Criminal Justice Section
Criminal Justice Magazine
Volume 20 Issue 2
Crawford in Juvenile Court
By Robert Shepherd
Robert E. Shepherd, Jr., is emeritus professor of law at the University of Richmond School of Law in Virginia. He is also a contributing editor to Criminal Justice magazine and former chair of the Section's Juvenile Justice Committee.
As the feature articles in this issue have addressed, the United States Supreme Court’s decision in Crawford v. Washington, 124 S. Ct. 1354 (2004), has had a profound effect on the criminal justice system in a relatively short period of time. This column will focus on the decision’s impact in the juvenile or family court, and its unique focus on children, youths, and families. The jurisdiction of these courts differs drastically across the country, and the breadth of Crawford’s impact will vary based on the court’s jurisdiction. Many such courts have jurisdiction not only over delinquency and noncriminal misbehavior, such as status offenses, but also over child abuse and neglect and dependency proceedings. Because such proceedings are civil, the Confrontation Clause of the U.S. Constitution’s Sixth Amendment is not applicable, and the admissibility of hearsay evidence is governed solely by the state’s rules of evidence. However, for state courts, such as Virginia’s, that have jurisdiction over adults who commit criminal offenses against children or over adults charged criminally with domestic violence offenses, Crawford presents a number of problems. Of course, Crawford would similarly apply to juveniles charged with delinquency in light of the Confrontation Clause discussion in In re Gault, 387 U.S. 1 (1967). Although other articles and columns may have plumbed some of the same depths, this column will focus as a unit on some of the common Crawford issues that may arise in the juvenile court context.
The core holding of Crawford, as other articles in this issue observe in greater detail, is that the Confrontation Clause of the Sixth Amendment requires that when hearsay statements of an unavailable declarant are “testimonial” in nature, the criminal defendant must be afforded a prior opportunity to cross-examine the witness. The decision changed course dramatically from the earlier decision in Ohio v. Roberts, 448 U.S. 56 (1980), that hearsay statements offered under exceptions to the hearsay rule could be admitted if the statement bore “adequate indicia of reliability,” a circumstance inferred if the statement fell within a “firmly rooted” exception to the hearsay rule. (Id. at 66.) Crawford, for the specific purposes of this column, also casts doubt on the continued viability of the intervening decision of Idaho v. Wright, 497 U.S. 805 (1990), which built on Roberts in holding that child hearsay evidence could be used in a criminal case if the youthful witness was unavailable and the statement had “particularized guarantees of trustworthiness” as shown from “the totality of the circumstances” surrounding the making of the statement. (Id. at 819.) It also casts some doubt on the vitality of White v. Illinois, 502 U.S. 346 (1992), another child abuse case where a young child’s “excited utterances” to a babysitter and to her mother were admitted and the admission was upheld by the Supreme Court. Footnote 8 to the Crawford opinion states that White is “arguably in tension with the rule requiring a prior opportunity for cross-examination when the proffered statement is testimonial,” but it does not expressly overrule the case, and some commentators believe that excited utterances are clearly nontestimonial. (541 U.S. at 58)
There are clearly a number of situations where Crawford may narrow considerably the scope of hearsay evidence of statements made by nontestifying children that will be admitted at trial, and a growing body of case law across the country has taken that approach. Interviews of child victims by police officers or by child protective service workers have been particularly vulnerable (see, e.g., State v. Snowden, 385 Md. 64, 867 A.2d 314 (2005)), and even evidence elicited by privately sponsored multidisciplinary teams that customarily question youthful abuse victims has been excluded in the wake of Crawford. (See, e.g., People v. Sisavath, 118 Cal. App. 4th 1396, 13 Cal. Rptr. 3d 753 (Ct. App. 2004).) As in the Wright case, courts have increasingly questioned the admissibility of statements made by children to medical personnel, even though they are offered under the “medical treatment/diagnosis” exception to the hearsay rule, and thus are arguably not testimonial in nature, although a growing number of courts have allowed admission of at least parts of statements to medical personnel. (See, e.g., State v. Vaught, 268 Neb. 316, 682 N.W.2d 284 (2004); State v. Scacchetti, 690 N.W.2d 393 (Minn. App. 2005).) Courts also have been more cautious in allowing the introduction of the contents of “911” calls made to emergency telephone operators in both child abuse and domestic violence cases. (See, e.g., People v. Cortes, 781 N.Y.S.2d 401 (N.Y. Sup. Ct. 2004).) Courts generally have not engaged in fine analyses, as some commentators have suggested, of whether young children comprehend what a “testimonial” purpose of an interview may be, or even that the information they provided would ever be used in a court proceeding. (See, e.g., People ex rel. R.A.S., 2004 WL 1351383 (Colo. Ct. App. 2004), which was a juvenile delinquency proceeding involving a youth charged with sexual abuse of a younger child).) They also have not focused on the primary purpose of a forensic interview, treatment or future protection of the child as opposed to criminal prosecution of the alleged abuser, in assessing compliance with Crawford. There is thus an entirely new landscape for evidence obtained from children who have been victimized physically or sexually, or from the family member abused by domestic violence and who may have second thoughts about pursuing the matter legally and thus is reluctant to testify after all or may alter his or her story on the witness stand.
Maryland v. Craig issues
As noted above, the Court did not address Craig at all in the Crawford decision. That is not altogether surprising because, although Craig was a Confrontation Clause case, it did not involve hearsay evidence and the child victim testified in the case, albeit under an unusual physical setting in the courtroom. Crawford is premised largely on the absent witness, either because he or she is physically unavailable, or because a child may not be competent to testify or may be psychologically unable to function in the courtroom setting. Crawford would not seem to cast any doubt on the authority of Craig or the constitutionality of state closed-circuit testimony schemes. In fact, although Craig dealt with “one-way” closed circuit television where the accused could see the child victim, many states have gone a step further and enacted “two-way” closed circuit statutes where both the accused and the victim may see the other via the television process. What Craig does require is for the state to establish the necessity for the use of closed-circuit television through three findings by the trial court: first, whether the use of the procedure is necessary to protect the welfare of the child; second, that being in the presence of the defendant would traumatize the child; and third, that this traumatization is more than mere nervousness or a reluctance to testify, and that it derives from being in the defendant’s presence and not simply from the courtroom environment. Other than the simple fact that Crawford has raised the bar a bit in Confrontation Clause cases, Craig should be safe from the closer scrutiny.
What Crawford undoubtedly will do in cases where children or family members are the victims and complaining witnesses in criminal cases is place a premium on the prosecution securing the live testimony of that person in the courtroom. That is generally what prosecutors wish to do anyway, especially if there is a jury in the box rather than just a judge as the fact finder. They want the abused child or adult physically in the courtroom testifying in the presence of the jury without having to rely on secondhand evidence introduced through some other witness. Thus, prosecutors, and their allies in social services or mental health, will have to focus more on preparing the child or adult victim to go into court willing and able to give evidence from the witness stand. Craig will still afford a tool for the child who is traumatized by the perpetrator, at least if she or he is young enough to fit under the jurisdiction’s age cap for the use of closed-circuit television, which ranges from ages nine to 17 among the 50 states, but those cases tend to be relatively rare. Perhaps the Supreme Court will eventually define what it means by a statement being “testimonial” in nature in a fashion that will allow additional leeway in cases involving child victims, but until that happens it is better for careful prosecutors to take a conservative approach in viewing a case against the backdrop of Crawford. As long as the child or adult witness testifies and is subject to cross-examination, other evidence admissible under either traditional or residual hearsay exceptions may come in, including videotapes or the results of pretrial interviews.