Crawford Decision Means Children Must Testify

Crawford v. Washington (2004)

by David S. Marshall

In Crawford v. Washington, 2004 WL 413301 (March 8, 2004), the United States Supreme Court has fundamentally reinterpreted the federal constitution’s Confrontation Clause. As a result, there will be far fewer child sex abuse prosecutions in which the complaining child does not testify at trial.

According to the Crawford decision, the Confrontation Clause excludes “testimonial” hearsay from trial unless the declarant testifies at trial, or the declarant is unavailable to do so and the accused had an opportunity to cross-examine the declarant at the time of the hearsay. This rule will henceforth govern admissibility of testimonial hearsay in all federal and state criminal trials.

Over the past 25 years, many persons have been convicted of child abuse in trials at which the children in question were unavailable to testify, often because they were deemed too young to do so. Those convictions rested instead on out-of-court statements the children made—statements frequently admitted at trial under special evidence rules adopted to facilitate child abuse prosecutions. These out-of-court statements, often coming during interviews by child abuse investigators, were made without any opportunity for cross-examination by the accused. Under the Crawford decision, prosecutors would have had to abandon many—perhaps most—of these cases.

Efforts to apply the Crawford decision retroactively to free the persons convicted in those trials seem certain. Prospects are good for those whose cases are still on direct appeal. For those whose direct appeals have concluded, courts may refuse to apply the decision.

“Testimonial” hearsay

Justice Scalia wrote the Crawford opinion, in which all members of the court except Chief Justice Rehnquist and Justice O’Connor joined.

The Court based its decision on a historical analysis of what the Framers likely intended when they included the Confrontation Clause in the Bill of Rights. The Court found they were primarily seeking to avoid trial by affidavit or ex parte examination, such as had condemned Sir Walter Raleigh to death for treason in 1603. From this the Court concluded that the Clause protects only against “testimonial” hearsay. “An off-hand, overheard remark might be unreliable evidence and thus a good candidate for exclusion under hearsay rules, but it bears little resemblance to the … abuses the Confrontation Clause targeted,” according to the Court’s opinion.

The Court decided to

leave for another day any effort to spell out a comprehensive definition of “testimonial.” Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.

In footnote 4, the Court spoke of “structured police questioning” as a form of “interrogation.” In footnote 7 it said,

Involvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse—a fact borne out time and again throughout a history with which the Framers were keenly familiar.

It thus seems that virtually any law enforcement interview of a child because of suspicion she or he has been abused will produce “testimonial” hearsay. The argument that investigative interviews by child protection workers produce testimonial hearsay is nearly as strong.

Courts will likely have more trouble deciding the hearsay nature of medical histories taken by doctors and nurses during their examinations of children. The more specialized the exam, and the closer the connection between medical examiners and law enforcement, the more likely such histories will be deemed testimonial.

Similar line-drawing challenges will concern statements children make to school counselors, psychologists, teachers, coaches, and ministers. A person’s status as a mandated reporter of child abuse may be found to carry enough flavor of government agent to tip the balance in a close case.

The opinion raises the possibility that even questioning by parents could sometimes be deemed to produce testimonial hearsay.

A quarter-century of confrontation doctrine discarded

The Court said that most of its prior Confrontation Clause cases had reached results consistent with the rule it was announcing, but it acknowledged that they had done so without using that rule. The one recent case in which it acknowledged that the result might well have been different under the new rule was White v. Illinois, 502 U.S. 346 (1992), where the admission of a child’s statements to a police investigator was upheld.

The Crawford opinion had nothing kind to say about the confrontation doctrine developed in the Court’s cases since 1980. Those cases said that the Confrontation Clause permitted the use of hearsay at trial if it fell within a “firmly rooted hearsay exception” or a judge determined that it bore “particularized guarantees of trustworthiness.” The Crawford opinion said,

Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.

In one of the opinion’s pithiest sentences, the Court said, “Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty.”

The Court observed that permitting judges to admit hearsay they found reliable had failed to protect against “even core confrontation violations.” Judges would identify various factors that related to reliability and then so apply them to the facts at hand that reliability was usually found. “Some courts [wound] up attaching the same significance to opposite facts,” the Court said. The Colorado Supreme Court, for example, found a statement more reliable in one case because it was made “immediately after” the events, yet found another statement, in another case, more reliable because two years had passed before it was made.

“By replacing categorical constitutional guarantees with open-ended balancing tests,” the Court said, “we do violence to their design. Vague standards are manipulable.” (This criticism could be applied– and perhaps now will be—to many other multiple factor tests in criminal procedure.)

Under the Crawford decision, the federal Confrontation Clause does not exclude any hearsay from a trial if the declarant testifies at the trial– even if at trial he or she contradicts the hearsay or professes no memory of the events recounted in the hearsay. Only evidence rules and state confrontation clauses will regulate the admission of hearsay when the declarant testifies at trial.

Over the past 25 years, many states have adopted special hearsay rules for children’s allegations of abuse. These rules have been tailored to the confrontation doctrine discarded by the Crawford decision. Among the issues now likely to be litigated is whether those rules retain any vitality, even in cases where the child who made the statement does testify at trial. If they do not, then there will be no procedure to admit child hearsay, whether or not the child testifies, until states adopt revised rules for the purpose.