United States v. Bordeaux, No. 04-1369, 2005 U.S. App. LEXIS 3728 (8th Cir., 2005). The Court of Appeals for the 8th Circuit held, inter alia, that 1) the government did not meet the standard for allowing a child witness to testify via two-way closed-circuit television (CCTV); 2) admitting a videotaped forensic interview of a child witness violated Appellant’s sixth amendment right to confrontation per Crawford v. Washington; 3) admitting hearsay from witnesses who testified about the child’s out-of-court statements was error; and 4) Appellant was not denied a fair trial because the trial court excluded certain evidence in the videotaped interview.
Appellant was convicted of aggravated sexual abuse. At trial, the child victim took the stand and answered some prosecution questions with a single word or head movement (including one about whether the Appellant had put his penis in her mouth). The prosecutor then asked that the child be allowed to testify via CCTV. Appellant objected. After speaking with the child in chambers, the judge found that the child was afraid of the defendant and testifying in front of a jury in the large courtroom and she was permitted to testify via CCTV and Appellant had a chance to cross-examine her. The trial court also admitted the videotaped forensic interview, as well as the testimony of three witnesses who testified to the child’s statements regarding the abuse. In the forensic interview the child indicated that Appellant had put his penis in her mouth. When asked whether anyone else had done bad things to her, she stated that her brother’s friend Luke (but did not say anything more).
Issues
1. Closed-circuit television: The Court discussed the US Supreme Court decision in Maryland v. Craig (holding that one-way CCTV satisfied the confrontation clause where specific findings were made), as well as the 18 USC § 3509 (which allows alternative procedures for child witnesses). The court rejected the government’s argument that this case was distinguishable from Craig because it involved two-way CCTV by noting that it had previously applied Craig to two-way CCTV cases. United States v. Turning Bear, 357 F.3d 739 (8th Cir. 2004). Furthermore, Turning Bear also found 18 USC § 3509 unconstitutional insofar as it sets forth a different standard from Craig regarding the finding of fear. Craig requires, inter alia, that the child witness be traumatized by the presence of the defendant, not by the courtroom generally.
The Eighth Circuit held that the district court’s findings did not satisfy the Craig standard because the trial court found that the child’s fear of the defendant was only one reason why she could not testify in open court; there was no finding that it was the dominant reason. Therefore, the government had not met the standard for allowing a child witness to testify via CCTV.
2. Videotaped forensic interview: The Court held that admitting the videotaped forensic interview of the child violated Appellant’s right to confrontation because the statements contained in the interview were testimonial and because the child did not appear at trial.
Crawford v. Washington, 124 S Ct 1354, 1369 (2004). Though the government maintained that the interviews were for purposes of medical treatment, the court analogized them to police interrogations (formal, involve governmental agents, have law enforcement purposes.) Moreover, the Court pointed to the fact that the child advocacy center made two copies – one for the medical file and one for law enforcement and that the prosecutor referred to the interview as a “forensic” interview, which by definition means related to the courts. Though there may be a medical purpose to the interviews, the Court noted, “Crawford does not indicate, and logic does not dictate, that multi-purpose statements cannot be testimonial.” United States v. Bordeaux, No. 04-1369, 2005 U.S. App. LEXIS 3728, at *15 (8th Cir., 2005).
Having ruled that the testimony via CCTV was improper, the court excluded this testimony from its Crawford analysis. Turning then to the child’s initial presence in the courtroom, the court promptly rejected, the idea that the child had “appeared” for confrontation purposes when she answered several of the prosecutor’s questions in open court.
3. Hearsay statements: The government offered three witnesses who testified to the child’s statements about the abuse. The statements were offered because they were “consistent with the declarant’s testimony and were offered to rebut an express or implied charge against the declarant of… improper influence.” Fed. R. Evid. 801(d)(1)(B). The Court rejected this argument because the rule requires that the declarant must be subject to cross-examination in order for it to apply.
4. Exclusion of certain videotape evidence: At trial, Appellant moved to offer the child’s statement about Luke under Fed. R. Evid. 412(b)(1)(C). This rule allows for the admission of past sexual behavior when the exclusion of “evidence would violate the constitutional rights of the defendant.” Fed. R. Evid. 412(b)(1)(C). The trial court denied that motion. On appeal, Appellant asserts that his constitutional right to a fair trial was violated. The Court of Appeals, however, noted that Fed. R. Evid. 412(b)(1)(C) is an exception to the general rule that past sexual behavior is inadmissible. Fed. R. Evid. 412(a)(1). The Court stated that insofar as one understands the victim’s statement about Luke to refer to sexual conduct, that alone merely triggers the protections provided for in Fed. R. Evid. 412(a)(1). The exclusion did not violate Appellant’s right to a fair trial because it was not arbitrary or disproportionate to the purpose it is designed to serve: to protect sexual assault victims from harassment or embarrassment. Moreover, the Court found that the probative value of the statement was minimal and the purpose for the exclusion was substantial.
