CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, January 6, 2010

Scallen on Confrontation of Children

Scallen_Eileen_07 Eileen A. Scallen  (William Mitchell College of Law) has posted Coping with Crawford: Confrontation of Children and Other Challenging Witnesses (William Mitchell Law Review, Vol. 35, No. 4, 2009) on SSRN. Here is the abstract:

In Crawford, Davis, and Hammon, the United States Supreme Court created a serious hurdle in prosecuting certain kinds of crimes, such as domestic violence, elder abuse, and child abuse. Part II of this article briefly describes the Crawford debacle, arguing that its “cure” was worse than the problem it addressed. However, there is no point belaboring the issue because, as the Court appears to be refining its analysis, it shows no sign of taking another dramatic turn in the near future. Consequently, Part III focuses on the most serious problem created under Crawford: the prosecution of crimes involving vulnerable witnesses, particularly crimes of domestic violence, elder abuse, and child abuse. Focusing on the pragmatics of coping with Crawford, this article suggests ways to overcome Crawford’s limitations on admissibility of evidence and ways to exclude evidence that is no longer protected by the Confrontation Clause after Crawford. Investigators and prosecutors spent years drafting policies and procedures to increase the reliability of statements taken from alleged victims of these crimes that were out of court or outside the presence of a criminal defendant. These investigation and interrogation techniques were developed to comply with existing Supreme Court case law and to increase the integrity of the criminal justice system. Today, however, the more structured and careful investigators and prosecutors are in collecting hearsay evidence, the more likely the courts will bar the use of the evidence under the Confrontation Clause, as interpreted in Crawford and its progeny.

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The contention that "investigators and prosecutors spent years drafting polices and procedures to increase the reliability of statments taken from alleged victims of these crimes that were out of court or outside the presnce of a criminal defendant."

The policies and procedures were crafted (craftily I might add) to keep the witness out of the courtroom and to put the cross examination out of the reach of the defendant. Abuses created by these zealots resulted in the conviction of many innocent parents. The news special on the SAFE program in Bakersfield, California bears witness.

If a person is not convinced by Scalia's comments in Crawford then one will not be convinced. If one cannot look one's own son in the eye, face to face, in open court, in front of the jury, and ask him: "Son did I really do these terrible things to you which you told that social worker that I did to you?" , then one is probably being tried in a fascist or communist state.

These techniques hardly contributed to the integrity of the judicial system.

The fact that clever social workers, prosecutors and well meaning but politically expedient legislators created these corrupt mechanisms of interrogation, suggestion, video taping, and hiding evidence is a travesty of justice. There is no doubt that these well meaning (some), clever yet politically expedient folks will refine ways to circumvent the Command of the Confrontation Clause.

Posted by: mpb | Jan 7, 2010 2:17:07 AM

If one can not see that a victimized son may have trouble saying "Yes Dad, you did." to his tormentor in open court then one is without a soul or a real-world foundation.

Posted by: Tony N. | Jan 13, 2010 2:50:30 PM

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