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Rethinking child incompetence and the hearsay rules

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Darius Clark was sent to prison for 28 years for child abuse, based on what a 4-year-old, a detective, two social workers, two teachers, and two relatives said happened.  The 4-year-old never appeard at trial, though, the judge having determined that the boy was incompetent to testify.  The other witnesses didn't have anything to say other than what the boy had told them.

Unlike Thomas Ricks, whom we talked about yesterday and whose conviction and sentence for aggravated murder is riding on the outcome of his case, Clark no longer has any skin in the game; regardless of what the Supreme Court decides, he's getting a new trial.  After watching the oral argument on Wednesday, that's probably a good thing.

In order to be admissible, a hearsay statement must not be a testimonial statement under Crawford, and has to fall within a hearsay exception.  When it reversed Clark's conviction a year ago (discussed here), the 8th District found that the testimony of the detectives, the social workers, and the teachers was barred by Crawford, since they were agents of law enforcement at the time they acquired the information, and that the testimony of the relatives didn't satisfy the criteria for admission under Evid.R. 807, the broad "child sexual abuse" exception to the hearsay rule.  For whatever reason, the State chose to appeal only the ruling on the teachers.

That certainly wasn't a bad horse to ride.  One of the teachers had noticed that the child's eye was bloodshot, and that he had "welt marks" on his face.  He asked the boy what happened, and was given three different answers:  "I fell," "I don't know" and "Dee did it." She told another teacher, who took the child aside and also elicited the latter answer. 

My good buddy John Martin, head of the county PD's appellate division and appearing for 

Clark, had a ready argument for this:  since teachers were under a mandatory obligation to 

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report child abuse, they were de facto agents of law enforcement.  John always spends lots of time prepping for oral argument, but he could have spent years on this one and it wouldn't have prepared him for the reception he received from the justices (artist's depiction of oral argument at right).  There are legitimate arguments pro and con, but there's no point in discussing that, because the justices weren't buying.

So Martin beat a hurried retreat from the Crawford argument and took up 807 instead. 

EvidR 807 is the hearsay exception which covers child statements in abuse cases.  It provides that an out-of-court statement of a child in an abuse case is admissible if the child's testimony can't be obtained (as, for example, where the child's been declared incompetent), there's independent proof of the sex or violence, the prosecutor gives you notice of it, and the court finds that the statement's reasonably reliable.

Now, here's where things get funky.  The trial judge's admission of the relatives' testimony didn't present a Crawford issue, but the 8th District nonetheless reversed that, too, finding that the testimony didn't meet the reliability requirements for admission.  The State didn't appeal that.  If the Supreme Court reverses, finding that the statements don't violate Crawford, the case has to be remanded, at which point either the trial or the appellate court will be bound by the ruling that the statements to the relatives weren't reliable.  And if those aren't reliable, how are statements to the teachers made in the same time span?  The upshot, Martin argues:  the case gets reversed and remanded for trial, and the statements to the teachers still get excluded, this time under 807.

Of course, that invites the court to address the 807 issue, even though the State didn't raise it.  A high court can do pretty much anything it wants.  Older lawyers will remember that Mapp v. Ohio went up to the Supreme Court on the issue of private possession of obscenity, and the Court decided to use it to extend the 4th Amendment and the exclusionary rule to the states.

I doubt that'll happen here, though.  First, they won't address because the State didn't raise it.  If you rule on issues that weren't raised, you encourage litigants to be sloppy.  Plus, you have to decide the issue without any input from the parties; nobody briefed the issue, and the argument on it was minimal.

The second reason is that they might not like the answer they came up with.  Here's the simple issue:  the trial judge determined that the child was incompetent in November 2010; how could statements made to teachers, etc. seven months earlier be deemed reliable?  That's what the 8th District found, and it's an eminently reasonable position.  And other courts have ruled that a child must be competent for 807 statements to be admissible.

Which gets you into the numerous rulings that a child's excited utterances or statements for medical purposes aren't excluded, even if the child is incompetent.  You can make the argument that those are different because they don't require the additional "reliability" determination that 807, but that's just playing with words.  A child is deemed incompetent because the judge does not believe he's capable of communicating reliable information.  How can information he gave out before that be deemed reliable?  If you shouldn't put any credence in what he says at three years old, why should you put any credence in anything he said at two?  None of those cases on the other exceptions really tackle that question head-on. 

Martin was shooting for the court to dismiss the case as improvidently allowed, and I think that's hoping for too much; at the very least, they'll want to overrule the 8th District's conclusion that anyone with a mandatory reporting requirement becomes a government agent for Crawford purposes.  But I'd be surprised if they go beyond that.

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