Crawford, Stahl, and Siler: Part II
Yesterday we talked about the Ohio Supreme Court's forthcoming decision in State v. Siler, which was argued a couple of weeks ago. Siler involves the statements of 3-year-old Nathan Siler to a police officer investigating his mother's death; the court of appeals reversed the conviction of the defendant -- the boy's father -- on the basis that Nathan's statements were "testimonial," and their admission at trial violated the defendant's rights under Crawford v. Washington.
Follow Stahl: In Stahl, the Court keyed on Crawford's definition of a testimonial statement as one made "under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial," and expanded on that by holding that "courts should focus on the expectation of the declarant at the time of making the statement; the intent of a questioner is relevant only if it could affect a reasonable declarant's expectations." As I mentioned yesterday, the Court didn't really explain why the expectations of the declarant should control the question of admissibility, and the problems inherent in that formulation become manifest in Siler: while one might debate whether the victim in Stahl expected her statement to be used at trial, there's no question that Nathan Siler had no idea what a trial was, let alone gave any thought to whether his statement would be admitted at one.
Needless to say, that's the stance the prosecutor urged the Court to adopt, and in fact went further: she urged that the age of the child should play an important role in making that determination, sort of a "de facto" rule that a child under a certain age was inherently incapable of giving a testimonial statement. Where this would wind up going was posed in a question by Justice O'Connor: what about an adult who was mentally retarded?
And this is where it all unravels. It's bad enough that you're trying to divine a person's expectation; now you're trying to define their ability to formulate those expectations. It may well be that a child of five or six (or even three or four) has no understanding of how the judicial process works, but many have an understanding of right and wrong, and the concept of consquences and punishment. If they know that if they say somebody did bad things, that person will be punished, isn't that the functional equivalent of believing that the statement "would be available for use at a later trial"?
What's more, it's going to be a lot harder this time to reconcile Stahl's holding with the more objective test employed in Davis and Hamdan. In Stahl, the Court distinguished those two cases on the basis that they involved statements to police officers, and the statement in Stahl was made to a nurse. They can't do that with Siler. That, of course, leads us to the second possible course for the Court to take...
Distinguish Stahl: In fact, that's exactly what the defense urged in oral argument: this is different from Stahl. The defense argued for a flat rule that any statement made in response to a police interrogation about "past facts" is testimonial. That contention is certainly logical, and results from a fair reading of Davis and Hamman; what's more, it avoids the problem of trying to persuade the court to overrule a decision it made just last year, which isn't going to happen.
The validity of such a distinction isn't so clear, though. It would obviously mean excluding the child's statements, and it would be difficult to reconcile that result with Stahl: an adult didn't have an expectation that the statement would be used at trial, but a 3-year-old did? What's more, there are some serious ramifications of that holding as well. In a child abuse case, does that mean that the "testimonial" issue can be avoided by having a social worker talk to the child instead of the police? In Davis, the court held that statements to "agents" of the police -- the 911 operator in that case -- were evaluated in the same light as statements to the police themselves. But it's not difficult to foresee problems with a rigid application of a "police interrogation" model.
Avoid the testimonial question entirely: This was the escape route offered by Judge Patrick McGrath of the 10th District, sitting in for Justice Cupp, who'd recused himself. During the prosecutor's argument, McGrath lobbed up a softball question about whether the police officer even knew that he was investigating a homicide, rather than a suicide, when he first talked to the boy. The prosecutor promptly swatted it out of the park, claiming that the officer was simply trying to determine what had happened. This, arguably, would remove the "interrogation" aspect from the case, and thus eliminate the whole issue of whether the statement was testimonial.
Obviously, I haven't reviewed the entire record, but there are various comments in the appellate court opinions which seem to undercut that theory: the garage door had been forced open, the mother's body had bruises, and the officer's questions to the child almost immediately focused on his father. If the Court did follow this tack, it wouldn't be the first time a court ignored the facts to reach the result it wanted, and it wouldn't be the last. Still, the facts here are a little too prominent, and the case far too important, to fluff the issue off on that basis.
What should the Court do? The most important function of an appellate court is to give guidance, to harmonize the law, as much as possible. The problem with Stahl is the reason that the law rarely employs "subjective" tests: there's no clear standard to guide the lower courts (or juries) in making their determinations. Use of an objective standard, especially a "bright-line" test that statements made as a result of police interrogations as to past events are testimonial, would go a long way toward clarifying some of the post-Crawford confusion.
What will the Court do? I'd bet on a 4-3 decision following Stahl and reversing the 5th District's decision excluding the statements.