The Right to Face Your Accuser: Child Abuse and the Sixth Amendment
Articles,  Blog

The Right to Face Your Accuser: Child Abuse and the Sixth Amendment


OK. Good afternoon, and welcome. I’m Ross Cheit, a professor
in political science, and now I’m at the
Watson Institute. And I’m delighted to welcome
you to Constitution Day. This day is in the nomenclature
of public policy and unfunded mandate, if you know the
history of Constitution Day. It came in, I think, 2004. Senator Byrd added an amendment
to the omnibus funding bill that said all institutions
that get federal money have to do an event on
Constitution Day that’s an educational event. So here we are. But fortunately,
we do have funding. It’s not from the
federal government, it’s from the political
theory project. So we’re much better funded than
we might have otherwise been. And I want to thank Professor
Tomasi for giving me the chance to invite today’s speakers,
and to suggest this topic. And I want to thank
Mary INAUDIBLE: for all her hard work
in organizing the event. As you know, our forum today
is on the special challenges of the confrontation clause as
they arise in cases involving children and child abuse. And we have two really
fabulous law professors here. I am so delighted that
they’re both here. Our format is going to be
that I’ve asked each speaker to talk 15 or 20
minutes, and then I’ve also asked them to both
do maybe a five minute response that might sharpen
the areas of disagreement. These two are so
civil that I think they’re going to largely agree. But I know there are
things they disagree on, and I want to make sure
you know what they are. So our first speaker will be
Professor Richard Friedman from the University of
Michigan Law School. I think it’s fair to say
he is the premier scholar in this country on the
confrontation clause. And if you’re really interested
in the confrontation clause, he has a blog devoted to
the confrontation clause. And our second
speaker is Tom Lyon from USC Law School,
who I think is the premier legal scholar
in this country on children as witnesses. So they come at this from
different backgrounds, but they’re both
eminently qualified, and I’m really delighted
that they’re here. So please join me in
welcoming both speakers. And we’ll just let you start. Should I stand? Your choice. I’ll stand. You know what. I’m off to the side. I’m going to sit here. I might as well be
looking straight at you. So thank you very
much for coming. I want to thank Brown,
and the Janus Project, and everybody associated
with it for inviting me and for putting on this program. I organize Constitution
Day, the observance, at my own university,
so I ducked out of town for this year. It is ironic– Ross mentioned
the unfunded mandate– and many people think that the
requirement of Constitution Day is unconstitutional, and
that the idea of that is imposing a condition on
receipt of federal funds– you take on the obligation
to put on a program. Personally, I think it’s an
appropriate constitutional condition. In any event, I
think it’s really appropriate for a
great university to devote a little bit
of time in a program to commemorating the
anniversary of the United States Constitution, and to
contemplating some of the issues surrounding it. So today, we’re going to
talk about the confrontation clause and, in particular,
how it applies, or not, to young children. It’s a very old topic which has
been refreshed and dramatically altered in recent years,
and in recent months. So I’m going to start by
giving some background on the confrontation right
in general, in the history. So imagine you’re setting up
a system of criminal justice. You could try something
like medieval courts, with the ordeal. Something like, OK,
we’ll brand somebody, and we’ll brand the
defendant, and if the sore festers in three
days, then we’ll say that the person is guilty. The ordeals worked pretty well
because they yielded a result. The problem was that it
didn’t really have anything to do with the truth. So beginning in 1215,
the Catholic church said you’ve got to
do something else. And what the English did, as
many systems had done before, was rely on the testimony
of witnesses, and actually pretty much everybody,
since the ordeals relied on the testimony of
witnesses– people who observed what occurred and
then relate what happened. So if you do that,
you have to come up with rules for how witnesses
give their testimony. In continental Europe, they
would give their testimony behind closed doors
to some official who would take it down and
then present it to the trial. But the English took great
pride in doing it differently. They took pride in doing it
the way the ancient Hebrews had done, the way the Romans did it,
by having the witnesses testify face to face with the
accused in open court. And as time went by, it was also
subject to cross-examination by the accused or by a
lawyer, and always under oath. And you see for
hundreds of years, it’s a point of great
pride among the English that this is the way
we take testimony. Confrontationally. Face to face. It was a point of importance
to the American colonists. It was something that they
complained about at the time of the revolution. All the early
state constitutions put in a guarantee
of confrontation between witness and accuser. Sometimes they used
the term face to face, the idea that this is the
way witnesses testified. And then when a Bill of Rights
was adopted in the United States, it included the
right of the accused to be confronted with the
witnesses against him. Now, something
curious happened then, and it’s sort of a mystery,
but around the time of the confrontation, lawyers
started getting into the act more than they had before. And they said, it’s
not just witnesses that we want to
cross-examine, that we want to confront anybody who
said anything that’s going to be used against my client. And anybody who
said anything where going to ask the jury to say,
well, that person said it, and therefore it’s true. That’s what we call hearsay. So there became this great,
big, broad rule against hearsay. But it was so broad it
had to have exceptions, and it became more
whole than cheese. It’s a very big blob. And when we teach evidence,
we spend a lot of time on the rule against
hearsay, and it’s a mystery. And somehow, the confrontation
right got sort of swallowed in, and rather muffled. And part of what
happened was, it’s important to recognize that
the Bill of Rights itself was only a limitation on
the federal government. It did not limit the states. And so the confrontation
right didn’t really matter. Anything the
Supreme Court wanted to do with respect
to federal trial, it didn’t need to rely on
the confrontation clause. State courts could
do their own thing. But little by little,
the US Supreme Court started saying that individual
parts of the Bill of Rights are incorporated against the
states by the 14th Amendment. And in 1965, they said that
about the confrontation clause. So now, the confrontation
clause mattered. It meant that the
Supreme Court could say a state had violated
the confrontation right. Very important. But they didn’t
know what it meant. And finally, in 2004
there’s a decision called Crawford v.
