The Right to Confront Witnesses

Criminal litigation involving child abuse, elderly abuse, and domestic violence allegations share several commonalities. One is that oftentimes, the only witnesses in these cases are the alleged victims and the professionals who interview and/or treat them after the alleged crime.

Secondly, these cases often involve witnesses who initially may actively pursue the charges and want to see the defendant punished, yet later may change their minds and recant the allegations either on their own or due to external pressures. The specific reasons behind recantation can be many, but some motivations include fear, pressure from another person to change his/her story, not wanting to see a family member or friend get in trouble, or because the allegations are false.

Finally, these cases share the fact that witness unavailability is a frequently encountered issue. Unavailability can be caused by several different reasons, including witness incompetency (more common in child and elderly cases), emotional unavailability (more common in child cases), death (more common in elderly cases), disappearance (more common in domestic cases), or reliance on marital privilege (in domestic cases). For these reasons, the issue of hearsay often plays a central role in the litigation of these cases and one that can dramatically alter the direction and outcome of a case.

Until recently, the controlling case as far as admissibility of hearsay in cases in which witnesses were unavailable was Ohio v. Roberts. In Roberts, the United States Supreme Court held that the right to confrontation did not bar the admission of an unavailable witness’ statement if the statement fell under a firmly established hearsay exception or if the statement was determined to be reliable and trustworthy. This latter condition gave the trial court great discretion in deciding whether to admit unchallenged hearsay. Because there were no standards to guide the trial courts in making determinations on the reliability and trustworthiness of statements, the rulings often were unpredictable and many were made without any sensible basis or authority. For instance, in one case, a statement was found to be trustworthy, in part, because the declarant was in police custody and charged with a crime at the time the statement was made, whereas another court found a statement reliable based, in part, upon the fact that the declarant was out of custody and not a suspect.

From the defense perspective, such unpredictability and lack of consistency made these cases difficult to defend and sometimes impossible to effectively litigate. Once the witness was determined to be unavailable and the hearsay was admitted, there was no opportunity to challenge it. In short, the Confrontation Clause was all but worthless in such situations.

Yet, with the recent United States Supreme Court decision in the case of Crawford v. Washington, the pendulum seems to have swung back to a position thought by many to be more in line with the original intent of the constitutional right to confrontation. In Crawford, the point of contention was the trial judge’s decision to admit a wife’s out-of-court statements in a trial against her husband. The husband was charged with assault and attempted murder for stabbing a man he believed had earlier tried to rape his wife. Following the incident, both the defendant and his wife gave statements to the police.

At trial, the defendant claimed self-defense. The wife, relying upon marital privilege, was unavailable to testify. The prosecution, believing that the wife’s statement refuted the self-defense claim, sought to have the wife’s police statement admitted through a hearsay exception, which was allowed under Washington state law. The defendant argued that the admission of the statement would violate his constitutional right to confrontation because he had no opportunity to cross-examine the wife or her statement. The trial court decided to admit the wife’s statement, not based on the hearsay exception proposed by the prosecution, but rather based on a determination that the statement was reliable, using Roberts as the basis for doing so. Although the Court of Appeals reversed the decision, citing reasons why the wife’s statement was unreliable, the Washington Supreme Court upheld the conviction and agreed with the trial court that the wife’s statement showed evidence of trustworthiness.

The United States Supreme Court disagreed, however, and reversed and remanded Crawford, holding that the admission of the wife’s statement at trial violated the defendant’s right to confrontation because the defense had no opportunity to cross-examine the wife or her statement. Justice Scalia, writing for the Supreme Court, held that “out-of-court statements by witnesses that are testimonial are barred, under the Confrontation Clause, unless witnesses are unavailable and defendants had prior opportunity to cross-examine witnesses, regardless of whether such statements are deemed reliable by court, abrogating Ohio v. Roberts.”

Although the implications of this ruling no doubt will have a far reaching and dramatic impact on a variety of cases throughout the country, none are more likely to be affected than child abuse, elderly abuse and domestic violence cases, given that witness unavailability and hearsay exceptions are often central issues in this type of litigation. Given the recency of this ruling, attorneys throughout the country have only begun to consider all the possible implications. However, some of the anticipated arguments and challenges are discussed below.

