Latest from the U.S. Supreme Court

Kennedy v. Louisiana (2008) and Giles v. California (2008)

Two recent opinions of the United States Supreme Court contain passages that will interest readers of Child Abuse Defense.

In Kennedy v. Louisiana, 128 S.Ct. 2641, June 25, 2008 (NO. 07-343), the Court held it unconstitutional to punish child rape with the death penalty. Among the reasons the Court gave was the heightened risk of erroneous conviction in child sex abuse cases. It gave its imprimatur to scientific literature on this problem, in language that lawyers can cite in their briefing for lower courts:

There are … serious systemic concerns in prosecuting the crime of child rape that are relevant to the constitutionality of making it a capital offense. The problem of unreliable, induced, and even imagined child testimony means there is a “special risk of wrongful execution” in some child rape cases. [Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002)], at 321. See also Brief for National Association of Criminal Defense Lawyers et Amici Curiae 5–17. This undermines, at least to some degree, the meaningful contribution of the death penalty to legitimate goals of punishment. Studies conclude that children are highly susceptible to suggestive questioning techniques like repetition, guided imagery, and selective reinforcement. See Ceci & Friedman, The Suggestibility of Children: Scientific Research and Legal Implications, 86 Cornell L. Rev. 33, 47 (2000) (there is “strong evidence that children, especially young children, are suggestible to a significant degree—even on abuse-related questions”); Gross, Jacoby, Matheson, Montgomery, & Patil, Exonerations in the United States 1989 Through 2003, 95J. Crim. L. & C. 523, 539 (2005) (discussing allegations of abuse at the Little Rascals Day Care Center); see also Quas, Davis, Goodman, & Myers, Repeated Questions, Deception, and Children’s True and False Reports of Body Touch, 12 Child Maltreatment 60, 61–66 (2007) (finding that 4- to 7-year-olds “were able to maintain [a] lie about body touch fairly effectively when asked repeated, direct questions during a mock forensic interview”).

Similar criticisms pertain to other cases involving child witnesses; but child rape cases present heightened concerns because the central narrative and account of the crime often comes from the child herself. She and the accused are, in most instances, the only ones present when the crime was committed. See Pennsylvania v. Ritchie, 480 U. S. 39, 60 (1987) . Cf. Goodman, Testifying in Criminal Court, at 118. And the question in a capital case is not just the fact of the crime, including, say, proof of rape as distinct from abuse short of rape, but details bearing upon brutality in its commission. These matters are subject to fabrication or exaggeration, or both. See Ceci and Friedman, supra; Quas, supra. Although capital punishment does bring retribution, and the legislature here has chosen to use it for this end, its judgment must be weighed, in deciding the constitutional question, against the special risks of unreliable testimony with respect to this crime.

128 S.Ct. at 2663.

Giles v. California, 128 S.Ct. 2678 (2008), decided the same day as Kennedy, is the latest in the Court’s decisions elaborating on the Confrontation Clause doctrine it first announced in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In Giles the Court held that a criminal defendant forfeits his right to confront a witness against him at trial only when 1) he prevents the witness’s testifying at trial, and 2) that is the purpose of his act that had that consequence. Even murdering the witness, if the purpose is not to prevent testimony, does not forfeit the right to confront.

That holding may have little application to child abuse cases. One comment Justice Scalia made in writing the Court’s opinion, though, does concern many child abuse cases. Without analysis, he wrote that medical purpose hearsay, like statements to acquaintances, are outside the protection of the Confrontation Clause:

Statements to friends and neighbors about abuse and intimidation, and statements to physicians in the course of receiving treatment would be excluded, if at all, only by hearsay rules … .

This issue, as Prof. Richard Friedman observes at his blog, is “very much in dispute.” In child abuse cases, children often get medical examinations, and give statements to nurses and physicians, as part of police investigation. Some state courts have found the Confrontation Clause to apply in such circumstances, asChild Abuse Defense has reported.

We have surely not heard the last word on whether children’s statements to medical personnel may be admitted at trial without confrontation.