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Article Excerpt
INTRODUCTION
I. THE U.S. SUPREME COURT SHIFTED FROM FOCUSING ON RELIABILITY TO FOCUSING ON TESTIMONIAL HEARSAY A. In Ohio v. Roberts, the Court Created Its Two Prongs of Unavailability and Reliability B. In Bourjaily v. United States and White v. Illinois, the Court Only Required that Trial Courts Admit Coconspirator Statements and Spontaneous Declarations Under Firmly Rooted Hearsay Exceptions C. In Crawford v. Washington and Davis v. Washington, the Court Shifted Its Focus from Reliability to Testimonial Hearsay II. STATE AND FEDERAL COURTS HAVE APPLIED CRAWFORD AND DAVIS TO CHILD DECLARANTS BY FOCUSING ON THE QUESTIONER'S PURPOSE A. Before Davis, a Majority of State and Federal Courts Focused on the Declarant's Perspective B. After Davis, Courts Have Viewed the Questioner's Perspective as Dispositive Under the Primary-Purpose Test C. State Courts' Reasons for Ignoring the Declarant's Perspective Are Inconsistent with Bourjaily III. COURTS SHOULD ADOPT A REASONABLE-CHILD-DECLARANT APPROACH, CONSIDERING THE CHILD'S AGE, INTELLIGENCE, AND EXPERIENCE A. Four Reasons in Favor of a Reasonable-Child-Declarant Test 1. A child declarant is the cognitive inverse of both a co-conspirator making a statement in the furtherance of a crime and an unsuspecting caller 2. A child who cannot understand she is making an accusation or making statements relevant to a criminal investigation is not a "witness against" the accused 3. Ignorant children should not shoulder the adult-like responsibility of confronting a defendant unless their statement is testimonial 4. An objective approach to child declarants is more reliable than a purely subjective approach B. Courts Should Consider a Child's Age, Intelligence, and Experience 1. The child's age 2. The child's intelligence 3. The child's experience C. Courts Should Presume a Child Has Testimonial Capacity Unless a Prosecutor Shows Otherwise by a Preponderance of the Evidence IV. REBUTTING COUNTER ARGUMENTS TO A REASONABLE-CHILD-DECLARANT APPROACH A. A Reasonable-Child-Declarant Approach Is Not Contrary to the Davis Primary-Purpose Test B. A Reasonable-Child-Declarant Approach Is Objective C. The Confrontation Clause No Longer Depends on How Reliable the Hearsay Exception May Be D. A Reasonable-Child Approach Better Curbs Government Abuse than the Primary-Purpose Test E. Statements in Response to Police Questioning Are Not Per Se Testimonial F. The Court's Condemnation of White and Reference to Brasier Did Not Reject a Reasonable-Child Approach V. RECENT STATE CASES DEMONSTRATE THE NEED FOR A REASONABLE-CHILD-DECLARANT APPROACH A. Sexual Abuse--State v. Brigman B. Murder--State v. Siler CONCLUSION
INTRODUCTION
Three-year-old Nathan Siler told Detective Larry Martin that he wanted to see his mother who, Nathan claimed, was "sleeping standing" in the garage. (l) Tragically, Nathan's mother was dead, hanging from a "yellow cord tied to the track of the overhead garage door." (2) Nathan told Martin that he had seen his father, Brian Siler, and mother fight in the garage the night before and that his father had placed a "yellow thing" around his mother's neck. (3) But Nathan apparently did not understand his mother was dead.
Because Nathan did not testify at Brian's murder trial and the trial court admitted Nathan's statements as evidence without Brian's counsel ever cross-examining Nathan, Brian claimed that the trial court had violated his Sixth Amendment right to confront the witnesses against him. (4) The Sixth Amendment of the U.S. Constitution states that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." (5) In Crawford v. Washington, the U.S. Supreme Court held that a "witness[] against" the accused was one "who bear[s] testimony." (6) According to the Court, the Confrontation Clause was primarily concerned with "testimonial hearsay." (7) Thus a witness is a person who makes a statement that is "testimonial" by nature. Based on this definition, the Court held that the Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." (8) Brian claimed that his son, Nathan, was such a witness.
In Davis v. Washington, (9) the Court further clarified the meaning of testimonial. The Court held that:
[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. (10)
Commentators have referred to this standard as the primary-purpose test.
