By Hafemeister, Thomas L.
Developments in Mental Health Law , Vol. 27, No. 2
The Sixth Amendment's Confrontation Clause guarantees criminal defendants the right to confront and cross-examine witnesses who provide testimony against the defendant. This becomes an issue in criminal trials when victims or witnesses to a crime have previously made statements to someone (e.g., to a police officer or a health care provider) but are unavailable or unwilling to testify at trial. If this person's testimony is essential to the prosecution's case but inadmissible under the Confrontation Clause, the prosecution may not be able to meet the requirement that it prove the defendant's guilt beyond a reasonable doubt. The purpose of the Confrontation Clause and the right to cross-examine witnesses is to assure that the evidence introduced at trial is truthful and accurate by giving defendants an opportunity to test the veracity and reliability of a witness by (1) posing questions to the witness that challenge the witness' recall of events and (2) enabling the jury or judge to observe the demeanor of the witness while providing testimony.
In recent years, the courts have tended to carve out exceptions to this Sixth Amendment right to enable child witnesses to avoid providing trial testimony when it may be a traumatic experience for the child. In Maryland v. Craig, 497 U.S. 836, 840 (1990), the United States Supreme Court held that the Confrontation Clause does not "categorically prohibit" testimony via closed circuit television by a child victim of sexual abuse if in-court testimony would be traumatic for the child. The Court determined that this approach adequately ensured that the testimony was both reliable and subject to rigorous adversarial testing in a manner functionally equivalent to that accorded live, in-person testimony.
However, in Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court established that the test for determining whether out-of-court statements violate the Confrontation Clause is not whether they are reliable but, rather, whether they are "testimonial." Although not defined expressly, "testimonial" statements include statements "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Testimonial statements made by a person not testifying at trial are admissible (often via the recounting of a third party) only if the person making the statement is unavailable to provide testimony and the defendant had a prior opportunity to cross-examine the person. Non-testimonial statements, however, are not subject to these prerequisites. The court in Crawford, however, gave little guidance to lower courts on how to distinguish testimonial statements from non-testimonial statements.
In two later cases, Davis v. Washington and Hammon v. Indiana, consolidated at 547 U.S. 813 (2006), the Supreme Court provided a more precise depiction of "testimonial" when it was asked to determine if statements made to a 911 operator were testimonial. The Court held that statements are non-testimonial (and thus admissible without providing the defendant an opportunity to cross-examine the person who made the statements) if they were made in the course of a police interrogation but the circumstances objectively indicated that the primary purpose of the questioning was to enable police assistance to meet an ongoing emergency. In contrast, statements are testimonial (and thus not admissible without permitting the defendant to "confront" the source of the statements) when the circumstances objectively indicate that there was not an ongoing emergency and the primary purpose of the questioning was to establish or prove past events potentially relevant to later criminal prosecution.
It has been argued, however, that a special rule should be applied when a child has made the out-of-court statements, with the child's statements viewed as non-testimonial--even if an emergency did not exist--when the child because of his or her age and limited understanding of courts or trials could not reasonably expect that those statements may be used in a later proceeding. …