National District Attorneys Association



Volume 17, Number 5, 2004


Weathering the Storm after Crawford v. Washington
(Part 1 of 2)

By Allie Phillips1

In March 8, 2004, the United States Supreme Court issued its landmark decision in the case of Crawford v Washington2 and redirected the course of admissible hearsay in light of the Confrontation Clause.

Child Abuse Prosecutions:
Where do we go from here?

Like a shot heard around the nation, prosecutors from coast to coast reacted with confusion to the Crawford decision. Hearsay statements would no longer be subject to the traditional rules as set forth in federal and state rules of evidence; instead, a hearsay statement that is testimonial in nature will not be admitted unless the witness testifies and is subject to cross-examination. The United States Supreme Court, however, provided minimal guidance as to the definition of “testimonial.” As a result, prosecutors began to question whether firmly rooted hearsay exceptions were still a valid course of action, or whether case after case would be remanded for re-trial for violation of the Confrontation Clause. The following is an analysis of more than 250 decisions that interpret and attempt to provide guidance after the Crawford decision.

What is a testimonial statement?

In Crawford, testimonial statements were minimally defined as being “extrajudicial statements contained in formalized testimonial materials,” such as testimony from a preliminary hearing,3 before a grand jury,4 at a deposition,5 or at a former trial;6 statements made in an affidavit; confessions to police;7 and responses to police interrogations. If an out-of-court statement is taken by a government agent8 (police officer, prosecutor, child protective services worker employed by the state), the statement will be considered testimonial so long as the witness reasonably could expect that statement to be used at a later trial. In People v. Cage, 120 Cal. App. 4th 770 (2004), a 15-year-old victim made three separate statements regarding injuries he received from his mother. The Cage court held that a statement by the victim to a police officer at the police station was testimonial; however, a statement by the victim to the same police officer at the hospital was non-testimonial, “because the interview was not sufficiently analogous to a pretrial examination by a justice of the peace; among other things, the police had not yet focused on a crime or a suspect, there was no structured questioning, and the interview was informal and unrecorded.”

In determining whether a statement is testimonial or non-testimonial, courts are consistently applying the Crawford two-pronged analysis to otherwise admissible hearsay statements: (1) Was the statement made to a governmental agent (or in response to questioning by a governmental agent)? (2) Would the declarant expect his/her statement to later be used at trial? Courts have further expanded the definition of testimonial to include plea allocutions of co-defendants,9 confessions of non-testifying co-defendants,10 police questioning during a Terry stop,11 statements in response to a prosecutor’s questioning outside of the courtroom,12 and statements made by a victim to a court when seeking a protective order.13

On the other hand, these hearsay statements have been deemed non-testimonial thus far: (1) supervised release revocation proceedings since the right of confrontation is not afforded in those hearings;14 (2) casual statements made to an acquaintance or family member;15 (3) co-conspirator statements made in furtherance of the conspiracy;16 (4) brief, informal remarks to an officer who is conducting a field investigation;17 (5) dying declarations; and (6) business records.18

Child Forensic Interviews

First, forensic interviews are not conducted primarily for the purpose of criminal prosecution.19 Nonetheless, several courts have labeled child forensic interviews as testimonial, thus requiring the child to testify at trial in order to later admit hearsay statements or statements made during the forensic interview. In Snowden v. State, 156 Md. App. 139; 846 A.2d 36 (2004), the Maryland Court of Appeals ruled that statements made by three child victims, during videotaped forensic interviews by a trained child protective services worker, were testimonial in nature because “[t]he children were interviewed for the expressed purpose of developing their testimony by” the CPS worker for purposes of the child sexual abuse case. The Attorney General’s office has appealed the Snowden decision. Other courts have similarly held that forensic interviews of children conducted by governmental agents (police officers or child protection service workers) are testimonial in nature.20

In contrast, in an unpublished decision by the Michigan Court of Appeals,21 the Court held that when the child victim was taken to a child advocacy center for purposes of a forensic interview and assessment and made a disclosure to the interviewer regarding sexual abuse, this was non-testimonial.