Following the Davis primary-purpose test, the Ohio Supreme Court ruled that Nathan's age and limited understanding were irrelevant when deciding whether Nathan's statements to Martin were testimonial. (11) The court concluded that because Martin's primary purpose in questioning Nathan was to "establish past events possibly relevant to a criminal prosecution," (12) Nathan's statements were testimonial. In other words, Nathan was acting as a witness. Because Nathan did not testify at Brian Siler's trial, the Ohio Supreme Court held that the trial court violated Brian Siler's "right ... to be confronted with the witnesses against him." (13)
The Ohio Supreme Court's decision in State v. Siler frames two key issues: First, under the U.S. Supreme Court's interpretation of the Confrontation Clause in Crawford and Davis, can a court consider a declarant's perspective when determining whether an out-of-court statement to a law enforcement official is testimonial? Second, if the declarant is a child, can a court consider subjective factors such as a child's age, intelligence, and experience or only consider out-of-court statements from a purely objective witness's perspective?
A majority of state courts have interpreted Davis just as the Ohio Supreme Court has, holding that because a declarant's perspective is irrelevant under the primary-purpose test, it need not consider whether a child's age, intelligence, or experience should factor into its calculus. To these courts, the controlling question is whether the declarant makes statements during an ongoing emergency and whether the law enforcement official or law enforcement agent's primary purpose was "to establish or prove past events potentially relevant to later criminal prosecution." (14)
As courts have applied Davis to child declarants, they have not adequately considered a rationale and line of precedent noted in Crawford that more aptly applies to young children--Bourjaily v. United States. (15) The Crawford Court stated that certain statements were "by their nature ... not testimonial," such as "statements in furtherance of a conspiracy." (16) This conclusion seemed so obvious that the Court did not explain the rationale. Instead of a rationale, the Court simply cited Bourjaily as an example of a nontestimonial statement made in furtherance of a conspiracy. (17) Several federal courts of appeals have spelled out what seemed to strike the Court as obvious: a statement made in furtherance of a conspiracy is typically not testimonial because a coconspirator "would not anticipate his statements being used against the accused in investigating and prosecuting the crime." (18) Even after Davis, this rationale is still alive. The Davis Court stated, "[O]f course even when interrogation exists, it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate." (19) Similar to a coconspirator, children who do not understand that they are reporting wrongful conduct cannot understand that they are making statements that could have negative consequences for a suspect. Without that understanding, a child declarant is making a statement that, "by [its] nature," (20) is not testimonial.
In contrast to state courts' rigid application of Davis, the federal courts of appeals's interpretation of Bourjaily accounts for the core characteristic of a testimonial statement--a statement's accusatory nature. That same rationale should extend to child declarants. To determine whether a child declarant's statement is testimonial, courts should both evaluate an out-of-court statement from a declarant's perspective and account for the subjective factors of a child's age, intelligence, and experience. At the same time, courts should recognize that a child can make an accusation and can anticipate that her statements could be relevant to a criminal investigation. Therefore, a statement should be testimonial when a reasonable child of like age, intelligence, and experience would understand that her statement is an accusation that will adversely affect the perpetrator or that the information is relevant to an investigation. This approach to testimonial hearsay will better preserve the American ideal that when someone "accuses you, he must come up in front. He cannot hide behind the shadow." (21) The state courts' inflexible interpretation of Davis has diluted this ideal by placing the onus of confronting the accused on children who have not made an accusation.
This Note advocates a reasonable-child approach to child declarants under the Confrontation Clause. As further explained in Part III.A, a reasonable-child approach is superior to the primary-purpose test and a purely objective- or purely subjective-witness test because it better (1) comports with the Court's coconspirator jurisprudence; (2) reflects that the Confrontation Clause protects against admitting accusations and statements relevant to a criminal investigation; (3) accounts for the responsibility Americans expect of witnesses; and (4) avoids the unreliability of a purely subjective standard. The Note borrows the reasonable-child approach from tort law, including considerations of age, intelligence, and experience. (22) Accordingly, this approach to the Confrontation Clause uses an objective standard that considers subjective factors to account for a child's perspective. (23) And though the reasonable-child approach is an objective standard, this Note advocates a position different from Professor Richard Friedman, who has argued in favor of a purely objective standard that would exclude some very young children with limited understanding from the ambit of the Confrontation Clause. (24) However, this Note will draw upon some of Friedman's arguments in favor of viewing the Confrontation Clause from the declarant's perspective. In addition, the Note will offer an original argument based on Bourjaily and a detailed exposition of how a reasonable-child approach would apply to recent cases.
