The Reasonable Child Declarant after Davis V. Washington
Funk, Christopher Cannon, Stanford Law Review
INTRODUCTION I. THE U.S. SUPREME COURT SHIFTED FROM FOCUSING ON RELIABILITY TO FOCUSING ON TESTIMONIAL HEARSAY A. In Ohio v. Roberts, the Court Created Its Two Prongs of Unavailability and Reliability B. In Bourjaily v. United States and White v. Illinois, the Court Only Required that Trial Courts Admit Coconspirator Statements and Spontaneous Declarations Under Firmly Rooted Hearsay Exceptions C. In Crawford v. Washington and Davis v. Washington, the Court Shifted Its Focus from Reliability to Testimonial Hearsay II. STATE AND FEDERAL COURTS HAVE APPLIED CRAWFORD AND DAVIS TO CHILD DECLARANTS BY FOCUSING ON THE QUESTIONER'S PURPOSE A. Before Davis, a Majority of State and Federal Courts Focused on the Declarant's Perspective B. After Davis, Courts Have Viewed the Questioner's Perspective as Dispositive Under the Primary-Purpose Test C. State Courts' Reasons for Ignoring the Declarant's Perspective Are Inconsistent with Bourjaily III. COURTS SHOULD ADOPT A REASONABLE-CHILD-DECLARANT APPROACH, CONSIDERING THE CHILD'S AGE, INTELLIGENCE, AND EXPERIENCE A. Four Reasons in Favor of a Reasonable-Child-Declarant Test 1. A child declarant is the cognitive inverse of both a co-conspirator making a statement in the furtherance of a crime and an unsuspecting caller 2. A child who cannot understand she is making an accusation or making statements relevant to a criminal investigation is not a "witness against" the accused 3. Ignorant children should not shoulder the adult-like responsibility of confronting a defendant unless their statement is testimonial 4. An objective approach to child declarants is more reliable than a purely subjective approach B. Courts Should Consider a Child's Age, Intelligence, and Experience 1. The child's age 2. The child's intelligence 3. The child's experience C. Courts Should Presume a Child Has Testimonial Capacity Unless a Prosecutor Shows Otherwise by a Preponderance of the Evidence IV. REBUTTING COUNTER ARGUMENTS TO A REASONABLE-CHILD-DECLARANT APPROACH A. A Reasonable-Child-Declarant Approach Is Not Contrary to the Davis Primary-Purpose Test B. A Reasonable-Child-Declarant Approach Is Objective C. The Confrontation Clause No Longer Depends on How Reliable the Hearsay Exception May Be D. A Reasonable-Child Approach Better Curbs Government Abuse than the Primary-Purpose Test E. Statements in Response to Police Questioning Are Not Per Se Testimonial F. The Court's Condemnation of White and Reference to Brasier Did Not Reject a Reasonable-Child Approach V. RECENT STATE CASES DEMONSTRATE THE NEED FOR A REASONABLE-CHILD-DECLARANT APPROACH A. Sexual Abuse--State v. Brigman B. Murder--State v. Siler CONCLUSION
Three-year-old Nathan Siler told Detective Larry Martin that he wanted to see his mother who, Nathan claimed, was "sleeping standing" in the garage. (l) Tragically, Nathan's mother was dead, hanging from a "yellow cord tied to the track of the overhead garage door." (2) Nathan told Martin that he had seen his father, Brian Siler, and mother fight in the garage the night before and that his father had placed a "yellow thing" around his mother's neck. (3) But Nathan apparently did not understand his mother was dead.
Because Nathan did not testify at Brian's murder trial and the trial court admitted Nathan's statements as evidence without Brian's counsel ever cross-examining Nathan, Brian claimed that the trial court had violated his Sixth Amendment right to confront the witnesses against him. (4) The Sixth Amendment of the U.S. …