In State v. Courtney, 682 N.W.2d 185, 2004 Minn. App. LEXIS 768 (Minn. Ct. of Ap. 2004), the court addressed how a forensic interview of a child was done for developing a criminal case. Courtney involved statements of a domestic violence victim taken by a police officer, and statements of the victim’s six-year-old child who witnessed the assault and was interviewed by a child protective services worker trained in conducting forensic interviews. At trial, the victim of the assault recanted her original statements and testified for the defendant. The prosecutor was permitted to introduce her inconsistent statements to the police officer at trial, and this did not violate Crawford since the victim testified at trial and was subject to cross-examination. However, the statements made in the forensic interview by the six-year-old witness were improperly admitted at trial and violated Crawford because the child did not testify at trial. “A child-protection worker, along with a law enforcement officer, interviewed [the child] for the purpose of developing the case against Courtney. The same police officer that questioned [the victim], observed [the child’s] interview via T.V. satellite. At one point, the interview was stopped by the police officer when he directed the child-protection worker to ask [the child] to draw the guns she saw Courtney allegedly use to threaten [the victim]. The circumstances under which the interview was conducted show it was made in preparation for the case against Courtney.”

Thus, if a child victim testifies and is subject to cross-examination, statements from the forensic interview (via videotaped interview or testimony from the interviewer), as well as other admissible hearsay statements, may be admitted into evidence upon proper admission.23

Second, young children are unlikely to comprehend that a forensic interview may be used at trial. Professionals who interview young children recognize that a young child is unlikely to understand that statements made at a forensic interview may later be used at trial. However, in People v. Vigil, 2004 Colo. App. LEXIS 1024 (2004), a police officer with significant training in forensic interviewing of children interviewed a seven-year-old boy regarding possible sexual abuse. The officer informed the child that she was a police officer, went through a truth-lie scenario with the child, and ultimately asked the boy what he wanted to happen to the defendant. The child was subsequently found incompetent and did not testify at trial; however, the police officer testified and played a portion of the videotaped forensic interview. On appeal, the Court held that statements made during the forensic interview were testimonial and could not be admitted without the child’s testimony: “During the interview, the police officer asked the child what should happen to defendant, and the child replied that defendant should go to jail. The officer then told the child that he would need to talk to ‘a friend’ of hers who worked for the district attorney and who was going to try to put defendant ‘in jail for a long long time.’ This discussion, together with the interviewer’s emphasis at the outset regarding the need to be truthful, would indicate to an objective person in the child’s position that the statements were intended for use at a later proceeding that would lead to punishment of defendant.”

Forensic interviewers should be aware that courts may look to the status of the interviewer (whether the interviewer is employed by the state or by a private agency), and whether anything occurring in the interview could lead the child to believe that statements made would later be used at trial. To avoid the issues addressed in the Virgil case, APRI's Finding Words program trains child abuse professionals in the RATAC forensic interviewing protocol developed by CornerHouse.24 First, Finding Words teaches avoidance of a truth/lie scenario in a forensic interview since this unnecessarily incorporates the test for taking an oath into the process. Second, Finding Words teaches to never ask a child what should happen to the abuser or parent since this aspect is not relevant to the forensic interview phase. And third, Finding Words teaches child abuse professionals the “child first” doctrine, which advocates that a forensic interview is not about gaining evidence for court, but rather is done for the child; that a forensic interview is not about proving sexual abuse, but rather to learn if something has happened to the child; and that a forensic interview is conducted to help the whole child, including determining whether medical and therapeutic treatment is necessary, and determining safety issues for placement of the child. Following the RATAC protocol, or a similar protocol, will help child abuse professionals avoid the pitfalls discussed in the Vigil case.

Child’s Lack of Memory at Trial

Several courts have ruled that when a child victim testifies at trial, but has poor memory of prior statements made to police officers or forensic interviewers, there is no Crawford or Confrontation Clause issue. Provided that the child takes the witness stand and is subject to cross-examination, the child’s lack of memory regarding their prior statements does not bar the admission of those hearsay statements (including statements made during a forensic interview).

In People v Phan, 2004 Cal. App. Unpub. LEXIS 5047 (Cal. 2004), a child victim testified at trial, but had poor recollection concerning statements she made to an investigating police officer. The police officer testified at trial concerning the interview with the child. In a Crawford analysis, the court found Crawford was satisfied with the police officer’s testimony regarding the child’s statements because the victim testified and was subject to cross-examination. The fact that the victim had poor memory and was not able to be fully cross-examined did not require reversal. Similarly, in People v. Warner, 199 Cal. App. 4th 331 (Cal. App. 3d Dist. 2004), a three-year-old victim stated in a forensic interview that the touching by her dad happened lots of times. The child’s mother subsequently telephoned the defendant (her husband) and he admitted to touching the child. In an interrogation with a detective, the defendant admitted to touching his child three times. At trial one year later, the child did not recall the forensic interview and only admitted to one touching on the witness stand. The prosecutor moved to admit the defendant’s confession as to three touches and argued there was a sufficient corpus to admit the statement of the defendant. The court found that since the victim testified at trial and was subject to cross-examination, in spite of her lack of memory, the defendant’s statement could come in as there was sufficient corpus established. Therefore, as long as the child testifies and is subject to cross-examination, a lack of memory by the child as to the entire disclosure of abuse will not bar the introduction of those otherwise admissible hearsay statements.