Washington, which is a transformative
decision, which said what the confrontation
clause is about is testimony. A person can’t give
testimony out of court without confronting the witness. Crawford involved somebody who
made a statement in the police station house, and
then that statement was used against the defendant. And the court said,
that’s no good. OK. Crawford replaced an
older style system in which the court
had just looked to see whether the
statement was reliable, which is a very weak, iffy
kind of jurisprudence. Here they said, if it’s
a testimonial statement– big question, what does
testimonial mean– then it can’t be admitted. And Crawford’s been
very important. It’s been very important
for cases involving fresh accusations,
which courts have been very lenient about letting in. It’s been very
important with respect to lab reports, which
many courts were just letting in without lab
analyst testifying. There’s one big question
that the court had ducked until this last year. And that’s how does it apply
with respect to children. And before Crawford,
the Supreme Court had handled several
cases involving children. But for over a decade
after Crawford, the Supreme Court
stayed clear of it until the case of Ohio v. Clark,
decided just this last term. So Clark involved a
three-year-old child who came into preschool with
some welts, suggesting abuse. He was asked by the preschool
staff what happened. He said D did it. D was his mother’s boyfriend. D was ultimately convicted. And the statement by the
little boy, referred to as LT, was instrumental
in the conviction. He was really the only evidence,
well at least in principle evidence, pointing
to him– there is critical evidence
in the conviction. And LT himself did
not testify at trial. In fact, a trial judge
ruled that he was not competent to testify at trial. And so the defendant said,
I haven’t had a chance to be confronted
with this witness, and this witness is crucial. And actually, he won in
the Ohio Supreme Court. But ultimately, the
Supreme Court reversed. It was interesting that the
Supreme Court was actually unanimous in reversing,
although it was sharply divided as to the
rationale and the details. But remember, the
buzz word that I said is, is the statement
testimonial? And they said the statement
was not testimonial. The statement by
the three-year-old was not testimonial. And in large part, it was
because the three-year-old just did not have the capacity to
understand what was going on. The capacity to understand
that what he was saying was likely to be used
as proof at trial. Well, I think that’s
right, actually. I don’t think that
a child that young is capable of understanding the
significance of those words. And I think to be a
witness, within the meaning of the confrontation
right, somebody has to have an understanding
of, the word that’s often used, solemnity. The solemnity of the occasion. You have to have
an understanding that what I’m saying may
lead people to take action, and that action may cause
serious punishment to be visited on this other person. I don’t think a
very young child is capable of understanding that. Beyond that, there’s
another factor which a colleague of mine,
Sherman Clarke, has emphasized. I always noted– I’m not
sure what to do about it, but I think it may
have significance– that what Sherman emphasizes
is the moral component to it. Testifying is an ordeal. It should be an ordeal, because
testifying against an accused is weighty stuff. And the question is, when should
society impose upon a child the responsibility in
the ordeal of being a witness against an accused? And it’s not clear that it
should happen with respect to very young children. Sherman would say
he would take it up to age 14, which is interesting. So in any event, the
outcome of Ohio v. Clark is that at least very
young children– the court only decided the one case– but
at least very young children are not witnesses for the
purpose of the confrontation clause. That statement is
not testimonial. But what happens then? If the outcome of Ohio v. Clark
is that these statements are then simply admitted
against the accused, without the accused having
any rights whatsoever, I think that’s very unfortunate. And let me emphasize, I think
that in a case like this, when LT says D did it, I think
that’s significant evidence. It could well be accurate. It’s evidence that the
jury ought to hear. It would be really unfortunate
if that evidence weren’t usable. At the same time, I think
we have to recognize that it’s not certain evidence. Now, it may be that LT
doesn’t have a motive to lie, but who knows what
kind of prepping there was done beforehand,
who knows what the underlying circumstances were. And there’s a good
deal of evidence in that particular
case, by the way, suggesting that D was
not the perpetrator. It may well have been
the child’s mother. So we can’t take it where just
because the child said it, it’s got to be true. The defendant has some rights. But the idea of having
an attorney cross-examine the child, to me, doesn’t
make it an awful lot of sense. I think when you have a very
young child, that statement is not testimonial nature. The child lacks the
capacity to be a witness, and it doesn’t work very well to
think about our usual courtroom style of examination. Even if the child–
as the Supreme Court has allowed in some cases–
even if the child is sent into a different room. Even if the child is
only in contact with the accused by electronic means. I don’t think the
event that’s going on is really a testimonial event. But I do think the
defendant, the accused, ought to have some rights,
with respect to the child. I think the problem is that
we’re used to thinking, well, the child is a human and
we treat humans in a given way. And then what we
expect is that humans will come in and testify,
except in some cases we’ll allow their out of
court statements to come in. But the way that we
expect to challenge evidence coming from a human is
by cross examination in court. I don’t think it’s very good
with respect to children. I don’t think it’s appropriate. I don’t think it’s
constitutionally necessary. But I do think that
the defendant should have some rights, and
I think that we’ve got to think in terms of
a whole different model. I think we’ve got to think about
very young children the way we think about non-human
sources of evidence. So if, for instance,
the prosecution says this pistol yielded
evidence against the accused, the accused would have a
right to examine the pistol. But you can’t
cross-examine a pistol. You can’t cross-examine,
say, a bloodhound. OK? It’s not an attorney’s job. It’s, with a pistol, a
ballistics expert’s job. I think something comparable
should happen with children. I think the defendant
should have a right to examine the child through
a qualified forensic examiner, presumably a psychologist,
well-trained, and operating under a court approved protocol
to make sure that there’s no abuse of the child. But the accused ought to be
able to select an examiner who would be able to sit
down with the child in a comfortable room,
nobody else present– though people observing,
perhaps, by one way mirrors– and make an assessment. And that should be
under videotape. Now, as usually
happens, the child has been examined in many
places by a qualified forensic examiner, but not
one selected by the accused. This would be
another examination. But I think we’ve got to
remember that the defendant’s rights are at stake as well. The defendant can be sentenced
to a long-term imprisonment. I think Clark got 28
years, if I recall. And what the accused
says is, but I want to be able to assess
whether this source of evidence is actually really as reliable
as the prosecution is saying. So I think that
examiner ought to be able to examine the child. The videotape would
presumably be admissible evidence if either side
though it would be useful. And the examiner ought
to be able to give an opinion in court,
guiding the jury as to whether there are reasons
to disbelieve the child. So there’s more I want
to say but why don’t I quit there and leave it to Tom. All right. You know, I get edgy sitting. I think I’m going to
go ahead and stand if I can still see you guys. Move around a little bit more. Thanks so much to the organizers
and to the wonderful turnout that we have today. Are most of you guys undergrads? Yeah? And are you in a particular
class or just from all over? [INAUDIBLE] Yeah? What’s the class? [INAUDIBLE] Oh, OK. OK, great. So have you covered the
confrontation clause? [INAUDIBLE] OK. Great. Well, thank you for coming. He was going to ask you
if they are getting credit for attending? [AUDIENCE LAUGHS] Are you getting credit? So what I thought I’d do is talk
a little bit, just personally, about my history and how
I got into this issue, because when I
was a law student, my best friend was from
Brown, and a lot of people were semiotics majors. Do you still have
semiotics as a major? And all of them ended
up going to law school, which I won’t say
the reasons for that. But in case you’re
thinking about law school, I can kind of give you
an idea of my experiences and how I got into this area. I actually hated law school,
but I became really interested in children and
child development while I was still in school,
and I started to cross register and took psychology classes. And actually, my
third year paper– which was the closest we got to
a dissertation in law school, you don’t really
write a dissertation– was on how suggestible kids
are, and how we should not believe their reports. And that was where
I started out. But my first job
as an attorney– I moved out to Los
Angeles– I actually thought about corporate law,
and then ended up turning down a job in corporate law. I moved over and
did dependency law. And dependency law are
not criminal cases, but they’re civil cases where
the state removes children from their home because
of abuse or neglect. And in LA county, it’s the
largest dependency court system in the world, people
say, with over 30,000 children under the care of
the juvenile court. And so that’s how I
basically got my experience in child abuse and working
on child abuse cases. Now, at the same time that I was
a dependency attorney handling these typical cases of child
abuse, which would be usually a girl that was maybe eight
to 11, accusing a mother’s boyfriend of sexual abuse,
