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Responding to instances of child abuse continues to be one of the most challenging areas of family law. This is particularly true if the abuse is sexual in nature. Most often the response to this type of abuse is the prosecution of the perpetrator. These cases pose unique challenges when the victim is a young child. There is often little, if any, physical evidence and the revelation often comes amidst other family trauma. What is more, the testimony of the victim may be difficult to obtain because of competence issues as well as concern over potential further trauma. When obtaining evidence in such cases, a series of measures have been utilized to protect childhood sexual abuse victims. Procedures such as taped statements or the use of one-way cameras have been adopted. In addition, one of the most common approaches has been to allow statements made to third parties, otherwise inadmissible as hearsay, to be introduced at trial. This highly effective procedure has recently been called into question by the U.S. Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004), and its subsequent decisions in Davis v. Washington and its companion case, Hammon v. Indiana, 126 S. Ct. 2266 (2006). These decisions have resulted in a plethora of state court challenges to statutes allowing out-of-court statements in child sexual-abuse prosecutions. In November, the Missouri Supreme Court in Justus v. State, 2006 WL 3392069 (Mo. 2006), joined a number of jurisdictions in reversing convictions that were based on the use of statements that are now viewed as inadmissible under Crawford. In this column we will provide a short history of the accommodations that have been made in child sexual abuse cases and highlight the ramifications of Crawford for their future use. High court grappled with Sixth Amendment tension The U.S. Supreme Court has grappled with the tension between protecting children and protecting a criminal defendant’s Sixth Amendment right to confrontation in a series of cases involving special trial procedures and exceptions to the hearsay rule that permit a child’s out-of-court statement made to a third party to be admitted into evidence. In Coy v Iowa, 487 U.S. 1012 (1988), the Supreme Court invalidated a procedure that permitted a screen to be placed between the defendant child and the child witness designed to shield the child from the defendant as the child testified. The majority opinion emphasized the necessity of a face-to face encounter, but a strong dissent in that case left the door open for other protective procedures. Two years later in Maryland v. Craig, 497 U.S. 836 (1990), the Supreme Court allowed a conviction to stand based on a child’s testimony obtained via a one-way closed-circuit television. The court held that the defendant’s confrontation rights were otherwise protected by the establishment of the child’s competence, the opportunity for cross-examination, the securing of testimony under oath and the judge’s, jury’s and defendant’s ability to observe the witness’s demeanor. Statutes and court rules that permit the use of a child’s out-of-court statements, otherwise inadmissible as hearsay, have presented the greatest challenge to Sixth Amendment confrontation rights. In Ohio v. Roberts, 448 U.S. 56 (1980), the Supreme Court addressed the issue of when it held that an out of court statement made to a third party may be admitted when the declarant is unavailable for trial. The court held that after a showing of unavailability (which may be established by a finding that a child will be traumatized by testifying), a statement is admissible only if it bears adequate “indicia of reliability.” Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the state must establish that there is a particularized guarantee of trustworthiness. In a child sexual abuse case this might be established by spontaneity associated with the disclosure, the child’s mental state as well as knowledge of sexual matters otherwise beyond the understanding of a child of that age or a lack of motive to fabricate. In response to these cases many states enacted specific statutes dealing with children’s testimony and out-of-court statements made in child sexual abuse cases. These statutes generally permit the use of out-of-court statements when the declarant victim is “unavailable” to testify at trial. The statements must still meet the other requirements of reliability and trustworthiness. The Supreme Court turned this world upside down when in 2004 it overruled Roberts. In Crawford, the court held that “[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” In other words, testimonial out-of-court statements are no longer admissible unless the witness takes the stand or the defendant has had a prior opportunity to cross-examine the witness. The court specifically declined to answer the critical question of what is “testimonial,” stating that it would “leave for another day the effort to spell out a comprehensive definition of testimonial.” It provided some direction, noting that the term applies “at a minimum to prior testimony at a preliminary hearing, before a grand jury or at a former trial.” Also included are “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial, and “statements taken by police officers in the course of interrogations.” In two subsequent cases, the court used a “totality of the circumstances” approach in determining whether statements were testimonial in nature. In Davis, the declarant made statements to a 911 operator concerning abuse that was occurring at that time, identifying the defendant as the perpetrator. The court focused on the purpose of the statement and held that it was not testimonial because it was made with the purpose of getting help, not for use in a prosecution. In the companion case, Hammon, however, the court found that statements made to an officer responding to a reported domestic disturbance were testimonial. The court focused on the fact that the emergency situation in this case had passed and at that point the officer was trying to determine if criminal conduct had occurred. The pivotal issues in determining what is a testimonial statement revolve around the question of “purpose.” The court appears to be focusing on whether the declarant or governmental questioner is acting to a substantial degree toward producing a statement for trial. Not surprisingly, given the U.S. Supreme Court’s lack of a clear definition of “testimonial,” state courts have reached divergent results when considering what statements are still admissible after Crawford. In State v. Bobadilla 709 N.W. 2d 243 (Minn. 2006), the Minnesota Supreme Court found the statements made by a 3-year-old to a child-protection worker were not testimonial. In its opinion, the court noted that statements are often made for multiple purposes. In this case, the court found that the main purpose of the interview was to assess whether abuse occurred and what steps were necessary to protect the child. The court further found that given the child’s young age it was highly unlikely the child was capable of understanding whether the statement would be used at a trial. ‘Davis’ shows that status of the interviewer is critical Whether or not the interviewer is found to have been a governmental employee or the interview was made at the behest of the government is also critical. In Davis, the U.S. Supreme Court found that the 911 operator was an agent of law enforcement. A statement made to a social worker in People v Geno, 683 N.W.2d 687 (Mich. Ct. App. 2004), was found not to be testimonial because it was made to the executive director of the Children’s Assessment Center, who the court found was not a governmental employee. On the other hand, in State v. Mack, 101 P.3d 349 (Ore. 2004), the court found that a social worker was acting as a proxy for the police when a 3-year-old was interviewed at the behest of the investigating officer, the police were present at the interview and also videotaped it. Finally in Justus, the defendant challenged his conviction for sexual abuse based on statements made by his 3-year-old daughter to a child-protection worker and a licensed counselor at a Children’s Advocacy Center who videotaped her interview with the child. On appeal, the Missouri Supreme Court found both statements to be testimonial and therefore improperly admitted because the child was unavailable to testify (due to trauma) and the defendant had not had the opportunity for cross-examination. The court relied on several grounds. First, it found that the statements were not made in the midst of an “on-going emergency” as in Davis. The court chose not to focus on the purpose of the social worker’s investigation, which she asserted was to protect the child, but rather that the interview was part of a governmental investigation in a government facility. It further found that the counselor who conducted the videotaped interview was acting as a governmental agent because she was requested to perform a “forensic interview” by the division of family services. Barbara Handschu is a solo practitioner with offices in New York City and Buffalo, N.Y. She can be reached via e-mail at [email protected]. Mary Kay Kisthardt is a professor of law at the University of Missouri-Kansas City School of Law. She can be reached at [email protected].

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