In child abuse cases, the issue of unavailability typically arises either because the child is deemed incompetent to testify (usually as a result of lack of knowledge or understanding due to age or intellect) or because the child is “emotionally unavailable” to testify due to the presence of the defendant in the courtroom. In response to some of the unique difficulties children have when they become involved in the legal system, many states such as Colorado established special hearsay exceptions, which allow children’s out-of-court statements into evidence upon a judicial determination that the statements are reliable and trustworthy.

Twenty states allow such exceptions regardless of whether the child witness is or is not available to testify; four states allow the exceptions only if the child is available to testify; and eight states allow the exceptions only if the child is unavailable to testify. After their establishment, these hearsay exceptions were challenged on constitutional grounds, but most of these challenges failed because the exceptions were drafted to comply with Roberts.

Yet, Roberts is no longer controlling and Crawford strongly implies that these more “modern” exceptions will not pass the test established by the Crawford decision. Clearly, some of the “firmly rooted hearsay exceptions” will withstand challenge, but the language used in the decision makes it clear that the Supreme Court felt that Roberts strayed too far from the original intent of the Confrontation Clause. With strong verbiage repeatedly making reference to Roberts’ heavy reliance upon a “mere” unconstrained judicial determination, calling it a “wholly foreign” method compared to the constitutionally prescribed method of confrontation,10 it is hard to imagine that the more modern hearsay exceptions, particularly those that rely upon a judicial determination as to the statement’s reliability and trustworthiness, would be accepted under Crawford.

Elder abuse litigation brings about its own unique difficulties. When unavailability becomes an issue in an elderly abuse case, it is either because the alleged victim is incompetent to testify (usually as a result of some sort of brain degeneration, such as dementia) or because the alleged victim died prior to trial, yet the government still wants to pursue prosecution. Death, of course, is self-explanatory; and unless there was an opportunity for cross-examination in some proceeding that preceded the death, then Crawford would be right on point and the hearsay should not be allowed (absent an argument for hearsay based on a firmly established exception, such as a dying declaration).

If the cause of the unavailability is incompetency resulting from brain degeneration, there is little likelihood that this would change over the course of the litigation and should therefore have the same effect as described above. If there was no opportunity for cross-examination, the hearsay should not be allowed absent the existence of a firmly rooted exception. In either of these situations, the state may have, and may try, to admit statements given to the police by the alleged victim some time following the alleged crime. However, based on the way in which Crawford describes police “interrogations,” clearly establishing them as testimonial, such statements should not be allowed in.

In domestic violence cases, witness unavailability often arises as an issue for reasons apart from those previously discussed. For example, it is common for individuals who allege domestic violence to later not want to participate in the prosecution either out of fear or because the couple has reunited, or both. In some cases, alleged victims so much want to avoid giving testimony that they “disappear” and therefore are unavailable to testify at trial. In other cases involving marital partners, the spouse may claim marital privilege (if this privilege exists in their jurisdiction). In such cases, the state may attempt to have hearsay statements admitted through the police officers involved in the case (in fact, this could happen in all the types of cases discussed herein). This type of hearsay usually takes two forms: a spontaneous declaration made upon the officer’s arrival at the scene and/or a statement that is later taken by the police after the alleged victim has had more time to reflect.

In this latter scenario, where there arguably is time for reflection before the sworn statement is given, the hearsay should not be admissible under Crawford and defense attempts to exclude such statements should be successful. In the first scenario, there is a greater chance that the hearsay will be admitted under the argument that spontaneous utterances fall under the firmly rooted hearsay exceptions. However, Crawford seems to open the door for argument as to exactly what constitutes spontaneous utterances, given that Crawford, when referring to White v. Illinois, implies a strict application of this exception. Referencing a 1694 case, Thompson v. Travanion, the Crawford decision noted, “… to the extent the hearsay exception for spontaneous declarations existed at all, it required that the statements be made ‘immediately upon the hurt received, and before [the declarant] had time to devise or contrive any thing for her own advantage.'” From this, it could be argued that statements made to police upon their arrival at the scene, which in domestic cases may range from minutes to some times as long as days after an alleged incident, would not qualify as spontaneous declarations.