or maybe a slightly younger child accusing a father or
a mother of physical abuse, that was the typical
case I was handling. At the same time the
McMartin trial was going on. Now, you guys are
probably never even heard of the McMartin trial, and
that’s a good thing, I think, for many of us. But at the time, this was
the largest prosecution ever in the history of the LA County
District Attorney’s office, and I urge you to check
out Ross Cheit’s book, where he goes back and explores,
reading probably 100,000 pages of transcripts of that case. That was a case, which was
very unlike my cases, which was preschool children
accusing daycare operators of severe ritualistic,
often times bizarre, allegations of sexual abuse. So a very different experience
I had than the kinds of cases that the criminal
court was handling. Very different
experience than what appeared in the
media, and the kinds of cases that influenced a
generation of researchers looking into children
suggestibility. OK. So while that went
on, I was arguing about what should happen
in dependency court. And my experience taught me
that my law school paper, where I criticize children
as being unbelievable, had taken an unduly
narrow look at the issues. First of all, it was clear
that there are very few cases of preschool children. But because of McMartin,
and other cases like it, the vast majority of
research on suggestibility is on preschool children. And when there were
preschool cases, and cases where they would
come into our court, one typically could find
reasons to doubt the credibility of the allegations. So there would be a
parent who was extremely supportive of the allegation–
most of these cases came to us from family law. So it would be a mother
who might be accusing an ex-husband of abuse,
or an ex-husband accusing the mother’s boyfriend of abuse. And so one could
look at these cases, and without thinking
too deeply say, I think there might be some
suggestive influences at work here. The typical cases, however,
that I was handling were older children, and parents
who were not so supportive. And recently, in
work that I’ve done since becoming a professor,
we’ve quantified this. So we took a look
at 250 cases going through the dependency
court system, in children accusing
people of sex abuse, and we found that 25%
of the time, the child will recant the abuse
allegation at some point. We found that if the child was
under 10, if the mother wasn’t supportive, and if the
child was alleging abuse against a household
member, then over 50% would recant their
allegation at some point. And so I began to see that the
primary problem that we faced in dealing with
child abuse was not an issue of false allegations,
but was more an issue of false denials. Now more recently, I’ve looked
to see what actually goes on in a typical criminal case. Because I had seen
McMartin in the newspapers. I had actually gone up
and watched McMartin. But I thought, is
McMartin a typical case? And recently, we
did a study where we looked at five years of
prosecution of sex abuse cases of children under 14. Again, we found virtually
no preschool children. I think there were maybe
three or four kids who were as young as four or five. Most of them were totally
incapable of answering questions once they
took the stand. So they were found incompetent,
but they were found competent because they wouldn’t even
answer questions in court. And only 3% of the
cases were cases where the prosecutor didn’t
try to produce a child witness. Only 3% of the cases. So basically, none
of these cases looked like the preschool cases. And none of these cases
looked like the case in Clark, where the prosecutor
didn’t even produce the child. Now, even when the
parents were supportive, children’s reports were
often less convincing because they didn’t report
the abuse until long after it began. And since those cases, I’ve
read a large literature on the modus operandi
of perpetrators. What do sexual abuse
perpetrators do? Well, we know that they
identify vulnerable children who seek affection. They give them attention,
presents, special privileges. They start with
non-sexual touching and they build up to
more severe abuse. And once abuses has begun, they
use a combination of threats to keep children silent. If they’re a parent,
they can take advantage of the naturally
positive feelings of protectiveness that
children feel towards them. So it’s really very easy to
understand why children will delay reporting, and then
even once they do report, will frequently recant
their abuse allegations. Now, of course, Clark was a
case of physical abuse, not sex abuse. Although I should
tell you, when we argue about child
witnesses, most of the cases are sex abuse cases, second
most often are physical abuse, third most often are cases where
children see parents fighting or fathers, typically,
killing mothers. But in physical abuse, many
of the same dynamics operate. Physical abuse tends to be
born of excessive discipline and children are naturally
ashamed to acknowledge it because they feel
partially responsible. And by the same
token, sexually abused children feel
partially responsible because of the progressive
nature of sexual abuse. After working as a dependency
lawyer for several years, I went back to school in
developmental psychology, because it became clear to me
that developmental psychology had a lot to say about how we
ought to be questioning kids. And what I did in
graduate school is studied preschool children’s
emerging understanding of concepts such as
remembering and forgetting. So the arguments that
Professor Friedman makes with respect to what
children can understand at a very young age is something
that I’m very familiar with. Now, when I finished graduate
school in psychology, I got back into legal issues
because of a California appellate court case that
said that if a child was testimonially
incompetent– and this is a standard that
many states use, and that was used in
Clark– if the child didn’t seem to understand the
difference between truth and lies, then the
child’s hearsay should not be admissible. So it would be like in Clark. The child doesn’t
qualify to testify, and then the court
would go on to say that because the
child doesn’t qualify, we’re not going to let the
child out of court statements be admitted. Well, it seemed clear
to me at that time, and this was back in the 90s,
that developmental psychology could help in assessing whether
young children understand, and in determining whether a
child’s understanding of truth and lies really matter. Does it really
affect the likelihood that the child is going
to tell the truth? And what we showed–
and I’ve probably done way too many studies on
this, but I’ll just tell you about one study–
is that children’s apparent understanding is highly
dependent on the way in which the questions are asked. So for example, if
you ask a child what would happen if you
told a lie to the judge, they are more likely to say
nothing than if you ask them what would happen if
this boy told a lie, and you just show them
a picture of a boy. Now, the reason is not that
they think they’re invulnerable, which would be one
interpretation of the results. The reason is that very
young children, and this would be children who
are preschool age, will interpret hypothetical
questions as suggestions, and they simply
reject the premises. So what kids do is say, but I’m
not going to tell a lie, right? And so nothing will happen
to me if I lie, right? So they reject the
premise of a hypothetical. Now, ironically, they
think very seriously about the consequences
of lying, but because of that they appear incompetent
to courts who question them. And we also show
that children are more likely to promise
to tell the truth if they promise to tell the truth. And then this is
really interesting, they are more likely to tell
the truth that they promise to tell the truth, even if they
don’t appear to understand what the truth means, given
the tasks that we’ve been able to develop. And so what that suggests is,
even with very sensitive tasks, we don’t get at what
kids really understand. OK. So hopefully I’ve
given you a sense of the way that my
experience in the law has taught me what typical
abuse cases look like, and what my work in psychology
has taught me about the fact that we underestimate
children’s abilities. So what about Crawford? So Crawford was very
exciting for all us evidence professors,
who are typically ignored by the Supreme Court. And it was exciting for me,
but perhaps in a negative way. So when Crawford first came
out, it was clear to me that it would have
negative implications for any case in which
a victim is initially cooperative, but then
who refuses to testify. Right? And this is most apparent for
domestic violence victims, but also victims of child
abuse, because if someone calls the police and
tells the police, that is more likely to be
a testimonial statement. And if they never
show up at trial, they can’t be cross-examined. And if they can’t
be cross-examined, the testimonial hearsay
will be excluded. So you see how it hurts
domestic violence prosecutions, hurts child abuse prosecutions. Now, in Clark, I got involved
in a very early stage. And this was, I think,
quite lucky for me. I had been writing amicus
briefs and submitting them to the Supreme
Court, but they were in cases, as Professor
Friedman explained, that didn’t have
anything to do with kids, because they weren’t accepting
review of cases with kids. So we would say,
hey, think about how this case might apply to kids. And, of course, they would
totally ignore our arguments in their opinion. Now, in Clark, however, we were
involved at a very early stage. We were involved at the stage
where the case wasn’t even accepted by the Supreme Court. So the case was in the
Ohio Supreme Court. And the state of Ohio asked the
American Professional Society on the Abuse of Children
to weigh in on this case. And so we helped them
ask the court for review. And it’s incredibly rare. Maybe it’s less than 1% or 1/10
of 1% of petitions for cert that are accepted for review. That’s right. Yeah. So it was pretty
amazing to us when the court accepted the case. Now, when you’re asking the
Supreme Court to review a case, part of your job is to convince
them that the lower courts are divided. And it’s interesting, because
