Illinois and Washington Courts Diverge on Children?s Statements to Relatives

State v. Walker (2005) and In re E.H. (2005)

Appellate courts in Illinois and Washington have both ruled this year on whether allegations of child sex abuse children made to close relatives were testimonial. Their decisions point in opposite directions.

Both courts were applying Crawford v. Washington, 541 U.S. 36 (2004), a U.S. Supreme Court decision re-interpreting the constitution’s Confrontation Clause. Under Crawford, if out-of-court statements are testimonial, they can generally be admitted at a criminal trial only if the speaker testifies at the trial. Crawford did not provide a comprehensive definition of “testimonial,” but it did list some examples of both testimonial and non-testimonial statements.

In State v. Walker, 129 Wn. App. 258 (2005), 11-year-old C.M. had just come home from a weekend at the house of Richard Garrison, her grandfather. Her mother, Bobbi, sensed something was wrong and asked if something had happened. C.M. answered, “Yes.” Bobbi asked, “Was it my dad?” The girl again answered, “Yes.” Bobbi said, “Did he try to touch you?,” and C.M. again answered, “Yes.” The mother did not then call the police because she thought the family could handle the problem.

After Garrison assaulted C.M. again, the police were called, and he was convicted of child molestation. C.M. did not testify about the molestation. Her answers to her mother’s questions were put in evidence instead.

The Washington Court of Appeals began its analysis by comparing C.M.’s answers with some of the examples of testimonial statements given in Crawford:

C.M.’s statements were not made in court, nor were they contained in formalized testimonial materials, nor were they made in response to police interrogations. To the contrary, C.M.’s statement was made in response to questioning by her concerned mother immediately after C.M. had returned from Garrison’s house.

Garrison argues that the statement was testimonial because Bobbi initiated the conversation and had asked C.M. questions that were structured to gather evidence to be used against Garrison. However, while it is true that Bobbi initiated the conversation, there is nothing in the record that suggests that Bobbi interrogated her daughter for the purposes of gathering information with which to prosecute Garrison. To the contrary, Bobbi testified at trial that upon learning of the assault she did not contact the authorities because she thought the family could work it out.

Nor does the record indicate that C.M. asked her mother to take any action against Garrison. And nothing in the record supports the conclusion that C.M., an eleven-year-old, reasonably believed the statements to her mother could or would be available for use in a trial. The record indicates that the exchange between Bobbi and C.M. was that of a conversation between a concerned parent and an upset child, nothing more. Therefore, we find that C.M.’s statements to her mother were not testimonial and are admissible.

Even if the answers had been testimonial, the court said, it would have upheld the child molestation conviction because other evidence would by itself have caused the jury to convict.

The Appellate Court of Illinois considered children’s allegations of child abuse in In re E.H., 355 Ill.App.3d 564 (2005), a juvenile court prosecution.

K.R., age five, and B.R., age two, lived with their mother and grandmother. The grandmother overheard the girls talking in her bedroom and asked them what they were talking about. K.R. answered that they were talking about E.H., their 13-year-old cousin. K.R. said that E.H. made them suck her “puckets” (breasts) and lick her “front behind” and her “back behind.” The grandmother testified that B.R. said the same. The grandmother said the girls told her these things again the next day and that she did not prompt them with questions.

The appellate court held the children’s statements testimonial, even when made to their grandmother:

[T]he out-of-court statements of B.R., which accused E.H. of making her suck her “puckets” and “lick her front behind” and “back behind,” were statements concerning the fault and identity of E.H. and these “accusatory statements” invoke the protections of the confrontation clause. We believe it is the nature of the testimony rather than the official or unofficial nature of the person testifying that determines the applicability of Crawford and the confrontation clause.

Since B.R. had not testified at trial, but her statements to her grandmother had been admitted in evidence, the court ordered a new trial.

The Illinois Supreme Court has agreed to hear an appeal of the E.H. decision.