In re N.C. (2014)
The Pennsylvania Supreme Court has affirmed the decision to vacate the sexual assault conviction of a juvenile after the child accuser was unresponsive to direct examination. The court found that the juvenile did not have an opportunity to cross-examine the child accuser because her unresponsiveness proved that any attempt to cross-examine would ultimately be futile.
In this case, the juvenile was charged with sexually assaulting a three-year-old girl. In a videotaped interview with a forensic investigator, the girl alleged that the juvenile had touched her inappropriately. The juvenile court found that the girl was competent to testify at trial. However, when the prosecutor examined the girl, she would either shake her head or remain unresponsive. After two recesses, the court permitted the girl to sit with her father, and later her grandmother, despite the defense’s objection that their presence would affect the girl’s testimony.
Nonetheless, the girl eventually curled into the fetal position, refusing to acknowledge the prosecutor and the judge. After the prosecutor said he was not “going to get anywhere,” the juvenile court acknowledged that the girl was unlikely to participate further and suggested that she should be removed from the witness stand. The defense counsel declined to cross-examine.
The juvenile court later admitted the videotaped interview over the objections of the defense counsel that it violated the defendant’s confrontation rights. The juvenile court later found the juvenile to be delinquent. However, on appeal, the Pennsylvania Superior Court vacated, holding that the admission of the videotaped interview was erroneous because it violated the juvenile’s right to confrontation. The State then appealed.
Generally, the Sixth Amendment right to confrontation allows admission of hearsay statements where the witness is unavailable but the defense had a prior opportunity to cross-examination or where the witness testifies at trial.
In Washington state, the defense must have opportunity for full and effective cross-examination. This is available only when the State directly examines the witness about the incident giving rise to the charges. This is required by statute, Revised Code of Washington Section 9A.44.120, and court decisions such asState of Washington v. Rohrich, 132 Wn.2d 472, 939 P.2d 697 (1997).
In the N.C. case, the Pennsylvania Supreme Court held here that the videotaped interview was inadmissible because the girl was not available for cross-examination. Although she did take the stand, she “was unable to provide direct examination testimony regarding any contact [the juvenile] might have had with her.” The appellate court also found significant the juvenile court’s statements that “she’s not going to testify” and that she be dismissed from the stand. The court reasoned that defense’s declining to cross-examine was not a strategic choice because it was clear that any attempt to cross-examine would be futile. The court held that the juvenile’s Sixth Amendment rights had been violated, and affirmed the decision of the Superior Court to vacate.