indeed for most people a trauma, and for none more surely than young children. But the essential attribute of our accusatory system established by the Confrontation Clause is the right of the defendant to confront the testimony of live witnesses in court. If witnesses are unavailable for Confrontation Clause purposes merely because of subjective mental anguish and emotional scarring from testimony, this protection would cease to have the certainty and categorical effect that Crawford holds it was designed to have.64

The court concluded that the pre-existing statutory definition of unavailability for hearsay purposes — which included the likelihood of emotional harm — “does not survive Crawford. These are the types of ‘vague standards’ that Crawford criticizes as ‘manipulable.’ . . . The Sixth Amendment is a ‘categorical constitutional guarantee[]’ requiring more stringent standards for determining when a witness is unavailable so that out of court testimony may be utilized.”65

V. Continuing Relevance Of Ohio v. Roberts And Hearsay Law

If a court finds that statements are not testimonial and therefore not subject to Crawford, the court must still analyze the admissibility of those statements under Ohio v. Roberts and the local hearsay rules. Crawford only overruled Roberts as applied to testimonial statements.66 Thus, until the United States Supreme Court says otherwise, nontestimonial statements are still subject to the Sixth Amendment rule contained in Roberts, i.e., they are inadmissible unless they fall within a “firmly rooted hearsay exception” or bear “particularized guarantees of trustworthiness.”67 Likewise, until the local legislature says otherwise, nontestimonial statements are also still subject to the requirements of the local hearsay rules.

VI. Forfeiture By Wrongdoing

Every silver lining has its cloud, and the ominous storm cloud hovering over Crawford is forfeiture. Now that prosecutors will be unable to rely on the easy-admission hearsay rules to avoid putting children on the stand at trial, they are bound to lean much more heavily on the rule of forfeiture by wrongdoing. This is the common-law rule that if the accused caused the declarant’s unavailability to testify, then the accused may no longer claim a constitutional or statutory right to confront the declarant.68 The Crawford majority noted that it still accepts the rule of forfeiture by wrongdoing as consistent with the Confrontation Clause.69 This rule places the burden on the prosecution to prove — usually by a preponderance of evidence — that the declarant is unavailable as a result of the accused’s wrongdoing.70

This rule was originally announced by the United States Supreme Court 125 years ago in Reynolds v. United States, a federal prosecution for bigamy.71 Defendant Reynolds apparently hid one of his wives from the deputy marshal when the marshal arrived to subpoena the wife to trial. The wife’s out-of-court statements were admitted against the defendant, and he was convicted. On appeal, the United States Supreme Court held that, given the defendant’s intentional procurement of his wife’s absence, he could not complain about his inability to confront her. Her out-of-court statements were admissible consistent with the Sixth Amendment.72

Since Reynolds, courts have expanded the forfeiture rule in two ways that may prove significant in child sexual-abuse cases.

First, some jurisdictions have now held that an accused may be deemed to have forfeited confrontation rights even if he or she did not commit the wrongdoing said to constitute forfeiture with the intent of preventing the witness from testifying.73 In other words, if Reynolds had hid his wife from the marshal not to prevent service of the subpoena, but because his wife owed the marshal money, in some jurisdictions he would still be held to have forfeited his right to confront his wife at trial, because he wrongfully caused her absence — regardless of his intent when he did it.

The rules of evidence in some jurisdictions might be interpreted to require an intent to silence on the part of the alleged wrongdoer, insofar as they permit the admission of hearsay statements “offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as witness.”74 But Professor Friedman (who advocates for a strong forfeiture rule) has argued that hearsay statutes such as these are irrelevant in the constitutional analysis: “Whether the confrontation right is forfeited is a matter of federal constitutional law, and there is no reason why the constitutional standard of forfeiture must conform to the Federal Rules’ expression of the doctrine.”75 At least one court has expressed agreement with Professor Friedman on this point.76

The second expansion of Reynolds is a growing acceptance for the idea that an accused may forfeit the right to confront a witness even when the act of wrongdoing said to constitute forfeiture — such as killing the witness — is the very same act for which the accused is currently on trial.77

These dual developments will now allow prosecutors in child sexual-abuse cases to argue that the very abuse with which the accused has been charged is the wrongdoing that may be said to constitute forfeiture — even though there is no indication that, for instance, the accused molested the complainant with the intent of preventing her future testimony. Courts should meet such arguments with great caution.