Ohio thought, no, we just got to convince them that
Ohio has made a mistake. And the lawyers I was working
with were very patient. Said, no, no. You have to actually get
them to think that the lower courts don’t know
what they’re doing, not that they’re just
wrong in the single case. So we made two arguments that
we thought divided lower courts. The first question
was whether statements made to mandatory
reporters are testimonial. OK? Now, this is what,
I think, I guess, started the putative topic
for our debate today. So let me say a little
bit more about this. So you know what mandated
reporting is, right? So teachers are mandated
to report child abuse. That’s the law. And on the one hand, you can say
that when you become a mandated reporter, you’re being
deputized by the police to do the work for them, right? And if that’s true– if you’re
being deputized by the police– then anything you
elicit from a child would be testimonial hearsay. And the court had
suggested in Davis– and I think the case that
you argued before the Supreme Court was Davis and Hammon–
so the court in Davis said that 911 operators
are, essentially, agents of the police. And the Ohio Supreme
Court had relied heavily on this notion– the
agency relationship– to argue that teachers
were like cops, basically. On the other hand, however,
being a mandated reporter doesn’t mean that you are
no longer doing your job. And your primary purpose is
what your job is– if you’re a teacher, if you’re a doctor. And many courts have held the
children statements to doctors were not testimonial, because
although they were mandated to report abuse, their, quote,
“first and paramount duty,” unquote, was to provide,
say, medical assistance. So courts were not
applying this rule to doctors eliciting statements
of abuse from children. And what the Supreme
Court ultimately had done, had spoken in terms of
whether the primary purpose of the interrogation
was to collect evidence in anticipation of prosecution. OK. Now, what we argued
in our brief, we said, OK, the lower
courts have generally recognized that this is not
the primary purpose of doctors. And I think part
of this had to do with the well-accepted
medical diagnosis exceptions. The courts said,
well, we can fit it into that hearsay exception. So we’ll say doctors are
not agents of the police. But what we argued is that
social workers and teachers, in this case, could
have a primary purpose of protecting, children rather
than assisting prosecution. And we elaborated on this
argument in the next stage. So I’ll come back to that. The second thing that we saw
some division among the lower courts had to do with
whether the age of the child matters in determining
the primary purpose. Now, here the difference
among the lower courts was very clear. Some said that it was
important to consider how old the child was. And as Professor
Friedman has said, he feels that that’s extremely
important in understanding how much the child understands
the purpose of the questioning. But some courts have
said it was irrelevant. So I’ll give you an
example of the kind of case that gets overturned
in this environment. In Siler– this is an
Ohio Supreme Court case– a murder conviction
was overturned in which a three-year-old had
reported seeing his father beat and then hang his
mother in the garage. In response to police
detectives’ questions the child stated his
mother was sleeping standing in the garage, was
the way he described it. He explained how Daddy, Mommy
fighting had scared him. And when asked if anyone
was hurting Mommy, he said, Daddy did. The child told the detective
that the yellow thing had held his mother
upright in the garage. And asked who put the
yellow thing on her, he responded, Daddy. He was describing
a yellow rope that had been tied around her neck
when his father hung her. And the court stated
that the age of the child was irrelevant in determining
if the statements were testimonial, because the child
was questioned by the police. And the police were clearly
anticipating prosecution. And therefore the child’s
statements were testimonial. Now, whether
children’s age matters depends on two different things. First of all, what
children think they are doing when they
respond to questions by different adults– what does
the child think is happening– and what adults think they
are doing when they question children at different ages. And I’m going to come
back to that, too. OK. So that was our petition. We said, we are
writing amicus brief. We’re supporting a
petition for review. Supreme Court takes review. And we’re like, oh, my gosh. This is amazing. We can actually influence the
court in terms of its views on kids. And as Richard mentioned,
Professor Friedman mentioned, the court that had
rejected review in every case involving children
up to this point. OK. Here’s what the
Supreme Court decided. First of all, the court said
this was an ongoing emergency. Now, this surprised me,
because the child was not in any imminent harm. The child was at school. He was safe and sound in
the care of the school. And the court in
Hammon– and this was the case that Professor
Friedman successfully argued– had said that if
a perpetrator is separated from a victim, even if
he’s in the same house and he keeps trying to get
into the room with the victim, then there’s no emergency. And Scalia in his
concurrence– and Scalia is the architect behind
this, that the judge who wrote Crawford and who’s
been the foremost proponent of keeping it alive–
explained that the purpose was to protect the victim
from future attacks and to make sure that they
didn’t deliver an abused child back into imminent harm. And so the court here, hence,
had a very important difference between children
and adults, right? Now, I thought it was wrong
when the court said in Davis– and the court said
this in Davis– that as soon as the domestic
violence perpetrator leaves, the woman is in no danger. No emergency. But what occurs
to me is that what I think the court was saying is
that because if the perpetrator comes back, she can call
the police again, right? That’s why we can
say the emergency is ended as soon as the perpetrator
has left the premises. But a child can’t do that. So it’s an emergency
as long as the child is in a situation
where the state may have to release that
child to the perpetrator unless they can get credible
evidence that allows them to protect the child. And this, I think, is a
very important point that will be useful in the future. Now, we spent a lot
of time in our brief arguing about how there
are two different systems for intervening in child
abuse and neglect cases– protective services and police–
and how mandated reporting was primarily aimed at protecting
children from future harm. The court pointedly said that it
didn’t matter what the teachers thought would happen when they
called, meaning that it didn’t matter that they thought
social services or the police would arrest the perpetrator. And Scalia went out
of his way to note that the same rule would
apply to police questioning. So in some ways, the
court was going farther than we thought they would. But the court did
say that it mattered whether the person
questioning the child was, quote, “principally charged
with uncovering and prosecuting criminal behavior.” Basically, if you’re a cop. And if you’re not a
cop, then the court considers that
highly significant. The second thing the court
emphasized– and then I’ll conclude– is that the
child’s purpose was not to produce evidence to be used
to prosecute the perpetrator. Now this sounds a lot like
Professor Friedman’s argument. But we differ greatly in this. He thinks that four-year-olds
can’t be witnesses. And they aren’t witnesses
because they’re not capable of accusing
or of understanding their accusations. What we said in
the brief, though, and what the court
quoted in its opinion, was that children
don’t understand. It’s not that they’re incapable. It’s that they don’t
know what will happen when they talk to
a social worker, or when they talk to a teacher,
or when they talk to a parent. Children do understand that
if they tell a policeman that someone has
done something bad, the policeman can
arrest that person. And for that reason, we argue
that in limited cases where the child is talking to a
uniformed police officer, the child probably does
recognize the consequences of his or her statements. Even the youngest children
have some understanding of the police. The court was very
clear in that it didn’t think it was an incapacity. But it felt it was a
lack of understanding. The court emphasized that the
teachers didn’t tell the child why they were asking the
child those questions, and that the child
didn’t indicate that he thought that the
police were going to be called. And we also argued,
and the court also accepted, although they
didn’t cite us on this point, that the reason why
children complain of abuse is not because they want
people prosecuted, right? They accuse people
of abuse who they love, who are close to
them, who have seduced them, in many ways, into loving them. Children disclose abuse
because they want it to stop. And if that’s their motivation,
then their statements should not be
considered testimonial. And we’ve cited lots of
research on this point. So let me just take
one more minute. What does this mean
for the future? What I think we should do is
encourage further development of what’s called the child
advocacy center model. In this model– and this is
what most states have adopted, I think it’s fair to say. I know it’s true in
Los Angeles County. And Ross can tell
you if it’s true in Providence–
children are referred for a videotape structured
interview immediately after their first disclosure. Specially-trained interviewers
conduct the interviews. And different
professionals can watch, but don’t participate
in the interview. And the interviewer
follows a protocol which tests alternative
possibilities for how to explain the child’s report. These should not be considered
testimonial, in my view. The child is not told that this
is evidence for prosecution. The child’s motive is
not for prosecution. This is formal. And the court has often
said that formality means it’s testimonial. But I think that
should be understood in terms of understanding the
perspective of the declarant, understanding the
perspective of the speaker. Formality connotes a