The discussion below will demonstrate why recognizing the child declarant's perspective is preferable. In Part I, the Note will describe how the Court has recently changed the Confrontation Clause doctrine to emphasize the Clause's procedural mandate and testimonial statements. In Part II, the Note will summarize how state and federal courts have applied Crawford and Davis to child declarants and why a majority of state courts have adopted an approach inconsistent with the Court's recasting of Bourjaily. In Part III, the Note will explain the reasonable-child-declarant approach in detail and provide four reasons why a test should both evaluate out-of-court statements from a declarant's perspective and account for the subjective factors of a child's age, intelligence, and experience. In Part IV, the Note will rebut counter arguments to a reasonable-child approach. And finally, in Part V, the Note will analyze two recent cases in which reasonable child declarants may not have understood they were reporting wrongful conduct.
I. THE U.S. SUPREME COURT SHIFTED FROM FOCUSING ON RELIABILITY TO FOCUSING ON TESTIMONIAL HEARSAY
The U.S. Supreme Court's Confrontation Clause jurisprudence has changed dramatically in the past five years. Under the Court's previous jurisprudence, the Court largely interpreted the Confrontation Clause to protect against admitting unreliable hearsay. Consequently, a Confrontation Clause challenge lived or died based on the exception to hearsay a trial court used to admit an out-of-court statement. In Crawford, the Court shifted from focusing on the substantive reliability of a hearsay statement to focusing on the main procedural safeguard in the text of the Clause--the defendant's right to confront witnesses against him. Instead of viewing the Confrontation Clause as protecting the same values as the rule against hearsay, the Court now focuses on which declarants function as a "witness against" the accused. Under Crawford, the most important question is who functions as a witness, thus overruling the Ohio v. Roberts two-prong test. The Roberts Court had held that a court could admit a hearsay statement without violating the Confrontation Clause if the prosecutor could demonstrate that the declarant was unavailable to testify and that the statement was reliable. (25)
Though the Roberts test is dead, several of the Court's cases under Roberts remain good law and are still relevant to how the Confrontation Clause applies to a child declarant. One cannot understand the arguments for or against a reasonable-child-declarant approach without understanding how the Court applied Roberts to statements made in the furtherance of a conspiracy and statements by child declarants. Below is a brief summary of the relevant cases under Roberts and the Court's current jurisprudence to preface the argument in favor of a reasonable-child-declarant approach.
A. In Ohio v. Roberts, the Court Created Its Two Prongs of Unavailability and Reliability
The Court first outlined its previous Confrontation Clause doctrine in Ohio v. Roberts. (26) In Roberts, the State of Ohio charged Herschel Roberts with forging a check in Bernard Isaacs's name and possession of the Isaacs' stolen credit cards. (27) At trial, Herschel claimed that Anita Roberts, the Isaacs's daughter, had given him permission to use her parents' checkbook and credit cards. (28) Under an Ohio hearsay exception for unavailable witnesses, the State offered a transcript of Anita's preliminary hearing testimony in which Anita refused to corroborate Herschel's story. (29) Crediting Anita's testimony, the jury convicted Herschel.
On appeal, Herschel argued that admitting Anita's testimony violated his confrontation rights because Anita was unavailable at trial. The U.S. Supreme Court disagreed. (30) In holding that the trial court properly admitted Anita's out-of-court statements, the Roberts Court established a two-prong test to determine if admission of hearsay evidence violated the Confrontation Clause. First, the Court required the prosecution to "either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant." (31) This Note will refer to this first prong as the Roberts unavailability prong. Second, when the declarant is unavailable, the statement "is admissible only if it bears adequate 'indicia of reliability."' (32) The Court explained that "[r]eliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception," or through "a showing of particularized guarantees of trustworthiness." (33) This Note will refer to this second prong as the Roberts reliability prong. The Court concluded that Anita's statements satisfied both the unavailability and reliability prongs because even the Isaacs did not know of their daughters' whereabouts and Herschel's attorney had "tested Anita's testimony with ... significant cross-examination." (34)
B. In Bourjaily v. United States and White v. Illinois, the Court Only Required that Trial Courts Admit Coconspirator Statements and Spontaneous Declarations Under Firmly Rooted Hearsay Exceptions
The Court's treatment of statements made in the furtherance of a conspiracy and statements from child declarants demonstrate how critical reliability became for Confrontation Clause challenges. The Court first applied Roberts by holding that the unavailability prong was inapplicable to statements made in the furtherance of a conspiracy, (35) and then in Bourjaily v. United States, (36) the Court held that statements made in the furtherance of a conspiracy satisfied the Roberts reliability prong because the hearsay exception for coconspirator statements was "firmly enough rooted." (37)