First, the same unavailability requirements discussed above should apply in the forfeiture context. In other words, the prosecution should be made to prove that the child-declarant is truly unavailable, and not simply that the child’s mother or therapist believes that testifying might traumatize the child.

Second, courts do not appear to have addressed yet the question of whether the accused’s wrongdoing must be the sole cause of the declarant’s unavailability, a primary cause, or even simply a contributing cause. If the child at issue is truly incapable of testifying because of some apparent psychological trauma, then the prosecution’s claim of forfeiture may necessitate an independent psychological evaluation of the child. Evidence that the child’s psychological state was caused by family or health stressors unrelated to the allegations against the accused should weigh against a finding that the accused, and not some other factor, caused the child’s unavailability.

Third, if the child made accusatory statements postdating the alleged wrongdoing, then that fact should weigh heavily against any finding that the accused’s wrongdoing caused the child’s silence, as such evidence demonstrates the child’s ability to bear witness notwithstanding the accused’s alleged acts.

Fourth, if the child is shown to be incompetent due to her age, then her unavailability cannot be blamed on the accused.

And finally, even if the accused is deemed to have forfeited the right to confront the child, if the child’s statements are unreliable, they should be excluded under the Fourteenth Amendment if not under the Sixth Amendment. The forfeiture doctrine recognizes that an accused who causes a declarant’s unavailability cannot complain about being deprived of the opportunity to confront that witness at trial. But the accused still has a Fourteenth Amendment due-process right to be tried on reliable evidence.78 This right is unaffected by the forfeiture of confrontation. In other words, the accused cannot demand to confront a declarant when the accused’s own wrongdoing made the declarant unconfrontable; but unless the accused’s own wrongdoing also made the declarant’s statements unreliable, then their unreliability should preclude their admission notwithstanding the accused’s wrongdoing. The accused does not lose all constitutional rights as a result of wrongdoing, but only those rights directly affected by the wrongdoing. As one court has expressed the point:

It may . . . be unjust to use the forfeiture doctrine to admit a hearsay statement that does not contain sufficient indicia of trustworthiness. A defendant may reasonably be deemed to have forfeited the right to challenge reliable and trustworthy hearsay if his intentional and wrongful conduct makes the declarant unavailable; it is not so clear that he forfeits his right to challenge all hearsay statements against him, no matter how unreliable.79

VIII. Conclusion

The long-term effect of Crawford on the admissibility of nontestifying children’s statements remains to be seen. But if courts are faithful to Crawford, they should find themselves excluding the majority of out-of-court statements that were previously considered admissible. Given “[t]he injustice [children’s] erroneous testimony can produce,”80 Crawford brings only good news for the accused.

Notes

1. 541 U.S. 36 (2004).

2. See Davis v. Washington, No. 05-5224 (certiorari granted Oct. 31, 2005; petitioner’s brief due Feb. 2, 2006); Hammon v. Indiana, No. 05-5705 (same). While it is always risky to predict outcomes where the Supreme Court is concerned, it seems safe to assume that no significant harm will come to Crawford as a result of the recent change in the Court’s makeup. The only two dissenters from the testimonial approach adopted in Crawford were then-Chief Justice Rehnquist and Justice O’Connor. 541 U.S. at 69-76 (concurring in the judgment but disapproving the overruling of Ohio v. Roberts).

3. 541 U.S. at 68.

4. 448 U.S. 56 (1980).

5. Id. at 66.

6. See United States v. McClesky, 228 F.3d 640, 643 (6th Cir. 2000) (noting that “[t]he law construing the Sixth Amendment right of confrontation and the evidentiary
law of hearsay run along essentially parallel lines”).

7. United States v. Solomon, 399 F.3d 1231, 1237 (10th Cir. 2005).

8. Id. at 1237-38.

9. Id. at 1238; see also Chapman v. California, 386 U.S. 18 (1967) (describing standard of appellate review of constitutional errors).

10. See, e.g., State v. Cannaday, 2005 WL 736583 (Ohio App. March 31, 2005) (holding that victim’s on-scene statements to police officers were not subject to Crawford because they were excited utterances).