prosecutorial intent, because the person
who’s being questioned recognizes when they sign
an affidavit that it’s going to be used. But a child won’t
even understand that. The state is primarily
interested in protection. Most cases of abuse
are never prosecuted. And has a secondary interest
in supporting the child’s testimony, but not in replacing
the child’s testimony at trial. Videotaping means we
have a complete record. The framers had no idea that
videotaping could exist. So when they worried about
government producing witnesses behind closed doors, you’re
videotaping the interaction. You know what the questions are. You know what the answers are. The tape can be made
available to the defense, who can show it to their expert. And the child can be asked to
testify if the defense insists on it at trial. Now, this a very
different approach. Finally, as a practical
matter, prosecutors still will attempt to bring
a child to court because of juror expectations. And the defense can use
compulsory processes– you’ve learned about the
compulsory process clause– to bring children to court
when they insist on it. However, I think we should have
a strong rule of forfeiture. The rule of forfeiture says
that if the defendant reasonably anticipated that the child
would not be able to testify, and can show this through
the process of seduction that I’ve described
with sexual abuse, then the defense cannot
complain of unavailability. I think I probably said
too much at this point. So I have some thoughts about
how my proposal differs from Professor Friedman’s. But I guess we can save that
for our little back-and-forth. Well, yeah. We do we do disagree
on some things. But it’s interesting
how, I think, the Clark case has forced
us or pushed us together to some extent. So let me take up the Siler
case, which Tom mentioned. It is the very sad case
of the three-year-old who said something about the cord. I think would be bizarre
to say, OK, we’ve got to bring that child in to
be cross-examined in court. And if the evidence is clearly
extremely significant– now it could be that something
was wrong, that the child got something wrong. But I think the
Ohio Supreme Court got it wrong in saying that
was testimony, even though he was talking to a cop. If you make it a
15-year-old child it’s very, very different. Now, the police officer’s intent
in having that conversation is the same throughout, I think. And similarly, if we imagine
the exact same facts pretty much as in Clark, except
make it a 15-year-old, or make it an adult, who’s
talking to a school supervisor or to a social
worker or whatever, it looks very different. So what I’m saying is I think
that the fact that the police are trying to get evidence
doesn’t matter with respect to the confrontation right. I don’t think. What matters is the
perspective of the speaker. Is that person engaged
in an act of witnessing? Now, if that person understands
that the audience– if, say, the child, or the victim,
whatever– understands that the audience the person
to whom he or she is speaking is likely to use
that information in the prosecution
of a crime, that’s what makes the act witnessing. And so the child,
adolescent, adult, whatever, that person’s
understanding of the function performed by that other
person is crucial. But I don’t think that no
matter how much the cops are trying to get evidence
makes it testimonial. So I think the whole issue
of a mandated reporter– being a mandated reporter
doesn’t make it testimonial. But if an adult is
speaking to a social worker and describes a crime,
and everybody in the room understands that that social
worker is going to pass it on to the police, and if
that statement is then used in a prosecution,
then what we’ve done is created a system in
which you can testify by talking to a
social worker and you don’t have to come to court. And that, I think violates,
the confrontation right. So I don’t think there’s
anything in the Clark decision that says anything
to the contrary. I guess I didn’t
read Clark as saying that this was an emergency. But I haven’t looked at
the decision in a while. Maybe you have
particular language. 0 definitely were saying
that the schoolteachers had other purposes for
having the conversation. And that’s true, of course. But I think if the focus is
kept on the speaker, what does a person in the position
of the speaker understand, then we get to a much
clearer, better sense of what the right is. I don’t know. I know far less about the
psychological literature than Tom does. As Tom knows, I’ve been
working with Steve Ceci, who’s a very noted child development
scholar with whom Tom has often disagreed. And we put in a
friend of court brief ourselves in Clark
talking about this. And Steve’s view is
that very young children don’t have the understanding,
the depth of understanding, to understand the full
process of witnessing, that because it is a long
and complicated process of inference, that if I make
this statement to this person, then a whole row of
consequences is going to follow. With respect to the child
advocacy center model, I think that’s great
as far as it goes. Sure? Why not? But if I’m a criminal defendant,
I still say, wait a second. Don’t just give me the tape. I want to be able to examine
that witness– I’m sorry, that child. I don’t think it’s a witness. I have to be able
to ask questions myself to make my evaluation. Don’t tell me that
there are government agents or neutral
agents who are doing it, and that’s good enough. Justice Scalia said in
one of the decisions that the framers would
have been astonished to learn that our rights
had been given over to determination by
neutral government offices. And whether the child advocacy
center is a government agency or is a private agency that’s
funded by the government, or whatever the
source of funding is, there’s no doubt
that the prosecution is going to be a repeat player
that is always before it. If I were a defendant,
I would say, gee, I don’t think they’re neutral. And neutrality
isn’t good enough. So fine. Have that examination. But let me do something as
well under tightly-controlled circumstances. One other point on forfeiture,
which is an interesting one. And it’s been an interest
of both Tom and me. The basic idea of
forfeiture is that you can do something wrong,
and therefore give up the confrontation right. The clearest example is the
person who kills a witness. And the definition of
chutzpah is the quality demonstrated by the person
who kills both parents and then begs for
mercy as an orphan. So there is another
type of chutzpah, which is pretty close, which is
the person who does something wrong, such as
killing the witness, and then says but you
can’t use that person’s statement against me. I didn’t have a chance
to cross-examine. Wait a second. Why don’t you have a
chance to cross-examine? You killed them. You murdered that person. So that would be an example of
forfeiture of the confrontation right. And I’ve argued for a very
broad conception of forfeiture. And I thought I was the
broadest person out there in terms of the breadth of
forfeiture that I would see. And I’ve got no
trouble with seeing, even with respect
to children who are capable of being witnesses,
that if the defendant’s own conduct
intimidates the child and renders that child
unable to testify, that should constitute
a forfeiture. I think that before we
conclude forfeiture, I think that the
effort should be made to get the child to testify. I’m talk about older children
who are capable of testifying. Tom goes a little
bit further, I think. Just a little bit. Because I think that you
can only forfeit when you’ve created the
inability to testify. Tom would say that if,
as I understand it, even if the defendant takes
advantage of the inability to testify and picks that
person as a victim, that, to me, is going too far. That’s saying, well, you
committed the type of crime that was difficult to
prove, and therefore, we’re going to take away your rights. And I don’t think
that’s appropriate. But in reality I don’t think the
practical difference between us on that is very large. That’s all I have to
say for right now. Yes. So I guess the main
difference I see between us is it seems to me like you are
trying to wall off children because you recognize
that we need to treat this class of
victims differently. And implications are
worrisome if we start to understand victims better. And what I mean by that is
that as we start to understand the fact that
cross-examination doesn’t work, victims report crimes not
because they want prosecution but because they
want protection, police are as
invested in protection as they are in arresting
and prosecuting offenders, then we might have to
start to think differently as we move back out
to the adult victims, or as we move to, say,
sexual assault victims who tend to be– well,
actually, they usually tend to be teenagers– but
tend to be young adults, and that if we recognize these
problems that exist with kids, and then we transfer
them over to adults, we realize that the whole
structure by which you insist upon a cross-examination
right at trial starts to sound less and
less and less favorable, less and less beneficial. Certainly less
beneficial to truth. And so these are the kinds
of questions I would have. First of all, it’s that
both you and Professor Ceci talk a lot about how
cross-examination doesn’t work with kids. But you don’t confront the issue
of whether cross-examination works with adults. I don’t know of any evidence
that cross-examination is an effective way
by which we get truth. You say that it
doesn’t seem fair that the defendant doesn’t
have some rights to confront the non-testimonial child. But by that token, we
should allow the defendant to confront other
non-testimonial witnesses. And so one could
construct an argument. And this is an
argument that would be analogous to the argument
you make with respect to kids. You say, well, kids don’t
make testimonial statements. And that’s unfair, because
then, they don’t testify. But of course, there are lots
of non-testimonial statements where the person doesn’t
have to testify that have been accepted by the court. So if someone calls for
help, and when it’s really, truly a call for help,
and it’s before the police move in to arrest the
perpetrator, that call for help could be admitted at trial. And that person would