In Bourjaily, the district court admitted a coconspirator's tape-recorded statement against William John Bourjaily during his trial for conspiracy to distribute cocaine and possession of cocaine with intent to distribute. (38) In tape-recorded telephone conversations with a FBI informant, the coconspirator stated that he had a "gentleman friend" who had some questions about the informant's cocaine and then later arranged by telephone to purchase the cocaine and place it in his friend's car. (39) The coconspirator's "gentleman friend" turned out to be Bourjaily. On appeal, Bourjaily argued that the district court violated his confrontation rights by admitting the coconspirator's out-of-court statements because he had no opportunity to cross-examine the coconspirator. (40) The Court disagreed. In support of its holding that the coconspirator exception was firmly rooted, the Court noted that it had first approved of admitting coconspirator statements as res gestae over a century and a half ago and had repeatedly affirmed the hearsay exception ever since. (41) Because the Court had previously held that the Roberts unavailability prong was unnecessary and now held that the coconspirator exception was firmly rooted, the Court concluded that the requirements for admission under Federal Rule of Evidence 801(d)(2)(E) were identical to the requirements of the Confrontation Clause. (42)
Bourjaily also demonstrated that a coconspirator's statements need not actually further the conspiracy to survive a Confrontation Clause challenge. Because the Bourjaily coconspirator made statements to an FBI informant, neither the Confrontation Clause nor Rule 801(d)(2)(E) barred admission of mere attempts to further a conspiracy, even if the statement actually undermined the conspiracy. (43)
The Court's holding in Bourjaily foreshadowed how it would treat statements by child declarants. In White v. Illinois, (44) a four-year-old girl claimed that Randall White snuck into her bedroom at night, put his hand on her mouth, threatened to whip her if she screamed, and then touched her in the vaginal area. (45) A jury found White guilty of, inter alia, sexual assault. (46) On appeal, the Court addressed whether the Roberts unavailability prong applied to the girl's complaints of sexual abuse to five different people: the girl's baby sitter, her mother, a police officer, an emergency room nurse, and a doctor. The state trial court had admitted the little girl's first three statements under the spontaneous declaration hearsay exception because she made the statements minutes after Randall White's alleged sexual assault. (47) The trial court admitted the statements to the nurse and doctor under the medical treatment hearsay exception. (48)
Just as the Court had eliminated the unavailability prong for coconspirator's statements, (49) the Court held that a trial court need not find a declarant unavailable in White because of the substantial reliability of the child declarant's statements. The Court opined that because a declarant would offer a spontaneous statement without the opportunity to reflect, the statement may actually be more trustworthy than a statement offered later in the calm setting of a court. (50) Similarly, because a false statement to medical professionals may cause misdiagnosis or mistreatment, in-court testimony could not recapture the circumstances that make the statement trustworthy. (51) Accordingly, the Court limited the Roberts unavailability prong to apply only to "challenged out-of-court statements [that] were made in the course of a prior judicial proceeding." (52)
As a prelude to Crawford, Justice Thomas wrote a concurrence discussing the original purpose of the Confrontation Clause. Joined by Justice Scalia, Justice Thomas opined that "[n]either the language of the Clause nor the historical evidence appears to support the notion that the Confrontation Clause was intended to constitutionalize the hearsay rule and its exceptions." (53) Justice Thomas would have limited the Confrontation Clause to cover "any witness who actually testifies at trial, ... [and] is implicated by extra-judicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions." (54) Even statements made to police officers would not automatically be subject to the confrontation right. (55) Justice Thomas noted that while statements to police officers "might be considered the functional equivalent of in-court testimony because [they] were made in contemplation of legal proceedings," analyzing whether the declarant contemplated legal proceedings would "entangle the courts in a multitude of difficulties." (56) Some of Justice Thomas's views found their way into the Crawford opinion, where the Court overruled Roberts and changed course.
C. In Crawford v. Washington and Davis v. Washington, the Court Shifted Its Focus from Reliability to Testimonial Hearsay
Fourteen years after Roberts, the Court departed from its emphasis on reliability. (57) "[The Confrontation Clause] commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." (58) To determine which declarants must be tested by cross-examination, the Crawford Court concentrated on whom exactly was a witness within the meaning of the Clause. The Court opined that a "witness" against the accused was one "who 'bear[s] testimony.'" (59) Therefore, the Clause was primarily concerned with "testimonial hearsay." (60)
The Court refrained from defining the term "testimonial statements," but it offered three possible formulations. (61) The Court explained that testimonial statements could be (1) "ex parte in-court testimony or its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially"; (2) "extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions"; or (3) "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." (62) Lower courts and commentators have referred to this third definition as the objective-witness test.
The Court did not place its imprimatur on any of these formulations because it concluded...
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