11. Crawford, 541 U.S. at 61.

12. United States v. Cromer, 389 F.3d 662, 679 (6th Cir. 2004), reh. and reh. on banc den. (6th Cir. 2005).

13. Crawford, 541 U.S. at 51.

14. Id. at 68.

15. Id. at 51-52 (internal citations omitted).

16. In re Rolandis G., 817 N.E.2d 183, 189 (Ill. App. 2 Dist. 2004), appeal pending.

17. Crawford, 541 U.S. at 52.

18. Jeffrey L. Fisher, Crawford v. Washington: Reframing the Right to Confrontation,.http: //www.dwt.com/lawdir/publications/CrawfordOutline.pdf (last updated Oct. 31, 2005). Fisher was Michael Crawford’s lead counsel in the United States Supreme Court. He currently represents the petitioner before the Supreme Court in Davis, No. 05-5224.

19. Richard D. Friedman, The Confrontation Blog, http://confrontationright.blogspot.com (last updated Oct. 31, 2005). Professor Friedman’s view of which statements are testimonial is particularly persuasive insofar as his view of the Sixth Amendment is that adopted by the Crawford majority. See Crawford, 541 U.S. at 61. He currently represents the petitioner before the Supreme Court in Hammon, No. 05-5705.

20. 389 F.3d 662 (6th Cir. 2004).

21. Id. at 673.

22. Id. at 673-74, quoting Richard D. Friedman, Confrontation: The Search for Basic Principles, 86 Geo. L. J. 1011, 1042-43 (1998) (emphasis added).

23. Id. at 674, quoting Friedman, Confrontation, 86 Geo L. J. at 1043.

24. Richard D. Friedman, Statements by Victims to Acquaintances, http: //confrontationright.blogspot.com/2005/03/statements-by-victims-to-acquaintances.html
(March 9, 2005). The Tenth Circuit has recently relied on both Cromer and Friedman to conclude likewise that “a statement is testimonial if a reasonable person in the position of the declarant would objectively foresee that his statement might be used in the investigation or prosecution of a crime.” United States v. Summers, 414 F.3d 1287, 1302 & n.9 (10th Cir. 2005); see also Commonwealth v. Gonsalves, 833 N.E.2d 549, 552 (Mass. 2005) (“out-of-court statements that are not testimonial per se must be examined to determine if they are nonetheless testimonial in fact by evaluating whether a reasonable person in the declarant’s position would anticipate his statement being used against the accused in investigating and prosecuting a crime”). While the Third Circuit appears to have followed suit, it draws the line at identifying statements made during 911 calls as testimonial. See United States v. Hinton, 423 F.3d 355 (3d Cir. 2005). This limit on the definition of testimonial is inconsistent with Crawford, as will be discussed later in this article.

25. Maryland v. Craig, 497 U.S. 836, 868 (1990) (Scalia, J., dissenting) (citing multiple studies).

26. Crawford, 541 U.S. at 67.

27. See Snowden v. State, 867 A.2d 314 (Md. 2005).

28. Id. at 329.

29. See State v. Mack, 101 P.3d 349, 353 (Or. 2004) (argument that three-year-old child’s intent should be focus of testimonial inquiry “is difficult to square with the reasoning in Crawford”); Snowden, 867 A.2d at 329 & n.20 (“the formulations in Crawford outlining what is testimonial not only take into account the intentions of the declarant, but also look to the intentions of the person eliciting the statement”; thus, “i[n] determining the testimonial quality of a statement . . . it is the circumstances of the statement that is paramount, and not necessarily the nature of some inherent characteristic of the declarant”); In re T.T., 815 N.E.2d 789, 808 (Ill. App. 1 Dist. 2004) (fact that seven-year-old child “may not have fully appreciated the fact that she was bearing witness” was “not particularly significant”) (Frossard, P.J., concurring).

30. See People v. Sisavath, 13 Cal. Rptr. 3d 753, 758 (Cal. App. 5 Dist. 2004) (rejecting “objective four-year-old” perspective and adopting “objective observer” perspective), reh. den. (Cal. App. June 10, 2004), rev. den. (Cal. Sept. 15, 2004); People v. Vigil, 104 P.3d 258, 262-63 (Colo. App. 2004) (rejecting argument “that the statement could not be considered testimonial . . . because a seven-year-old child would not reasonably expect his statements to be used prosecutorially”; holding that proper perspective is that of “an objective person in the child’s position”), cert. granted (Colo. Dec. 20, 2004).