never have to testify. Well, someone could
say, well, how do we know that calls
for help are reliable? It’s based on this ancient
theory that has been totally discredited by psychologists
that when you’re super-excited after some traumatic event,
you cannot tell a lie. The theory is, it stills
the reflective ability to tell a lie. Well, that’s just absurd, right? So if I was a
defense attorney, I would say, look,
in any case where someone has a call for
help, they’re super-excited. Their perceptions are distorted. Their narration is distorted. And narration is the term that
we use in evidence for when someone speaks and
you’re not really sure whether what they’re saying
is what they mean to say. These are all reasons why this
person should be brought in and should be forced to testify. But then, the
defense can say, OK, but we understand that it’s
hard to evaluate people, because cross-examination
isn’t the most effective tool. So I should have
a right to subject all of these non-testimonial
witnesses to a polygraph test. I’m going to hire an expert. And the expert’s going to give
the person a polygraph test. And then, the expert’s
going come into court and tell us if the
person is lying or not. Now, that may seem absurd
to you, because you’d say, well, polygraphs are
notoriously terrible. But actually, the
evidence is quite good that polygraphs are
as good as jurors are in assessing testimonial truth. Jurors are terrible at telling
whether people are lying or not. That just seems absurd, right? But it doesn’t seem absurd when
we say, oh, these little kids, they’re different. They have no comprehension. They have no understanding. And so I think what
I worry about is that we treat kids as if they’re
totally different animals. In fact, you say this. You say they’re not even
really human, in a way. No. Wait a second. I’m sorry to interrupt. I’ve never, ever, ever
said that they’re not really human in a way. And that’s just a distortion. I’ve never suggested that. I happen to have three kids. And they’re all human people. Right. Well. I’m sorry. I don’t mean to be provocative. But that’s the argument. That’s just a distortion. I’ve never said they’re
not human in a way. Of course they’re human. But I said that we
shouldn’t treat them the way– I said that we
shouldn’t have one set of rules for all human witnesses. That’s different. I said that for all human makers
of statements, that shouldn’t be humans versus non-humans. That’s a very different
thing, that just saying, oh, you’re a human
person, and you made a statement
that’s being used, and, therefore, you’re
subject to the same system. That, I don’t
think, makes sense. Of course they’re human. I’ve never said
anything different. Yeah. Well, I’m thinking
of your argument that the child is akin to
the bloodhound who barks. Again. I’m sorry. No, I’m happy to
hear your thoughts. I said we should treat
the child the same way. Do I think a child
is a human being? Of course I think a
child is a human being. Do I think the child is a dog? No, I don’t think
a child is a dog. But the question is, how do we
treat the statement by a child? I don’t think that
treating by a child the way we treat a
statement by an adult is an appropriate
way of handling. Right, right. That’s a very different matter. I’m happy with that. So my point is that why
don’t we treat children as much like adults as
we’re capable of doing so, and recognize that the problem
is not with the child’s level or capacity, but
with our ability to meet the child at
their level of ability? So rather than shift from a
system where we bring witnesses into court and we
ask them questions designed to test whether
they’re telling the truth, why do we give that over
to experts– and actually, that’s something we
want to talk about, is who are these experts? What do they believe? What sort of things
are they going to say? Why are we letting
them tell the jury whether the witness
is telling the truth or not when we
don’t let witnesses tell the jury that
other witnesses are telling the truth? Why do we do that, rather than
say, OK, let’s accommodate? Because what the court
has tried to do– and I think it’s fair to say
you’ve resisted this– what the court has tried to do
is to say, in certain cases, we can allow children to testify
without the defendant present. In certain cases,
we can regulate the kind of cross-examination
that defense attorneys are allowed to ask. I think an interesting
model, although it’s very experimental, and it would
take some time to develop, is I could see
allowing the defense attorney to question the
child, but only allow it through an intermediary. And the argument would
be, you might say, people who speak Spanish are not
good witnesses, because we ask them all these questions,
and they keep looking at us, and they keep saying,
I don’t understand. No comprende. And someone says well, hey,
this person is speaking Spanish. We need to bring
in a translator. And the defense attorney will
say, oh, I got a translator. And you say, no, no, no. We should have a court-certified
translator who comes into court and tells us what
the questions are. Now, ironically, it turns
out that Spanish interpreters soften the questions that
defense attorneys ask and that creates a
little bit of a stir. But it’s basically
a model that, we’re going to keep the same system. We have a child who’s
basically, in many ways, as capable as an adult,
but only if we treat them in the right way, and we
allow the defense attorney to ask questions, but only
through an intermediary. And so my argument,
basically, is that I think it’s wrong to
wall off children in this way. And I think it’s particularly
wrong to wall them off and then turn them over to experts
who I don’t trust. And we can talk more about
why I don’t trust them. [INTERPOSING VOICES] I wanted rebuttals, which
you don’t normally have, to bring out disagreement. I think it worked. Too well. Oh, no no, no, I
think it worked. And if you’d like another
minute right now– Yeah, yeah, yeah, sure. OK, one thing is, your proposal
treats children differently because you have the
center and you’re willing to allow the
videotape to come in, and that would be evidence. And you say, well the defendant
can bring the child in, if they want to,
but the prosecution wouldn’t have to have to. Now, unless you’re saying
that we should replace the entire common
law trial, the way we’ve been doing it for 500
years, by having that system, with respect to
adults, you’re also going to treat
children differently. I don’t know, it’s
a valid point. There’s no proof that
cross-examination works, in this sense. Courts keep saying
it’s the greatest engine for the
determination of truth, and has that been
empirically tested very well? No, so far as I
know, it hasn’t been. But it’s something that
has been considered crucial to a sense of
justice for the idea that, you say that to me
face-to-face, has been crucial for millennia, actually. And I think sometimes
it does work, whether it’s got a
good percentage or not, sometimes it brings out, it
forces the witness to– it exposes the frailties
in the testimony. So, I think at times
it clearly does. I had trouble
following when you said “nontestimonial witnesses,”
because that, to me, is a contradiction in terms. Witnesses are those
who give testimony. And that’s the point of
the Confrontation Clause, it’s that those who testify
should do so in court. I do think that very young
children are different, with respect to
cross-examination. It’s not simply a matter
of the effectiveness, but the basic idea
of cross-examination is, very often, you said x. You said y. X and y can’t be both
true, so what’s going on? You can’t begin to get
that kind of traction with a very young child. So, I think it’s important
to hear from children. I think it’s really crucial. But yeah, we do have to
recognize the differences and we have to provide some
protection for the defendant. OK. I want to have plenty of–
I want to get questions. We’ll go to you first. Questions? Should we stand? Yes. Yeah, hi, thanks very much. I think this is
very interesting. So I guess I had two
connecting questions. The first is, it seems
like a lot of this problem turns on the worry that
children will be traumatized by seeing their abuser in
court or being questioned by the agent of the abuser. And that’s certainly plausible,
but it’s not obvious. So do we have some
research that tells us just how bad it
is, how damaging it is for a child in
those circumstances? And then two, if we could
kind of get past that, if that weren’t a worry, if we
could have some sort of decorum where we weren’t
harming the witness. Why couldn’t we just
have the child testify and then have some system
for telling the jury, look, judge’s
instructions or something. You’ve received the
testimony of a child, it differs from adult testimony
in these important ways, keep that in mind in
your deliberations. We’ll start [INAUDIBLE] here. Yeah, so there is research. And so, when you
ask children, what’s the scariest thing
or what’s the worst thing about going
to court, they say, having to see the defendant. And there’s some research
that courtroom testimony can be traumatic, but it depends. And it depends largely
on what the outcome is, which makes it tough. Cause you don’t know what
the outcome is going to be. But when an
acquittal occurs, you tend to see worse results
for children down the line, in terms of their mental health. But I actually don’t think
in terms of the trauma to the child. I think in terms
of that children are incapable of
testifying, in many cases, if they’re forced to
confront the accused. And if a child’s statements are
considered testimonial hearsay, or if the child’s
presence is required, then that will lead to acquittal
in a large percentage of cases. Partly as a matter of law,
but also partly, the jurors expect to see the victim
to come into court. So that’s where I see the
problem of forcing children to confront the
accused, that comes in. I thought I recognized
that there may be trauma. I think we can reduce the trauma
through– there’s now some work being done with support
dogs, where you can bring a dog in that the child
has gotten to know, and that lies at
the child’s feet and that keeps the
child calm, right? I think these intermediaries
can reduce the stressfulness of the cross-examination
