By Tom Harbinson1

Introduction

In Crawford v. Washington,2 the United States Supreme Court held that when an out-of-court statement of an unavailable witness is testimonial, the Sixth Amendment requires the accused be given a prior opportunity to cross-examine the witness.3 The Court stated it would “leave for another day any effort to spell out a comprehensive definition of testimonial. Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations….”4 The Court’s use of the term “testimonial” appears to be directed at statements taken by agents of the government when a reasonably objective person should know those statements are being taken for possible use in court.5

In Crawford, the Court acknowledges a Confrontation Clause exception to its new rule on the inadmissibility of testimonial statements of unavailable witnesses.6 As the Court explains, “the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation on essentially equitable grounds…”7 Crawford approvingly cites Reynolds v. United States,8 where the Court first applied the forfeiture-by-wrongdoing exception.9 The Reynolds Court held, “The Constitution does not guarantee an accused person against the legitimate consequences of his acts. It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege.”10 The exception is based on the maxim that no one should be permitted to take advantage of his own wrongdoing.11

Since Reynolds, the Supreme Court appears to have expanded the exception to allow admission of uncross-examined depositions not made under oath, if the witness was “absent from the trial by suggestion, procurement, or act of the accused,” Motes v. United States.12

Crawford’s approval of the forfeiture-by-wrongdoing exception should allow prosecutors to get a significant number of out-of-court statements of unavailable witnesses admitted. It is common in child abuse cases for the suspect to procure the child’s unavailability to testify whether by telling the child not to tell;13 by threatening the child,14 the family,15 or even pets;16 or procurement through use of others, such as family members.17 The abuser’s use of secrecy is intended to prevent the child from disclosing and testifying against the abuser.18

Testimonial Statements Are Admissible if the Accused Procures the Child’s Unavailability

Since Crawford does not give a comprehensive definition of “testimonial” statements, prosecutors should argue child abuse videotapes and out-of-court statements by children are not testimonial.19 Even if child abuse videotaped statements and other out-of-court statements are considered testimonial, these statements are admissible when the child’s unavailability occurs due to procurement by the accused. Courts have held procurement includes persuasion, the wrongful disclosure of information, control by the suspect, acquiescence in others performing acts of procurement, and asking others to persuade the witness not to testify.20

Prosecutors must use Motes’ language “…or act of the accused,” to argue for the forfeiture-by-wrongdoing exception to include as many acts as possible. The act that constitutes the procurement, by itself, need not be wrongful. Things the child could view as being beneficial, such as gifts or money, should constitute procurement if they result in the child being unavailable.21

Acts During the Crime Should be Used to Show Procurement

Although the United States Supreme Court has not ruled on whether the exception applies to procurement made during the crime, the rationale behind the rule supports doing so. The critical wrongdoing the exception attempts to prevent is not based on when the act occurs, but whether the act caused a witness to be unavailable. Thus, the question should be, was the accused’s act responsible for the witness being unavailable to testify?22

In a seminal decision, New Jersey v. Sheppard,23 a ten-year-old girl stated her stepfather told her, during the time sexual abuse was occurring, he would kill her if she told. Prosecutors moved for use of two-way television, because an examining psychiatrist said it would be too traumatic for the girl to be present with her stepfather in the courtroom and trauma would render her unavailable to testify.24

New Jersey v. Sheppard illustrates that acts of the accused during the crime should be allowed for purposes of determining whether procurement of unavailability occurred. If the accused’s acts are responsible for the child being in a condition where the child refuses to testify,25 states she cannot remember,26 or becomes non-responsive,27 the requirement of unavailability should be considered to be met. Non-verbal acts and threats may assist the accused in committing the crime, but are also used to traumatize the victim so the victim will not tell.28 The State should also be allowed to show, in a pre-trial hearing, it has made a good faith effort to have the witness testify, and should not be required to call the child at trial (or the pre-trial hearing) to show the child is unable to testify. 29

Procurement by Traumatization Should Result in Testimonial Statements Being Admissible

A common act of procurement is procurement of unavailability by trauma. It is widely accepted that children can have Post Traumatic Stress Disorder (PTSD), Acute Stress Disorder (ASD), or Traumatic Stress Disorder (TSD).30 Recently, the psychiatric community has become better at diagnosing PTSD or ASD in very young children and even infants.31 One study found 34 percent of abused children met criteria for PTSD.32 Talking to family members, caretakers, teachers, the child in pre-trial preparation, and perhaps referral to a child clinical psychologist may assist a prosecutor in determining if an accused’s acts of procurement caused trauma that renders a child unavailable to testify. One of the symptoms of PTSD and ASD is desperately and strenuously trying to avoid thoughts or reminders of the event or person that caused the condition.33 It is possible this condition, not simply the fact these children are young and have to face the defendant, may be responsible for some children “freezing’’ in the courtroom.34 Unlike the standard enunciated in Maryland v. Craig,35 where the trauma of seeing the accused makes the child unavailable, under this analysis it is the acts of the accused that constitute procurement by trauma that make the child unavailable.

