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Confronting Confrontation: Adventures in Criminal Evidence

By Hon. Amy B. Karan
NJC Faculty Council Chair, Miami, FL

12/10/2007

You have been sitting in the civil division for several years. Then, to your great surprise (or not), you are transferred back to the criminal division. You are assigned a domestic violence homicide. You think “no problem, criminal evidence is the same as civil evidence, isn’t it?”
The first issue surfaces when you receive a motion in limine to exclude statements the victim and her child made. The pertinent facts follow:

Miriam was married to William for 12 years. Their youngest child, Amalia, reported to her teacher that her dad had inappropriately touched her genitals.

School officials notified Miriam. Then, without consulting William, she met with the teacher, and brought Amalia to the Children’s Resources Center for an interview with a forensic sexual assault nurse. Subsequently, the police arrested William and charged him with child sexual abuse. He bonded out of jail and returned home, despite the existence of a criminal no contact order.

Upon receiving discovery, William learned his wife voluntarily brought Amalia to the Resource Center interview. A heated argument ensued. Then, William choked Miriam and said “you b…, my charges are all your fault, I ought to kill you!”

Her child called 911, and the police responded. Miriam stated “my husband William found out I took our daughter to the Children’s Resource Center for an interview about child abuse. He went crazy, choked me and threatened to kill me.” The officer attempted to talk to William, however, he had fled through the back door. The following day, Miriam’s son found her stabbed to death. The State charged William with her murder.

The Motion in Limine seeks to exclude the following statements on hearsay and confrontation clause grounds:

1. The minor child, Amalia’s statement to the sexual assault nurse about the sexual abuse; and

2. Miriam’s statement to the police the day before her death regarding the choking and William’s threats.

In 2004, the United States Supreme Court overruled a longstanding precedent on confrontation in Crawford v. Washington. The Court clarified that confrontation is implicated by out-of-court statements only insofar as they are contained in testimonial material. The Court stated, when “testimonial” statements are at issue, the only indicia of reliability sufficient to satisfy constitutional demands is the one that the Constitution prescribes: confrontation. Therefore, in order to admit testimonial statements against a criminal defendant, the declarant must be present in court to testify, or the proponent of the statement must prove the declarant’s unavailability and that the defendant had a prior opportunity to cross examine the statement.

Then, in 2006, the Court clarified when a statement made to the police is testimonial in Davis v. Washington/Hammon v. Indiana. The Court announced the “primary purpose” test, providing that out-of-court statements, made in the course of police interrogation, are non-testimonial when made under circumstances objectively indicating the primary purpose of the interrogation was to enable police to meet an ongoing emergency. Conversely, statements are testimonial when the circumstances indicate the primary purpose is to establish or prove past events relevant to later criminal prosecution.

Here, turning first to Amalia’s statement to the forensic nurse, the issue is whether the statements are “testimonial.” Generally, statements made to third party non-police officials are non-testimonial. Also, statements made to medical officials for the purpose of promoting diagnosis and treatment are exceptions to the hearsay rule under Federal Rule of Evidence 803(4).

Numerous cases have held that child statements to forensic examiners in the child abuse context can neither be classified per se testimonial nor non-testimonial. Some are deemed non-testimonial because forensic interviews are not primarily for the purpose of criminal prosecution. On the other hand, statements made to forensic interviewers for the express purpose of furthering police investigation, where a police officer observes or records them, and where the interviewer explicitly attempts to solicit information from the child that would be useful in a later prosecution, are often found to be testimonial. Accordingly, we will need more facts to decide whether Amalia’s statement should be excluded.

Turning to the second statement, the issue is whether Miriam’s statement to the police officer is testimonial. Was Miriam’s statement made to the police to stop an ongoing emergency? Or, was it simply made to report a past crime? And, how do we evaluate the fact the charge in the present case does not involve the acts complained of? To invoke confrontation clause concerns, the out of court statement must be hearsay, offered for the truth of the matter asserted.

For a more in-depth analysis of hearsay and confrontation clause issues, enroll and participate in The National Judicial College’s Selected Criminal Evidence Issues: A Web-Based Course, offered February 18-April 3, 2008, or Criminal Evidence, offered May 19-22, 2008, in Reno. Please call (800) 25-JUDGE for more information or to enroll.