There are likely to be other areas in which Crawford will be hotly debated amongst attorneys and ultimately challenged. One anticipated argument that is likely to develop as Crawford is tested is which exceptions fall in the “firmly rooted” category and which do not. Although Crawford makes specific reference to a few of these “firmly rooted exceptions,” such as public records and dying declarations, it does not attempt to specify all of the exceptions that would fall in this category of exceptions. In addition, as noted above, the decision clearly implies that any exceptions should be those that are not fundamentally at odds with the Confrontation Clause and that do not have as their basis an alternative means of judging reliability.

Secondly, there almost certainly will be debate over what will be defined as “testimonial” statements under Crawford. Again, the decision specifies some types of statements as testimonial, including statements offered at preliminary hearings, before grand juries, or at former trials; affidavits; custodial examinations; and other pretrial statements that would reasonably lead the declarant to believe that the statement might be used later at a court proceeding. Police interrogations/interviews also are included as testimonial statements,15 which arguably would include statements taken by any professional in the context of an investigative or forensic interview. However, there is likely to be an ongoing debate with respect to other types of statements that were not specified in the decision as to whether such statements would qualify as “testimonial.”

The Supreme Court recognized this as noted by its comment, “[W]e leave for another day any effort to spell out a comprehensive definition of ‘testimonial,'” which leaves the door wide open for future challenges as to the types of statements that were intended and not intended to be included under Crawford. Another argument that is ripe for litigation under Crawford is related to hearsay admissibility in cases where the alleged victim is available to testify. At first glance, it may appear that Crawford would not affect such cases given that the decision specifically states that “… when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.” However, some states have created statutes on victim hearsay exceptions that rely upon judicial determinations of reliability, regardless of whether the named victim is or is not available to testify. In fact, some of these exceptions use the same procedures for determining admissibility of hearsay that were strongly denounced in Crawford.

Given that many of these statutes were written to comport with Roberts and would be considered modern hearsay rules, constitutional challenges against the admission of hearsay are almost certain, even in cases where the witness appears at trial. With the multitude of negative references to exceptions that rely upon judicial determinations of reliability that are used in Crawford, attorneys will have their pick of quotes for motions to exclude hearsay based on such statutes (i.e.: “Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation.”)

In fact, to not exclude hearsay statements that rely upon judicial determinations of trustworthiness may well be reversible error in that Crawford has found Roberts, and arguably any statutes based on Roberts, to be “… inherently, and therefore permanently, unpredictable.”

Although the actual impact of Crawford on litigation in abuse cases remains to be seen, the reality is that Crawford has opened the door to what promises to be an onslaught of challenges to hearsay exceptions, which likely will result in the exclusion of hearsay that historically has been widely relied upon by the government to help prove its cases. In some cases, the impact may be crippling to the prosecution. Therefore, the stage is set for attempts by the government to have hearsay admitted under other exceptions that are firmly rooted and not dependent upon judicial determinations.

One example is the hearsay exception that allows statements made for the purposes of medical diagnosis or treatment. Elderly victims are more likely than other victims to be under the care of medical doctors and may make statements to these doctors relevant to the criminal allegations. Also, in physical child and elderly abuse cases as well as domestic violence cases resulting in physical injuries, statements related to the allegations may be given to medical staff brought in to assess and/or treat the injuries. Whereas victim statements may no longer be allowed in under Crawford, statements given to medical professionals are likely to be relied upon more heavily by prosecutors to counteract the impact of Crawford.

Another anticipated debate related to the medical exception is whether statements given to mental health professionals for diagnosis and treatment purposes will apply under this exception. Until Crawford, this argument was not necessary in states where there were special hearsay exceptions for victims of child and elderly abuse. Now, however, Crawford is likely to bring such arguments to the forefront of abuse litigation.

As with all major decisions, Crawford is a decision that will be debated, argued, and tested through challenges at all levels of the criminal justice system. These challenges will eventually more firmly establish the specific parameters of Crawford as it relates to the admissibility of hearsay in all types of cases, particularly child, elderly, and domestic abuse litigation. Yet for now, the verdict, so to speak, is in.

Confrontation has been affirmed as the most reliable method to satisfy the constitutional demands related to the admissibility of out-of-court statements.