Standard of Proof

What should the standard of proof be for determining procurement occurred? The United States Supreme Court has not ruled on this issue, but a majority of the federal circuit courts have applied the “by a preponderance of evidence standard.”36 Applying this standard carries out the purpose of the exception and parallels case law on the admissibility of other evidentiary statements.37

Conclusion

In light of Crawford, it is critical for prosecutors to learn to use the forfeiture-by-wrongdoing exception. Prosecutors must educate themselves, law enforcement, caretakers, teachers, medical care providers, and child protection workers on the importance of documenting or asking the child, in a forensically appropriate way, about acts or words that may show procurement. Effective prosecution is aggressively investigating and building the case, to make a strong record that will convince trial and appellate courts the accused has procured the child’s unavailability.

1 Senior Attorney, National Child Protection Training Center (at Winona State University, Winona MN).
2 2004 U.S. Lexis 1838 (March 8th, 2004)
3 Id.at 14.
4 Id.
5 See id. at 27-30.
6 See id. at 42.
7 Id.
8 484 U.S. 145 (1878).
9 Crawford at 42.
10 Reynolds at 158
11 Id. at 159.
12 178 U.S. 458, 471 (1900) (un-cross examined depositions not taken under oath would violate confrontation unless procurement occurred).
13 Jon R. Conte, ed., CRITICAL ISSUES IN CHILD SEXUAL ABUSE 118 (2002) (27% of child victims warned not to reveal abuse).
14 See e.g. State v. Bewley, 68 S.W.3d 613, 616 (Mo. 2002) (defendant told boy he would kill him if he refused to submit to sex or told anyone).
15 See e.g. State v. Naucke, 829 S.W. 2d 445, 448-449 (Mo. 1992) (four-year-old sodomy victim told she and her mother would be killed if she told about abuse).
16 See e.g. State v. Twist, 528 A.2d 1250, 1254-1255 (Me. 1987) (grandfather killed children’s cat by burning it in oven and told children he would shoot them if they told about sexual abuse).
17 See e.g. People v. Guce, 560 N.Y.S.2d 53, 56 (N.Y. App. 1990) (six- and eight-year-old sexual abuse victims told by mother they would be responsible for father’s incarceration and dissolution of family if they cooperated with prosecutor).
18 See e.g. People v. Brocklin, 687 N.E.2d 1119, 1120 (Ill. App. 3d 1997) (grandfather told four-year-old sodomy victim not to tell about their “secret”).
19 These statements should not be considered testimonial because they are not specifically prepared for court, and young children are unlikely to comprehend the interview could be used at trial or considered to be testimonial. See Victor I. Vieth, Keeping the Balance True: Admitting Child Hearsay in the Wake of Crawford v. Washington, UPDATE, Vol. 16 No. 12 (2004).
20 See Motes at 471 (persuasion); United States v. Aguiar, 975 F.2d 45, 47-48 (2nd Cir. 1992) (defendant threatened to expose witness’s criminal activity if witness testified); Steele v. Taylor, 684 F.2d 1193, 1199 (6th Cir. 1982) (witness under control of defendants who procured her refusal to testify) cert. denied, 460 U.S. 1053 (1983); United States v. Mastrangelo, 693 F. 2d 269, 273-274 (2nd Cir. 1982) (defendant knew witness would be murdered and did nothing to stop it); United States v. Belano, 618 F.2d 624, 629-630 (10th Cir. 1970) (threats by defendant communicated by bartenders to victim).
21 See e.g. State v. Henry, 820 A.2d 1076, 1078 (Conn. 2002) (defendant offered adult victim money if she would leave state).
22 See e.g. United States v. White, 838 F. Supp. 618, 621 (D.D.C. 1993), 116 F.3d 903 (U.S. App. D.C. 1997), cert. denied 522 U.S. 960 (1997). Actions of procurement can be “a pattern of conduct” even if no specific verbal threat is made. See Black v. Woods, 651 F.2d 528, 531 (8th Cir. 1981). A majority of federal circuit courts have not required a finding the accused acted with intent or purposefully to procure the witness’s absence. See John R. Kroger, The Confrontation Waiver Rule, 76 B.U.L. Rev. 835, 855-857 (1996).