and the kinds of questions that are being asked. The prosecutor can stand between
the child and the perpetrator so the child doesn’t have to
look– or at the defendant, I should say. The child doesn’t have
to look at the defendant. So I don’t see the traumatic
effects of the courtroom as being something that should
drive us away from allowing children to testify. Yeah, I’ll stop there. So I agree, in significant part. I mean, I think
the biggest problem is what I’d referred to
as the clamming up part. You say to the kid, OK, you’re
going to testify and then, ahh! The kid just can’t do it,
or won’t, or whatever. And then also, the way our
criminal justice system works, unfortunately, is very often,
by the time you get to trial, it’s so long ago. It’s very hard to ask the
kid, tell us what happened. And then when you get
to the extra layer of logical complexity. Now, a few hours ago, you told
Mr. Prosecutor such and such, and now I want to
ask you about it. It becomes very difficult. So that’s the unfortunate
thing, that even if you say, well the kid has an sense of
obligation to tell the truth. Whatever, some kids just aren’t
going to be able to do it. And yes, I understand
the research is that the scariest thing
is confronting the accused. There is some research, as I was
suggesting, that in some cases it can be cathartic. And once the kid gets through
it, it can be cathartic. There is research indicating
that after a period of months, there’s a recovery. Something I saw suggested
that after seven, nine months, the psychological difference
between those who had recovered and– those who’d testified
in front of the accused and those who hadn’t
was indistinguishable. That makes for an
unpleasant time. Most prosecutors will say that
with sufficient preparation, they think that they
can make it much easier for the child, to bring
the child into the courtroom, explain what’s happening. Now we’re talking about
children of sufficient age that they have
some understanding. And most prosecutors
would rather have the child tell the story
if the child’s able to do it, than rely on
secondhand evidence, if that’s all they’ve got. I’ll go back to what I said
about the testifying is an ordeal. It should be an
ordeal, but there’s sort of like an optimal
level of ordeal, I think. I mean, we don’t want
to be too, too great. That’s the difficulty. That sort of goes
back to my colleague Sherman Clarke’s
question about at what stage do we want to impose
that ordeal onto kids. Another question? John. Can you tell us,
for both of you, I’m interested to
hear what you think about the path of the law, with
respect to the Confrontation Clause, from Crawford to Clark. So with Crawford, we
have this, I gather, very strong affirmation of
our confrontation right. Do you see if Clark, and Clark
was 9-0, as I understand, the opinions were
divided on the reasons? Yeah. I’m interested to hear how
you read what the judge’s lineups were and the reasoning. But more generally, do you
think that the confrontation right was weakened with Clark? Do see that it’s not
a weakening, but just an application in another area? How do you see the Confrontation
Clause after Clark? Should I take it? Yeah. [INTERPOSING VOICES] Clark was a ver– I’m sorry,
Crawford was a very dramatic decision, as you suggest. Justice Scalia,
when asked which is his favorite of his
opinions– it was Scalia who wrote it– said, Crawford. And it was a remarkable
opinion, a remarkable decision in many ways. One key point about
it that was remarkable was that it got support
both from the left and the right of the court. The only justices
who didn’t join in it were Rehnquist and
O’Connor, who were sort of pragmatic conservatives
and not the left end of the court and
not the right end sort of principles, justices. Because Crawford made this
very dramatic assertion that if a statement
is testimonial, it can’t be admitted
against an accused to prove the truth
of what it asserted, assuming that the witness
doesn’t testify, at some point, subject to confrontation,
cross-examination. Very, very different
approach from anything that happened before, or,
at least in the recent past, when this court had
sort of said, well, if it looks reliable
to us, good enough. And I think it went so much
against the grain of what lawyers had gotten used to
over the last half century or so that the court
began to lose its nerve. And four justices have
been out to undercut it, well, for the last
seven years or so. And it’s interesting,
the four are– it’s not a left-right
split, again. I mean three of them
are from the right. I’m talking about of Alito,
Kennedy, Roberts, and Breyer. And yeah I think– Did you say why they– what
worries them about it so much? Well I think, again, it’s a
principles versus pragmatism type of thing. And I think they’re worried
that it’s just going to be harder to prove crimes. My own view is that if the
court really stuck to it, it’s very practical in every
setting, including lab tests, including fresh accusations. There’s some things that the
courts had gotten sloppy with, there’s no doubt. But I think those four
tend to be justices who are less willing to make the
thunderous pronouncements that say, Scalia and Thomas
are on the right, and even, perhaps
to some extent, Kagan, Sotomayor and Ginsburg. But they’ve looked
at some of the cases and said, oh my
goodness, you mean you’re going to make a
lab witness come in– lab analyst come in and testify? In every case where lab
results are produced? And no matter how
much we say, well you know what, usually
it doesn’t happen. Usually the defendant
doesn’t insist on that. When they do, there’s not a
whole parade of witnesses, it’s really very pragmatic. There are states that do this
and they haven’t collapsed. For this account, they
don’t seem to care. They just seem to be very
worried about the effect. So Alito is one of
those who has just been out to undercut Crawford
ever since he got into court, I think, really. So yeah, there’s
language in there that does tend to undercut it. I felt Scalia, and his
separate concurrence went a little bit overboard. Scalia has a way of
seeing a majority opinion that he doesn’t
like and he says, oh my god, the sky is falling. This is the end
of the world which tends to make it happen because
then the next case, they said, well see what Scalia
said about that. So yeah, I think it’s
a dramatic new way of thinking about things
that they’re just not entirely ready to accept. Which is unfortunate. Because it’s pretty clear,
straightforward and simple. If you make a statement
with the understanding that it’s likely to be
used in prosecution– that’s a rough definition–
that’s testimonial. You’ve got to come in and
testify before the accused. If you’re unavailable
but the accused had an opportunity to
cross-examine before, good enough. And if the accused engaged in
substantial wrongdoing that rendered the
witness unavailable, then the confrontation
right is forfeited. I’m not standing
on one leg, but I could have said all that
while standing on one leg. It’s pretty simple,
it’s very practical, and I wish they would do it. But you didn’t say how much. Do you really think Clark
undercuts that a lot? Hard to know. It’s a child case. We’ll have to see to what
extent the language is used beyond the context of children. Yeah. Yeah. Tom? Yeah I think it could have. It could– well, especially
because, as Richard mentions that so many people on the
court want to limit Crawford– so I think it could
have that effect, and there are a couple
ways in which this is true. One way I read Clark
is that it seems to be saying that the declarant
must have testimonial purpose or testimonial understanding. In other words, the person
who makes the statement must understand that
there’s anticipation of its use in prosecution. And then the fact
that a young child doesn’t have that understanding
means it’s not testimonial. And if the court is
moving in that direction, then it solves one
interesting puzzle. And that is, what if the state
deliberately and methodically sets up a person so that they’re
speaking to a police informant who records the conversation? And so the state
is clearly trying to create evidence
for prosecution but the person is
totally unwitting. And the court has
not– has hinted that that’s not testimony. It shouldn’t be. But they’ve never held it,
and every circuit court that’s looked at it has
said that’s not testimonial. But you realize what you get
into in that situation is where the state is clearly trying
to manufacture evidence but it’s not being treated as
a problem for the Confrontation Clause. So I think that’s
one interesting way that Clark will keep us
moving in that direction. So I guess, so you think
the declarant’s perspective is necessary? Oh, I’ve always said
that it’s entirely the declarant’s perspective and
the court has gone off-balance. And this is the case,
Michigan v. Bryant, which we haven’t
mentioned, where they said take into account. It’s a combination. I was a very uncertain
type of thing by the mirror of
both perspectives. I think it’s the declarant’s
perspective, taking into account the entire context. In fact, I’ll say I was
second chair at the argument of Crawford, which is a
very uncomfortable position to be, particularly
for a law professor, because it meant that I
was about as far from Jeff Fisher who argued the case
as I am from Tom right now, and I couldn’t say a word. And that’s really
difficult. And this is stuff I cared about a lot. And the question came
up, precisely that, how is this going to work with
statements to undercover police officers? And I think Jeff had some
trouble with the decision– with that question. But then Breyer
jumped in and he said, law professor’s brief– that
was what I had written– says, well they talk about
the reasonable expectation of use in prosecution isn’t
on the part of the declarant. Doesn’t that solve the problem? And yes it does. So yeah, I think that if you’ve
got an undercover officer who’s trying very hard to get
evidence from somebody, but that person has
no idea that he’s talking to an
undercover cop, that’s not testifying–
he’s not testifying. I think it’s entirely
the declarant’s, the declared speaker,
that perspective. Yeah. So, well that’s interesting. Cause then in the context
of children, that actually is quite controversial, because
what– as I described it– what the state does now, is
