Thursday, May 7, 2015

Hearsay and Confrontation: Recorded Victim Statements in the US and UK



A recent case in England epitomizes the difference between our bill-of-rights-based criminal justice system and the UK’s more practical, parliamentary and judge-based process.


Last week, Masood Mansouri was convicted of rape. Mansouri, a carwash owner, apparently pretending to be a cab driver, picked up Ceri Linden, who was hailing a taxi, kidnapped her and raped her. Five days later, she committed suicide. She thus was unavailable to testify at trial. Instead, the jury watched a videotaped recording of an interview Ms. Linden gave to the police in which she described the assault. No rape case has ever been successfully prosecuted in England and Wales based on statements of a victim who is not subject to cross-examination.


Interestingly, of course, this kind of evidence would not be admissible in the United States -- and for a host of reasons. Aside from the fact that it is hearsay for which there is no exception, it would not be admissible under the residual clause. According to the testimony of a consultant forensic psychologist, Ms. Linden had an “emotionally unstable personality disorder,” and had been hospitalized nine times over six months for attempted suicides. My guess is that these circumstances would have made it inadmissibly unreliable. Nor would it be admissible under 'forfeiture by wrongdoing,' exception, because the defendant did not intentionally cause her to be absent.  Last but manifestly not least, the videotape clearly is a testimonial equivalent whose admission violates the confrontation clause under the Supreme Court’s Crawford v. Washington jurisprudence.


The stark inadmissibility of the video under US law raises interesting, recurring questions. While this conviction could be overturned either by UK domestic courts or the European Court of Human Rights, it’s a good reminder about the protections of the bill of rights and the limitations on US judges.   


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