23 484 A2d 1330 (N.J. Super. Ct. Law Div. 1984)
24 Id. at 415-418.
25 See State v. Yednock, 541 A.2d 887, 891 (Conn. 1988) (child “unavailable” when traumatized by testifying in front of defendant and refused to testify further).
26 See United States v. McHorse, 179 F.3d 889 (10th Cir. 1999) (when seven-year-old child sex abuse victim states she could not remember what defendant did, admission of her out-of-court statements does not violate confrontation as defendant had opportunity to cross examine)
27 See State v. Ross, 451 N.W.2d 231 (Minn. App. 1990) pet. for rev. denied (Minn. April 13, 1990), cert. denied 498 U.S. 837 (1990) (admission of out-of-court statements does not violate confrontation when child became non-responsive due to trauma of testifying in defendant’s presence).
28 See Richard D. Friedman, Confrontation and the Definition of Chutzpa, 31 ISRAEL L. REV. 506-535, 533 (1997) (where “child has been intimidated by either the abusive conduct itself or by a threatening statement—Don’t tell anyone!—that accompanied or followed the conduct….the forfeiture principle may be appropriate.”). Cases involving children could be considered to be a unique exception just as dying declarations possibly are. See Crawford at 33 n. 6 (if dying declarations must be accepted, it is sui generis).
29 See Barber v. Page, 390 U.S. 719, 724-25 (1968) (witness not unavailable until State makes good faith effort to obtain witness’s presence at trial). If pre-trial evidence shows the child will be unable to testify, that should be sufficient. See FEDERAL RULES OF EVID. 804 (a) (4) (if witness unable to testify due to mental illness witness is unavailable). See also Warren v. United States, 515 A.2d 208, 210 (D.C. App. 1986) (high likelihood of temporary, and possibility of permanent, psychological injury justified unavailability finding for adult rape victim).
30 See Brett T. Litz, EARLY INTERVENTION FOR TRAUMA AND TRAUMATIC LOSS, especially pages 1-65 and 112-146 (2004); Spencer Eth, ed., PTSD IN CHILDREN AND ADOLESCENTS (2001).
31 Michael S. Scheeringa and Theodore J. Gaensbauer, Post Traumatic Stress Disorder, in Charles H. Zeanah, Jr., ed., HANDBOOK OF INFANT MENTAL HEALTH, 2nd Ed., 369-381 (2000).
32 Peggy T. Ackerman, Joseph E.O. Newton, W. Brian McPherson, Jerry G. Jones and Roscoe A. Dykman, Prevalence of Post Traumatic Stress Disorder and other Psychiatric Diagnoses in Three Groups of Abused Children (Sexual, Physical, and Both), 22 CHILD ABUSE AND NEGLECT No. 8, 759-774, 771 (1998); see also J.N. Briere & D.M. Elliot, Immediate and Long Term Impacts of Child Sexual Abuse, 4 FUTURE OF CHILDREN, 54-69 (1994) (majority of child sexual abuse victims have some or many PTSD symptoms).
33 See Diagnostic and Statistical Manual of Mental Disorders-TR 309.81 (DSM-IV-TR) American Psychiatric Association (4th Ed. 2000) (PTSD diagnostic criteria include persistent avoidance of stimuli associated with persons or thoughts involved with the trauma); DSM-IV-TR 308.3, (ASD criteria include avoidance of stimuli that arouse recollections of the trauma such as thoughts or persons involved).
34 Some children may exhibit dissociative symptoms. Dissociation involves “particular alterations in phenomenal experience that are related to a disconnection or disengagement regarding the self and/or the environment.” Stephen J. Lyn and Judith W. Rhue, eds., DISSOCIATION: CLINICAL AND THEORETICAL PERSPECTIVES, 23 (1994). PTSD and ASD include dissociation as diagnostic criteria. See DSM-IV-TR 309.81 B (3) and 308.3 B (1) to (5).
35 497 U.S. 836, 857 (1990).
36 White v. United States, 116 F.3d 903, 911-913 (App. D.C. 1997) (most circuit courts adopted “preponderance” standard because higher standard would not deter misconduct).
37 Id.

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