31. Richard D. Friedman, Grappling with the Meaning of “Testimonial” at 22, http: //www.personal.umich.edu/%7Erdfrdman/Grappling1.pdf (unpublished working draft posted online Feb. 16, 2005).

32. See Snowden, 867 A.2d at 329 (“[t]o allow the prosecution to utilize statements by a young child made in an environment and under circumstances in which the investigators clearly contemplated use of the statements at a later trial would create an exception that we are not prepared to recognize”); Friedman, Grappling, supra note 31 at 22 (proposing estoppel rule to prevent investigators from hiding their intent and then claiming that statements they elicit from children are not testimonial).
33. Friedman, Grappling, supra note 31 at 22.

34. Crawford, 541 U.S. at 56 n.7.

35. See, e.g., State v. Staten, 610 S.E.2d 823, 829-36 (S.C. App. 2005) (suggesting that testimonial statements must be both made to a government agent and expected to be used at trial; listing numerous post-Crawford cases); In re T.T., 815 N.E.2d at 800 (“Crawford indicates that government involvement in some fashion in the creation of a formal statement is necessary to render the statement testimonial in nature.”), appeal pending.

36. See In re E.H., 823 N.E.2d 1029, 1036 (Ill. App. 1 Dist. 2005) (child’s accusatory statements to grandmother testimonial; absence of government involvement “does not remove this case from the scrutiny of the confrontation clause and whether it has been violated”), appeal allowed, 833 N.E.2d 2 (Ill. May 25, 2005); State v. Harr, 821 N.E.2d 1058, 1067 (Ohio App. 2 Dist. 2004) (child’s accusatory statements to mother testimonial where given “after the child was confronted by her mother for disobeying . . . and only after [her mother] interrogated the child with leading questions”).

37. See Snowden, 846 A.2d at 47 (children’s statements to social worker testimonial where “[t]he children were interviewed for the expressed purpose of developing their testimony”), aff’d 867 A.2d 314, 326 (Md. 2005) (emphasizing “the prosecutorial purpose of the interviews”); State v. Courtney, 682 N.W.2d 185, 196 (Minn. App. 2004) (child’s statements to child-protection worker testimonial where interview was conducted in preparation of case against defendant), rev’d on grounds that admission harmless, 696 N.W.2d 73, 76 n.2 (Minn. 2005) (noting that testimonial question not at issue on review); Mack, 101 P.3d at 352 (three-year-old child’s statements to social worker testimonial where social worker “was serving as a proxy for the police”).

38. People v. Walker, 697 N.W.2d 159, 171-72 (Mich. App. 2005) (Cooper, J., dissenting) (complainant’s accusatory statements to neighbor testimonial when given “after securing her neighbor’s cooperation in contacting the police”), appeal granted, 697 N.W.2d 527 (Mich. 2005), appeal held in abeyance, ___ N.W.2d ___ (Mich. 2005).

39. See Fisher, Reframing the Right, supra note 18 at ¶¶ I(D)(11)-(12) (listing cases analyzing on-scene statements and 911 calls); Tom Lininger, Prosecuting Batterers after Crawford, 91 Va. L. Rev. 747, 778-79 (2005) (discussing lower courts’ treatment of excited utterances since Crawford). While many of these cases involve adults who claimed to be victims of domestic violence, the courts’ treatment of excited utterances bodes poorly for cases involving child-declarants as well.

40. Crawford, 541 U.S. at 58 n.8.

41. See Lininger, Prosecuting Batterers, supra note 39 at 778-79 (noting that treating excited utterances to police officers as testimonial is the only approach that “seems faithful to Crawford”; calling such statements nontestimonial because they are excited “evoke[s] the facile, formalistic analysis of the Roberts era”).

42. See, e.g., Walker, 697 N.W.2d at 163 (alleged victim’s statements “were spontaneous and could as justifiably be characterized as a plea for safety and protection as statements made for the investigation of a crime”).