through child advocacy centers, they bring a child in. The child is
questioned by a person who doesn’t identify themself
as being with the police. The child doesn’t have
any understanding– doesn’t have a full
understanding of what the interview is about. The child is still motivated
by a desire to stop the abuse. Once the perpetrator
may be incapacitated or rehabilitated– and there’s
language in the Supreme Court case Bryant that suggests
that’s nontestimonial. And so the state can
produce a videotape totally without violating
Crawford by not giving the defendant any right
to cross-examine the child. See, I think that’s a
positive development, but I view it as
quite controversial. Because if you read
the lower court cases, they’re saying things
like, well if the police call the interviewer in,
then it’s testimonial. Or if the police are behind the
screen, then it’s testimonial. But if we agree that the
child’s perspective is all that matters, I think that’s
actually a big breakthrough for child abuse prosecution. I’ve argued that from
the very beginning, I think the court messed it
up in Michigan v. Bryant. Now, having said that, I
wonder what you;d say about the 15-year-old case where you
have a 15-year-old or an adult who speaks to a social worker
and the police prosecution is never mentioned. We can talk about
purposes, but I don’t think that’s the answer. I don’t think that
should be the standard. The Supreme Court has talked
about the primary purpose of the conversation,
which is, oh, come on, primary purpose– people
have multiple purposes. But if everybody in
the room understands that that social worker is
going to take the statement and report it to the police, how
is that person not testifying before the social worker? And if we have a system in
which this happens over and over again, and then on TV shows
you see social workers having these interviews, and then
the evidence gets admitted, everybody understands that. So then we’ve created
a system in which, instead of testifying in
court, it’s testifying in front of a social worker. That I think is unfortunate,
if that happens. So then it’s, where
do we draw the line? Because you’re saying a
15-year-old understands. A 15-year-old
understands when they talk to a teacher,
probably, that it’s going to go to the police. Yeah, yeah. I don’t think– I
don’t think LT did. Somewhere in between,
there’s a line. Yeah, it’s probably around
eight or nine by the way. That could be. Yeah. That covers a lot and– Yeah. –Can I say one other
thing about how Clark may have changed Crawford? Because I’m really interested in
hearing your thoughts, Richard. So the other thing I
worry about– well, I actually am excited about but
I worry about, for Crawford, is– I think what
Clark recognized is that when a victim
complains of a crime, the victim’s motivation,
even when they’re talking to the police, is not
in anticipation of prosecution. And one of the things
that came up in Davis and Hammon was, surely when
the woman calls 911 and says, will you send the police out? She wants the guy arrested and
she anticipates prosecution. And yet the research suggests
that a substantial percentage of women who call 911 don’t
want the man arrested, definitely don’t
want prosecution, they don’t anticipate that
the police are going to arrest and prosecute because their
experience is that they won’t. Even in states with
mandatory arrest statutes, the police don’t arrest
most of the time they go out in domestic violence calls. So when Clark starts to
recognize a little bit more about the dynamics
of child abuse, one circles back around in
domestic violence and says, hey maybe Davis
and Hammon was too quick to say that as soon
as the guy’s out of the home we no longer have an
emergency and this should be considered testimonial hearsay. And so, if I was a
domestic violence advocate, I’d be shouting
about how we ought to reformulate our thoughts
about domestic violence prosecution. In Hammon, which, as Thomas
says, it was my case. In Hammon, what happened was
the police came to the home. Somebody called 911, I
think it was the daughter. Police came to the home and came
in and kept the husband at bay while– one officer was with
the husband, while the other was sitting down with the
wife in the living room. And he asked what happened and
then she described an assault and then he gave her
an affidavit to sign. And it’s like, oh come
on, how does she not expect prosecution
at that point, or at least further legal
proceedings of some sort? And if this is used
over and over again, you’ve got to
understand that there’s a substantial probability
of that, in Davis, too. I think that she
wanted him picked up but she want restraint, she
wanted the legal system to get involved and so I think
that we could argue about the whole emergency– The
oddity there was the Supreme Court said there
was an emergency. But for goodness sakes,
if there’s an emergency, you don’t go and
try to find the guy. If there’s an emergency, go
to the house and protect her. But they said, we’re going
to go out and find him and then we’ll come
and talk to you. She wasn’t afraid that at that
moment he was coming back, so if there is
really an emergency, they would have done
something different. Yeah, so– I didn’t argue Davis. Davis– Jeff Fisher
lost Davis 9-0. I wanted Hammon, 8-1. The difference was lawyering. Yeah. [INAUDIBLE] Yes. I was struck, actually, by the
choice of this topic as being somewhat nonidealogical. Especially when I
look both at what the splits were on the
decision, and really the nature of the
arguments are not as conducive to the conception
of the Supreme Court as taken over by one
ideology or another. Although, I think
those of us who think Roberts can make the
thunderous proposals now and again, like the
penalty as a tax. Thunderous way. But I take your point. My question, though, is to Tom. Your concept of forfeiture,
my concern about that is that it essentially
suggests, as you did, kind of accidentally,
your slip of the tongue, that there’s a perpetrator. I accept that if a child’s
been traumatized, in essence, they’re someone who has
been a victim of something. Of course, the
processes to find out if they were of victim of
the type of criminal abuse that we’re out to
search so that– I just find that as an
irreconcilable standard, because it essentially
requires the we assume the guy was a perpetrator to
begin with in order to say that his choice
was to perpetrate somebody who couldn’t, well,
testify against him. Right. Right, so actually, Richard, you
have the best answer to this. It seems circular, that
you’re presupposing what the trial is ultimately
supposed to determine. But forfeiture is a
judgement that a judge makes outside the
presence of the jury as to the admissibility or
inadmissibility of evidence. And it’s often the case that
the judge will decide something that the jury is
also going to decide at the outcome of the trial. So for example, there
is a hearsay exception for statements made
by co-conspirators. Well, in order for
a hearsay statement to be made by a co-conspirator,
there has to be a conspiracy. So what happens if the defendant
is charged with conspiracy, and the prosecutor
offers a statement as a co-conspirator statement? The prosecutor has to prove,
outside of the presence of the jury, to the judge
that there was a conspiracy. And then the judge
lets the evidence in. So the judge has to decide
whether the defendant is guilty of the crime in order
to decide whether to allow the evidence to be
presented to the jury, and then the jury makes
the ultimate decision as to whether the
conspiracy is true or not. So this happens all the time. Similarly, in a forfeiture
case, a typical forfeiture case would be one in which
the defendant is charged with murder and the
prosecutor wishes to use the forfeiture
by wrongdoing exception to allow the statements
of the victim. Well, the jury is going to
decide whether the defendant killed the victim. The judge, in applying
the forfeiture by wrongdoing doctrine,
is going to have to decide if the defendant
killed the victim. So it’s often the
case that the judge, in making an admissability
determination, will decide the same issue
that the jury is making, but the judge does it
by a different standard. The judge does it outside
the presence of the jury, and the judge is making an
admissability decision, not the ultimate decision. And I hope I’ve said that
clear, I’m sure you can– Well, I mean, Tom is right that
I have the best answer– No, he said basically
what I’ve said– I tried over and over
again– [INTERPOSING VOICES] I mean basically,
the short of it is that there are two
separate determinations that have to be made for
different purposes. They happen to be made
by different people, if there’s a jury trial–
one by the judge, one by– The only thing I might
say a little bit differently, the judge doesn’t
have to determine is the defendant
guilty of the crime. The judge has to determine,
did the defendant do something the forfeits the right? But oftentimes that is–
[INTERPOSING VOICES] Often it turns out to
be the same question, but it’s the same question
asked of different people for different purposes. If I may, I just want to go back
to your point about ideology. It’s very interesting. Yes, I think it is
ideological here. I think, say, Scalia,
who’s been in the forefront of the whole development
of the confrontation, was. It’s a very ideological view of
preserving the Constitution as written, preserving
the rights, adhering to them, of having clear,
strong walls, if you will. It’s just not the
usual ideological split that we’re used, to where–
there’s a tendency to think, all questions can
be– you line up nine justices in one dimension. And a given case is
going to slice them somewhere along the nine. Well, there are many
different dimensions and that’s why you
get the kind of split that you have here
with Scalia and Kagan being very, very close
together on these issues. So I want to stop
on time, but I first want say that what I have
always really appreciated about the Political
Theory Project is that it has brought
to Brown events where people disagree in
a reasoned and civil way. And I think we’ve
have that today, and I appreciate that so much. And I want you to join me in
thanking both these professors. [APPLAUSE]

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