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Illinois Supreme Court deems statements to clinician and social worker to be testimonial

By Richard D. Friedman

The Illinois Supreme Court issued a significant decision today in People v. Stechly (and thanks to my former student Brian Koch for pointing it out to me). It holds that a child's statement of abuse made to her mother was not testimonial, but that statements made to a clinical specialist in charge of a hospital child-abuse team and to a social worker at the child's school were testimonial -- and that the error in mischaracterizing these statements was reversible. The Court adopts the view of testimonial articulated in United States v. Cromer, 389 F.3d 662 (6th Cir. 2004). That's good.

The court also adopts a narrow view of forfeiture outside the context of murder, holding that intent (in the sense of purpose, not of anticipation of the natural consequences of one's actions) to procure the witness's absence is necessary for forfeiture. The court distinguishes murder cases -- without holding definitively that intent is not required in those cases -- on the ground that in a murder case the perpetrator has "absolute certainty" that the murdered witness will be unavailable to testify. Well, I don't see how that distinguishes murder -- it's at most just a very strong anticipation of unavailability. And in fact, the perpetrator doesn't have that certainty in most of the cases where the issue arises. The typical case is one in which the defendant (by hypothesis) cast the fatal blow, and the victim makes a statement afterwards; the accused can't necessarily know that the victim won't survive long enough for confrontation at least at a deposition.

Full post as published by The Confrontation Blog on April 19, 2007 (boomark / email).