To avoid many of the pitfalls discussed in the post-Crawford cases cited in this article, child abuse professionals and prosecutors should properly prepare children to testify in court and utilize a forensic interview protocol that emphasizes the child first doctrine. Doing so may help alleviate legal issues that have caused many cases to be reversed on appeal as a result of Crawford.


1 Allie Phillips is a Senior Attorney with APRI’s National Center for Prosecution of Child Abuse in Alexandria, Virginia and also the National Child Protection Training Center in Winona, Minnesota.

158 L Ed 2d 177; 124 S Ct 1354 (2004).

State v. Young, 87 P.3d 308 (Kansas 2004); People v Stewart, 2004 Mich. App. LEXIS 2110 (2004).

People v. Patterson, 808 N.E.2d 1159, 2004 Ill. App. LEXIS 468 (2004).

Liggins v. Graves, 2004 U.S. Dist. LEXIS 4889 (S.D. Iowa 2004).

United States v. Avants, 367 F.3d 433 (5th Cir. Mass. 2004).

State v. Pullen, 594 S.E.2d 248 (N.C. Ct. App. 2004); State v. Cutlip, 2004 Ohio 2120; Brooks v. State, 132 S.W.3d 702 (Tex. App. 2004)

United States v. Mikos, 2004 U.S. Dist. LEXIS 13650 (N.D. Ill. 2004).

United States v. Massino, 2004 U.S. Dist. LEXIS 9733 (EDNY 2004); People v. Woods, 779 N.Y.S.2d 494 (2004); People v. Carrieri, 3 Misc. 3d 870, 778 N.Y.S.2d 854, 2004 N.Y. Misc. LEXIS 418 (2004).

United States v. Vogel, 2004-1 Trade Cas. (CCH) P74, 362 (USDC Ind. 2004); Roy v. Coplan, 2004 DNH 56, 2004 U.S. Dist. LEXIS 4892 (D.N.H. 2004); US v. Jones, 371 F.3d 363, 2004 U.S. App. LEXIS 11314 (7th Cir. Ind. 2004).

Hiibel v. Sixth Judicial Dist. Court, 124 S.Ct. 2451 (2004).

United States v. Saner, 313 F. Supp. 2d 896, 2004 U.S. Dist. LEXIS 6293, 2004-1 Trade Cas. (CCH) P74362 (S.D. Ind. 2004).

People v. Thompson, 2004 Ill. App. LEXIS 740 (Ill. App. Ct. 2004).

United States v. Barazza, 318 F. Supp. 2d 1031, 2004 U.S. Dist. LEXIS 9732 (SD Cal 2004).

United States v. Manfre, 368 F.3d 832, 2004 U.S. App. LEXIS 9162 (8th Cir Ark 2004); People v. Cervantes, 118 Cal. App. 4th 162, 12 Cal. Rptr. 3d 774 (Cal. App. 2d Dist. 2004).

United States v. Reyes, 362 F.3d 536 (8th Cir 2004); United States v. Robinson, 367 F.3d 278 (5th Cir Tex. 2004); United States v. Cozzo, 2004 U.S. Dist. LEXIS 7391 (7th Cir, N.D. Ill 2004); Llaca v. Duncan, 2004 U.S. Dist. LEXIS 7916 (S.D.N.Y. 2004).

People v. Newland, 775 N.Y.S.2d 308 (2004).

Smith v. State, 2004 Ala. Crim. App. LEXIS 93 (Ala Crim App 2004).

Vieth, Victor I., Keeping the Balance True: Admitting Child Hearsay in the Wake of Crawford v. Washington, Update Volume 16, Number 12 (2004).

People ex rel. R.A.S., 2004 Colo. App. LEXIS 1032 (2004).

People v. Geno, 261 Mich. App. 624, 2004 Mich. App. LEXIS 1067

Somervell v. State, 29 Fla. L. Weekly D 1739 (Fla. Dist. Ct. App. 5th Dist 2004); State v. McClanahan, 2004 Wash. App. LEXIS 597 (2004).

The RATAC protocol was developed by CornerHouse Interagency Child Abuse Evaluation and Training Center in Minneapolis, Minnesota