Crawford and 807
I used to say that while the 8th District was the best court in the state, if not the country, on 4th Amendment issues, its work on hearsay issues was, shall we say, less than stellar. My advice was that if you were charged with a crime up here, don't worry about what the police found, because that would get thrown out, but everything anybody ever said about you or the crime would come in. After the decision last week in State v. Clark, I might have to reassess that view.
Clark involves your typically nasty set of allegations of child physical abuse: two children, ages 2 and 4, with multiple bruises and burn marks, the younger one having "a pattern of sores at her hairline consistent with braids being ripped out of her head." While Clark clearly had the opportunity -- he was watching the children for his girlfriend, their mother -- the only evidence supporting his convictions for abusing the 4-year-old (he was acquitted of the charge involving the 2-year-old) and the resulting 28-year sentence was child victim's statement identifying him as the perpetrator. But the boy didn't tell that to a jury; the trial judge found him incompetent to testify.
Seven years ago that would have been inconsequential, because the evidence would have come in anyway under a hearsay exception; one could make a fairly good argument, based on a survey of the case law over the past forty years, that it is impossible for a child in Ohio under the age of five to say anything that could not be regarded as an excited utterance. But that all changed with the Supreme Court's 2004 decision in Crawford v. Washington: the question now becomes whether the statement is testimonial.
That question, in turn, depends largely on to whom the statements were made. Here, there were seven witnesses who testified as to the boy's statements: the detective, two social workers, two teachers, and two relatives.
Why does that matter? As the Clark opinion explains in its painstaking recitation of the lead cases on the issue, from both the US and Ohio Supreme Courts, whether a statement is testimonial turns largely on the purpose for which it was made. Crawford was based on the notion that the Framers of the 6th Amendment were primarily concerned with excluding ex parte statements made to government officials and then introduced at trial without cross-examination. While Crawford involved the prototypical ex parte statement -- a written statement to police as a result of an interrogation at the station -- later decisions, like Davis v. Washington and last year's decision in Michigan v. Bryant, involved questioning under far less formal circumstances, and resulted in the "primary purpose" doctrine: a statement wasn't testimonial if its primary purpose was to summon police aid for an ongoing emergency, but was testimonial if the interrogation was to develop facts for prosecution. The Ohio Supreme Court, in State v. Arnold, (discussed here) had also developed the "dual capacity" doctrine: certain interviews, particularly by social workers or forensic nurses, could produce both testimonial and non-testimonial statements, depending upon whether the purpose of the questioning was to provide medical treatment or gather information for the police investigation.
The boy's statement to the police detective in Clark is an easy call: the court notes that it wasn't "elicited for medical purposes or to assist an ongoing police emergency." The opinion spends more time than it needs to discussing Arnold in the context of the boy's statements to the social worker, determining that the social worker was acting in a "dual capacity." I'm not sure that's correct; the child advocate in Arnold had obtained some statements that were at least arguably relevant to medical treatment, which wasn't at all present here. The real question is not so much what the purpose of the questioning was, but whether the social workers were acting as "law enforcement" agents when they engaged in it. The court finds that the workers do have a duty to keep children safe, but that gets back to the "ongoing emergency" issue, and there wasn't one. In the absence of such an emergency, the purpose of the interrogation was to develop facts for trial, and that's prohibited under Crawford.
That leaves the teachers, and this is a much closer call. The opinion here goes back to Crawford's original formulation of when a statement is testimonial: whether an objective witness would anticipate that the statement would be available for use at trial. Of course, the child here would have had no concept of what a trial was, let alone the ability to gauge whether his statement would have been available at one, but the Ohio Supreme Court's decision in State v. Siler (discussed here) makes age irrelevant in determining what an "objective" witness would anticipate. The question here is whether the teachers can be deemed to be government agents. The court finds that they are, based solely on the fact that they had a mandatory obligation to report child abuse, and thus the "primary purpose" of their questioning of the child was "to report potential child abuse to law enforcement."
The two relatives to whom the child identified Clark as the perpetrator certainly could not be considered as government agents, so Crawford doesn't apply; admissibility of the relative's statements depends upon EvidR 807, a special hearsay exception pertaining to statements made by child victims of abuse. To qualify, the statement has to have "particularized guarantees of trustworthiness," and there has to be independent proof of the abuse.
This is where the trial court's finding that the child was incompetent to testify comes into play; the opinion explains that the court is "concerned with reconciling the court's finding L.P. incompetent to testify in November of 2010 with the court's finding that statements L.P. made eight months prior were reliable enough to be admitted at trial."
The court notes that "Ohio law is not clear on the precise point," which is an understatement. While the Supreme Court has held that a determination that a child is incompetent as a witness does not affect the validity of a statement admitted as an excited utterance or one made for purposes of medical diagnosis and treatment, the cases on admissibility of 807 statements are much more muddled. Back in 1994, in State v. Said, the court dealt with a situation where the trial court had failed to record the hearing to determine the child's competency. The court found this to be error, but the majority ventured further, holding that 807 "does not dispose of the need to find a child competent." Three years ago, in State v. Silverman, the court backed off that, holding that nothing in 807 required a finding that the child was competent.
In Silverman, though, the child had died, so a determination of competency, one way or the other, was impossible. That's a distinction that the Clark opinion relies upon, but it's undercut by the fact that Silverman cites several cases from other states in which evidence under rules similar to 807 was admitted despite a finding that the child was incompetent to testify.
The other interesting aspect of Clark's treatment of 807 is with regard to the element of corroboration. While this could be read simply to require that there be some corroboration of the abuse, such as medical evidence of injuries, the court reads the requirement much more narrowly: since identity is the issue here, there must be some corroboration that Clark was indeed the perpetrator.
Given Clark's expansive reading of Crawford and the questions the opinion raises about Rule 807, it's quite possible that the Supreme Court is going to have the last word on this. But for now, enjoy it while it lasts: Clark is an absolute must-have for any defense attorney handling a case involving child abuse.