Public Defense

The tender Crawford

By Gideon

As if child sex cases weren’t difficult enough, there are a couple of disturbing developments (at least here in CT) in this arena.

The first, covered well by Norm, is a proposed change to the Connecticut Code of Evidence. Norm explains:

Proposed Section 8-10 of the Rules would permit a statement made by a child to be admissible in lieu of live testimony if the following circumstances were met: First, the court would have to find the statement trustworthy; next, the statement was not made in preparation for litigation; third the child either testifies and is subject to cross-examination or is otherwise unavailable.

I hope the Rules Committee members were giggling when they cooked this up, at least that would show they have not altogether abandoned reason. Decoded, the rule will result in trials without child witnesses; defendants will simply have to confront a cold statement.

What is most disturbing (among a lot of other disturbing things) is that last part of the third circumstance: the unavailability of children. As anyone versed with the law knows, unvailability does not mean physically unavailable; reluctance to testify qualifies. The scary part is that this unvailability requirement essentially permits the introduction of inculpatory and incriminating statements with zero opportunity to cross-examine.

Sixth Amendment? What sixth amendment? Imagine this: There will be trials conducted in which a child can accuse someone of sexual assault and never have that assertion challenged by anyone. This is truly scary stuff, folks. Lock your doors and never, ever be in the presence of children, for one allegation is all it can take to ruin your life.

One would think this is squarely covered by Crawford. The problem, however, arises in defining what is a testimonial statement. By adding this requirement, SCOTUS has provided wiggle-room (whether intentional or not) to prosecutors to introduce statements that realistically should not be admitted.

As Norm correctly points out, any time there is an initial allegation of sexual abuse, the wheels of the criminal justice start turning. Anything after that - the interviews by doctors, social workers, forensic pathologists, are for the purpose of determing who abused the child and how, not if. There are mandatory reporting requirements and the allegations are duly conveyed to the State, which duly institutes a prosecution. But yet, there has to be a determination by a trial judge, faced with a young child and their outraged family, that these statements were made with a prosecution in mind. This is extremely subjective and almost always results in the statement being admitted.

So we end up with trials where a videotaped statement by the victim is admitted into evidence and the defendant has been forced to forfeit his right to confrontation. The word of the victim is now gold and goes unchallenged. Convictions are almost a foregone conclusion and obscene sentences the norm.

This is a very, very troublesome situation and I sincerely hope that the defense bar is fighting it tooth and nail. What do you guys do to combat these situations? What’s the best tact?

Previous posts:

• Why kids lie (and they certainly do)
• CT Senate passes harsh ?Jessica?s Law? and ?tender years? exception
• CT persists with ?tender years? bill despite Crawford
• ?tender years? and Crawford
• Tender Years II
• ?tender years? exception to hearsay

Tags: tender+years, crawford, testimonial, connecticut, evidence

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Full post as published by A Public Defender on June 04, 2008 (boomark / email).