Age of Child No Longer Prevents “Testimonial” Statements to Police

State v. Beadle (2011)

The Washington Supreme Court has ruled a child’s age can no longer prevent the child’s statements to police from being “testimonial” under the Confrontation Clause. The ruling came in State v. Beadle, 2011 WL 5223072 (Dkt 84204-3, 11/3/11), a unanimous decision.

The supreme court also said the trial court should not have admitted evidence the child complainant had an emotional breakdown when called to testify. The court nonetheless affirmed the convictions in the case because it found the trial court’s errors harmless in light of the properly-admitted evidence.

Beadle was charged with molesting a four-year-old girl, B.A. When the child was called to testify at a pretrial hearing, she refused to enter the courtroom. Instead she ran to a corner, curled up, hid her face, and cried. She refused to come into the courtroom again later that day and then again the next day. The prosecutor obtained the court’s permission for her mother to be in the courtroom while B.A. testified, but she still would not enter.

Washington’s child hearsay statute, RCW 9A.44.120, allows a child’s out-of-court statements alleging child abuse to be admitted at trial, even when the child does not testify, if she is “unavailable” as a witness. The trial court found B.A. was unavailable to testify. In support of the finding, it noted she had been diagnosed with “sexual abuse of a child” and post-traumatic stress disorder. It found the evidence did not suggest she could testify even by closed-circuit television.

The trial court therefore admitted in evidence B.A.’s statements in an interview by a sheriff’s detective and a CPS worker, and her allegations to several family members and mental health workers.

The constitution’s Confrontation Clause requires the accused have an opportunity to confront in court those who give adverse testimony. This clause applies only to out-of-court statements that are “testimonial.”

The Washington Supreme Court noted it had once said whether a statement was “testimonial” turned on “whether a reasonable person in the declarant’s position would anticipate his or her statement being used against the accused in investigating and prosecuting the alleged crime.” This standard meant statements to law enforcement by very young children would virtually never be testimonial; such children don’t understand the criminal justice system well enough to see the role their statements to police could play.

In its decision here, though, the court said that standard could no longer be applied to statements to law enforcement. Intervening decisions by the U.S. Supreme Court had established that the “primary purpose” of police questioning had to be the basis for deciding whether statements to police were testimonial. Here, the sheriff’s detective had interviewed B.A. to investigate whether Beadle had committed a crime. The CPS worker had attended the interview merely to help the detective conduct it. The court concluded neither should have been permitted to testify to B.A.’s statements in the interview. Only B.A.’s statements to family and mental health workers should have been admitted in evidence.

The supreme court also said the evidence of B.A.’s emotional breakdown at the courthouse had improperly bolstered her allegations against Beadle. The jury had no need to know why she was unavailable to testify, the court implied: “[T]he unavailability of a witness is … for the court and has no bearing on a defendant’s culpability.” The court cited a very similar case in Florida; improper bolstering was found there, too.

The court also distinguished between finding a witness “unavailable” for applying the Confrontation Clause and finding a witness unavailable for applying the child hearsay statute. The former requires a good-faith effort by the prosecutor to present the witness. The latter does not; court rules instead allow any of six different circumstances to show the witness unavailable. The court concluded, though, that B.A. was unavailable under both standards.