Crawford at Its Limits: Hearsay and Forfeiture in Child Abuse Cases

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Child abuse cases present some of the most challenging issues in criminal justice. Judges are often in a position where they must balance a defendant's fight to confront her accusers in court, the practical difficulties of forcing a young child to testify, and the state's interest in protecting victims from additional psychological harm. (1) These cases are difficult to prosecute because often the only witness is a child who may be unable to understand the nature of the crime, (2) the effect of their testimony, (3) or be too traumatized to testify. (4) As a result, the court may conclude that the witness is unavailable to testify. If the court determines that a victim is "unavailable" under the applicable rule of evidence, then the child, who will likely be the only individual with personal knowledge of the event, will be precluded from testifying about the abuse or any statements she may have made to others. Though Federal Rule of Evidence 804 does not include trauma as one of the five illustrative alternatives to meet the unavailability requirement, a child who is too frightened of the defendant to testify will have the same status as a witness who had died or invoked a privilege. (5) Whether or not the unavailability is a formal prerequisite for admission of out of court statements into evidence, prosecutors will only be able to use the statements if they meet a hearsay exception. (6)

Though already a difficult question, the Supreme Court's 2004 decision, Crawford v. Washington, (7) dramatically redefined the framework under which judges must assess hearsay statements to protect the confrontation rights of defendants. The majority opinion sketched out a new test that requires the judge to determine whether the out-of-court statement was "testimonial," or uttered by the declarant knowing it could be used in a future trial against the defendant. (8) Statements taken by police officers in the course of an investigation are perhaps the clearest example of such statements, whereas statements to family members will almost never be testimonial. The Court has not addressed the Confrontation Clause in a child abuse case since 2004, but Crawford had an instant and profound effect on prosecutions. Many statements that had been admissible under hearsay exceptions prior to Crawford are now excluded. (9)

This Note will argue that although Crawford and its progeny have, with a few exceptions, produced reasonably consistent results in cases involving out-of-court statements of child abuse victims, several lingering questions require the Court's clarification. First, though the Supreme Court created a "primary purpose" test for analyzing hearsay in Davis v. Washington (10) that easily classifies some types of child hearsay statements as either testimonial or non-testimonial, the test is more problematic when applied to other actors involved in child abuse investigations. Child abuse cases usually involve, often by law, multiple actors working in concert, including law enforcement, social workers, counselors, and medical professionals. (11) Interviews with children will often be conducted for multiple purposes with law enforcement present. The Court had an opportunity to give lower courts more guidance last year in Iowa v. Bentley, (12) a case involving a child abuse victim who was later murdered, but declined to hear the case.

Second, the Court's recent decision in Giles v. California (13) poses additional problems for judges in child abuse cases. Giles was a domestic violence case in which the Court held that a defendant waives Confrontation Clause protection only by intending, and not merely causing, the unavailability of the witness. (14) Forfeiture by wrongdoing had often been an issue in child abuse cases where the trauma of the abuse caused the victim's unavailability at trial, either by the abuser warning the child not to tell anyone or by threatening physical harm. (15) Though, when read with the dissent, the Court in Giles seems to be adopting a strict test, language in the majority opinion has allowed some courts to consider past threats or abuse intended to deter the victim from seeking outside help as sufficient to show forfeiture. …


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