EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, April 2, 2008

Forfeit Victory, Take 3: Amicus Brief On Child Hearsay Filed In Giles Case

I have written a couple of posts about Giles v. California, the case that the Supreme Court will soon hear to resolve the issue of whether the forfeiture by wrongdoing doctrine contains an intent requirement.  Well, if the National Association of Counsel for Children and the American Professional Society on the Abuse of Children have their way, the Supreme Court will also conclude in Giles that the doctrine applies to cases in which defendants take advantage of predictably unavailable witnesses, which would apply in many child witness cases.

Irell & Manella and Jenner & Block have filed an amicus brief on behalf of these groups.  In Part I, the brief argues that the Supreme Court has long recognized modern exceptions to the Confrontation Clause based upon exceptions that existed at the time of the Framing.  It then notes that English courts frequently admitted unconfronted children's out-of-court reports of abuse based upon necessity and fairness with the reasoning being that the defendant's acts in these cases ensured that the natural and often only witness to the crime (e.g., the child victim) would be unavailable to testify.

Part II contends that despite this general rule, in the post-Crawford Confrontation Clause world, "trial courts routinely have barred testimonial hearsay from unavailable child witnesses."  The brief that supports this contention with cases from Kansas, Idaho, Colorado, Arkansas, Indiana, Oregon, Pennsylvania, Ohio, Mississippi, and Nevada where courts reversed convictions after determining that trial courts impermissibly admitted testimonial hearsay from unavailable child witnesses.  The brief finds these results troubling, noting that these rulings "enable individuals who commit crimes against or in the presence of children to benefit from young children's unavailability."

The brief thus argues that the equitable exception for unconfronted children's out-of-court reports of abuse should be used in cases such as the cases identified in Part II to obviate any Confrontation Clause concerns.  Part III notes, however, that simply resolving the Confrontation Clause issue does not mean that such statements are admissible under the rules of evidence and that children's statements must still be shown to be reliable.  The brief then argues that it is ironic that one of the conditions that can best establish the reliability of a child's out-of-court report -- the report being videotaped -- is one of the main conditions used to establish that a statement is testimonial and thus inadmissible under the Confrontation Clause.  The brief concludes, however, that because of the equitable Confrontation Clause exception at play, courts should find that the videotaping of children's out of court reports satisfies reliability concerns and does not violate the Confrontation Clause.

Giles is not a case involving a child's hearsay statements, so it is questionable whether the court will address the issue raised by the brief.  That said, the Supreme Court's Confrontation Clause opinions since Crawford have been so unpredictable that it would not surprise me in the least if it adopted the reasoning of the amicus brief.  At the least, though, I think that the brief sets out a compelling argument which the Supreme Court will have to consider strongly in this case or a future child hearsay case.    



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