43. See United States v. Arnold, 410 F.3d 895, 903 (6th Cir. 2005) (“Although one purpose of the 911 call may have been to secure assistance, it remains that Gordon could also reasonably expect the statements to be used in a future trial.”); Lopez v. State, 888 So.2d 693, 699-700 (Fla. App. 1 Dist. 2004) (given declarant’s certain understanding that on-scene identification “is a form of accusation that will be used against the suspect,” statement did not “lose its character as a testimonial statement merely because the declarant was excited at the time it was made”), reh. den. (Dec. 22, 2004); Walker, 697 N.W.2d at 169-72 (Cooper, J., dissenting) (enumerating flaws in majority’s conclusion that excited utterance was not testimonial); State v. Davis, 111 P.3d 844, 853 (Wash. 2005) (Sanders, J., dissenting) (explaining that “a reasonable person today who calls 911 in connection with a criminal act could anticipate that his or her statement would be used in investigating and prosecuting the crime”).

44. See Davis, No. 05-5224, and Hammon, No. 05-5705.

45. Crawford, 541 U.S. at 68.

46. See People v. Fry, 92 P.3d 970 (Colo. 2004) (given limited nature of preliminary hearings, such hearings offer insufficient prior opportunity for confrontation under Crawford); Lopez v. State, 888 So.2d 693 (Fla. App. 1 Dist. 2004) (depositions designed for discovery purposes are “not an opportunity to engage in an adversarial testing of the evidence against the defendant” and are insufficient prior opportunities for confrontation under Crawford), reh. den. (Dec. 22, 2004); but see Blanton v. State, 880 So.2d 798 (Fla. App. 5 Dist. 2004) (discovery deposition provided adequate opportunity for confrontation: “Whether and how that opportunity is used is within the control of the accused, and he should not be heard to complain about an opportunity squandered.”), rev. den. (Fla. Dec. 8, 2004).

47. See, e.g., Lininger, Prosecuting Batterers, supra note 39 at 784-97 (proposing that preliminary hearings and depositions be used to preserve the testimony of complainants in domestic-violence cases so that their statements may be admitted at trial consistent with Crawford if they later refuse to testify); Robert P. Mosteller, Crawford v. Washington: Encouraging and Ensuring the Confrontation of Witnesses, 39 U. Rich. L. Rev. 511, 520 (2004) (assuming that Crawford requirements may be met in domestic-violence cases with uncooperative complainants “by greater efforts to afford confrontation at early adversarial hearings, such as preliminary examinations and depositions”).

48. See White v. Illinois, 502 U.S. 346 (1992); United States v. Inadi, 475 U.S. 387 (1986).

49. Crawford, 541 U.S. at 54.

50. Barber v. Page, 390 U.S. 719, 722-25 (1969).

51. Richard D. Friedman, Confrontation and the Definition of Chutzpa, 31 Israel L. Rev. 506, 533 (1997).

52. Mosteller, Encouraging and Ensuring the Confrontation of Witnesses, supra note 47 at 519-20.

53. In re T.T., 815 N.E.2d at 802-03.

54. See Victor I. Vieth, Keeping the Balance True: Admitting Child Hearsay in the Wake of Crawford v. Washington, 16 Nat’l Ctr. for Prosecution of Child Abuse Update No.
12 (2004).

55. See, e.g., State v. Kuone, 757 P.2d 289, 293-97 (Kan. 1988).

56. Craig, 497 U.S. at 867 (Scalia, J., dissenting).

57. 497 U.S. 836 (1990).

58. Id. at 855-56.

59. Id. at 856 (emphasis added).

60. Friedman, Chutzpa, supra note 51 at 532.

61. Id.

62. Id. at 533.

63. 910 So.2d 901 (Fla. App. 4 Dist. 2005).

64. Id. at 907.

65. Id. at 907-08.

66. Crawford, 541 U.S. at 61 (declining to resolve continuing applicability of Roberts to nontestimonial statements).

67. See Horton v. Allen, 370 F.3d 75, 84 (1st Cir. 2004) (applying Roberts to determine whether admission of nontestimonial hearsay violated Sixth Amendment), cert.
den., ___ U.S. ___, 125 S.Ct. 971 (U.S. Jan. 18, 2005); Miller v. State, 98 P.3d 738, 744 (Okla. App. 2004) (finding that admission of nontestimonial hearsay violated Roberts); State v. Manuel, 697 N.W.2d 811, 826 (Wis. 2005) (accepting defendant’s argument “that Roberts ought to be retained for nontestimonial statements”).

