Another stab at Crawford
Ever since the US Supreme Court revolutionized 6th Amendment jurisprudence with its 2004 decision in Crawford v. Washington, courts have wrestled with the issue of exactly what constitutes a "testimonial" statement under Crawford. The Ohio Supreme Court's done it three times, and took another shot at the issue yesterday in State v. Arnold. It did little to clarify the issue, and there's a case to be made that it muddied it further.
The court first dealt with Crawford in State v. Stahl discussed here), which concerned the admissibility of the victim's statement to a nurse. The court seized on one of the definitions Crawford had provided for a "testimonial" statement -- "statements that were 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 concluded that the victim didn't have such an expectation. That conclusion was debatable: a police officer was in the room during the interview, and the form the victim signed clearly stated that the info would be used in the investigation and prosecution of the crime.
An additional problem was focusing on the expectations of the witness, as was made clear in the next case that came along, State v. Siler (discussed here), which involved statements made by a three-year old boy to a police officer; obviously, a three-year old would have no conception of what a trial was, let alone whether his statement would be used at one. The court then shifted to reliance on the US Supreme Court's subsequent decision in Davis v. Washington, that a statement to a police officer was not testimonial if the primary purpose of the interrogation was to respond to an ongoing emergency, but was testimonial if the primary purpose was to gather facts for future prosecution. Here it was the latter, and the boy's statement was deemed inadmissible.
The third case in the trilogy was State v. Muttart, where the court had no trouble deciding that there were no Crawford problems: the statements involved were to nurses, doctors, and family members, not to law enforcement personnel.
Arnold, as did Muttart, involved statements by a child about being sexually molested. The difference was that in Arnold, the statements were made to a representative of a Center for Child and Family Advocacy. These centers are actually authorized under a section of the Ohio Revised Code, and provide a "multidisciplinary team" for investigating allegations of child abuse. The child was interviewed by a social worker, with the interview being recorded on DVD and broadcast into another room, where it was viewed by several people, including a police detective.
The question in Arnold was what purpose the social worker was serving during the interview of the child. If she was acting as an agent of the police, then the child's statements would be testimonial; if she was asking questions for the purpose of ensuring that the child would receive the necessary medical care, then the statements would be admissible. The court decided to split the baby, finding that the worker was acting in a "dual capacity": some statements were made for "a forensic or investigative purpose," while others were "necessary to diagnose and medically treat" the child.
There's plenty of room to criticize the decision on the merits. As Justice O'Donnell notes in his dissent (the decision was 4-2, with Pfeifer dissenting separately), virtually every state court which has addressed a similar situation has concluded that the child advocate is indeed a police agent, and that any statements elicited are testimonial. O'Donnell has no trouble concluding that while some of the questions might have had a secondary purpose of gaining information for medical diagnosis, the thrust of the interview was prosecutorial. His view on this point is buttressed by the advocate's report,
something the majority opinion does not address. It uses the words "perpetrator" and "allegations" and includes a witness list, an item typically not found in a medical report. The report states that the patient should have no contact with the "alleged perpetrator as this investigation continues." The report indicates that Marshall believed that she was assisting an ongoing investigation targeting a particular criminal suspect. When interviewers believe themselves to be participants in an investigation that has targeted a particular criminal suspect, they conduct precisely the type of ex parte examinations that the Confrontation Clause protects against.
Perhaps most problematic with the court's decision is its approach of trying to deconstruct the interview and divide it into testimonial and nontestimonial parts, rather than simply viewing its purpose as a whole. The majority finds that the child's statements about where her mother and brother were during the time of the incident, how her underwear was removed, and what Arnold's boxer shorts and "pee-pee" looked like were testimonial, but that the statements describing what Arnold did "were necessary for the proper medical diagnosis and treatment" of the child. If it is indeed meant to be read this broadly -- that what actually happened falls under the rubric of "medical diagnosis and treatment" -- it creates an exception to Crawford that swallows the rule: isn't the entire purpose of Crawford to forbid the state from defeating the defendant's confrontation right by allowing the submission of out-of-court statements about the incident for which he's being tried? (Keep in mind that the child had received medical treatment the night before, and that her interrogator was not medical professional.) If the decision isn't to be read that broadly, then it will be up to the lower courts to parse through statements, deciding on a line-by-line basis whether to put a particular statement into the testimonial stack or the non-testimonial stack.