68. See Reynolds v. United States, 98 U.S. 145, 158-59 (1879).

69. Crawford, 541 U.S. at 62.

70. See Motes v. United States, 178 U.S. 458, 470-74 (1900) (forfeiture finding inappropriate where witness’s absence was attributable to government’s negligence in
failing to procure witness).

71. 98 U.S. 145 (1879).

72. Id.

73. See, e.g., People v. Giles, 19 Cal. Rptr. 3d 843, 848 (Cal. App. 2 Dist. 2004) (holding that defendant’s wrongdoing will be said to constitute forfeiture “whether or not the defendant specifically intended to prevent the witness from testifying at the time he committed the act that rendered the witness unavailable”), rev. granted, 22 Cal. Rptr. 3d 548 (Cal. 2004); People v. Baca, 2004 WL 2750083, *12 n.6 (Cal. App. 4 Dist. Dec. 2, 2004) (“We are not convinced that the rule of forfeiture by wrongdoing properly includes an intent-to-silence element.”), rev. granted (Cal. March 16, 2005).

74. Fed. R. Evid. 804(b)(6).

75. Richard D. Friedman, A Strange Federal Opinion on Dying Declarations and Forfeiture,http: //confrontationright.blogspot.com/2005/03/strange-federal-opinion-on-dying.html (March 28, 2005).

76. See People v. Cooper, 2005 WL 1125701, *18 (Cal. App. 1 Dist. May 13, 2005) (observing that California Evidence Code requires intent to silence, but distinguishing statutory forfeiture from constitutional forfeiture: “The equitable rule of forfeiture by wrongdoing, however, operates as a forfeiture of rights under the confrontation clause”), rev. den. (Cal. Aug. 10, 2005).

77. See State v. Meeks, 88 P.3d 789, 793-94 (Kan. 2004). The Meeks court dismissed the bootstrapping concerns this approach raises, in part by reference to Professor Friedman, whose amicus brief in Crawford countered such concerns. Id. at 794. What the Meeks court neglected to mention was that Friedman has argued that bootstrapping concerns can and should be mitigated by the imposition of a higher burden on prosecutors urging forfeiture findings. Long before Crawford, Professor Friedman called the preponderance standard a “plausible” standard for forfeiture, but stated a preference for something higher. Friedman, Chutzpa, supra note 51 at 519-20 (explaining that “given the importance of the confrontation right, the court should not hold that the accused has forfeited it unless the court is persuaded to a rather high degree of probability that the accused has rendered the declarant unavailable”). Friedman reasserted his burden preference in the wake of Crawford’s preservation of the forfeiture rule, cautioning that the standard “probably should be higher” than the preponderance standard. Richard D. Friedman, Forfeiture and Dying Declarations, http: //confrontationright.blogspot.com/2004/12/forfeiture-and-dying-declarations.html (Dec. 14, 2004) (citing Chutzpa).

78. See Manson v. Braithwaite, 432 U.S. 98, 114 (1977) (holding that “reliability is the linchpin” in determining whether identification testimony may be admitted consistent with due process”).

79. People v. Giles, 19 Cal. Rptr. 3d 843, 850-51 (Cal. App. 2 Dist. 2004) (emphasis added), mod. on other grounds; rev. granted, 102 P.3d 930 (Cal. 2004); see also State v. Gettings, 769 P.2d 25, 29-30 (Kan. 1989) (finding that defendant forfeited right to confront witness whose death he procured, but considering separately whether witness’s statements should nonetheless be excluded on reliability grounds); David J. Tess, Losing the Right to Confront: Defining Waiver to Better Address a Defendant’s Actions and Their Effects on a Witness, 27 U. Mich. J. L. Reform 877, 917-18 (1994) (arguing that admitting unreliable evidence on forfeiture grounds “conflicts with the requirement that a defendant who waives the confrontation right receive the functional equivalent of due process”).

80. Craig, 497 U.S. at 868 (1990) (Scalia, J., dissenting). n


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