Statements given to police and/or child protection workers have been the subject of a number of cases post-Crawford. In Crawford, the Supreme Court noted that statements to police officers during the course of interrogations "fall squarely" in the category of testimonial statements. 541 U.S. at 52-53. The Court also noted it used the term "interrogation" in a colloquial rather than a technical, legal sense. 541 U.S. at 53 n.4. Thus, a witness' recorded statement knowingly given in response to structured police questioning is "undeniably testimonial."The COA also rejected the state's fall-back position that Mr. Henderson forfeited his Confrontation right:
State and federal courts have held that interviews of purported child abuse victims conducted by child protection agencies in conjunction with law enforcement officials are testimonial under Crawford. See People v. Sisavath, 118 Cal. App. 4th at 1402 (child's statement to forensic interviewer held to be testimonial); Contreras v. State, 910 So. 2d 901 (Fla. App. 2005) (videotaped statement to child protection team testimonial); In re T.T., 351 Ill. App. 3d 976, 990, 815 N.E.2d 789 (DCFS process of investigating child sex abuse allegations sufficiently conducted with an eye toward prosecution renders 7-year-old's statement testimonial).
I expect that, given the current flux in Confrontation Clause litigation, we will probably be revisiting these issues in the upcoming year.
Causation between the action of the defendant and the witness' absence appears key. As noted by the Supreme Judicial Court of Massachusetts:
"[T]he causal link necessary between a defendant's actions and a witness's unavailability may be established where (1) a defendant puts forward to a witness the idea to avoid testifying, either by threats, coercion, persuasion, or pressure; (2) a defendant physically prevents a witness from testifying; or (3) a defendant actively facilitates the carrying out of the witness's independent intent not to testify." Commonwealth v. Edwards, 444 Mass. 526, 541, 830 N.E.2d 158 (2005). Other than the murder of the declarant, the causative factor has consistently been some act independent of the crime charged. For example, in forfeiture cases involving threats or coercion, the threats or coercion occurred after the events giving rise to the criminal charges. See, e.g., United States v. Montague, 421 F.3d 1099, 1101 (10th Cir. 2005) (wife's statements to police could be used at trial when husband/defendant violated no contact order and met with wife several times prior to trial); Steele v. Taylor, 684 F.2d 1193, 1199 (6th Cir. 1982), cert. denied 460 U.S. 1053 (1983) (witness was under the control of the defendants who had procured her refusal to testify); Commonwealth v. Edwards, 444 Mass. 526 (defendant's action prior to trial in influencing or colluding with witness to avoid testimony was enough to forfeit confrontation rights).
In our case there is no evidence of any acts by Henderson after the alleged assault. The State cites no case to us where the doctrine of forfeiture has been applied solely due to declarant's age. To accept the State's argument would severely limit the rights granted by the Sixth Amendment to the United States Constitution. It would open an exception to a constitutionally granted right that we are not prepared to adopt.
By the way, Sarah Johnson has noted that there is an entirely statutory objection to videotape testimony being admitted when the child witness is "not available." K.S.A. 22-3433 and 22-3434 provide the criteria and procedure for use of videotape of child witness statements. K.S.A. 22-3433(a)(9) requires, among other criteria that "the child is available to testify." If the district court finds that the child is not available to testify, videotape cannot be used under the statute. K.S.A. 22-3433 also makes admissibility turn on a finding that "the statement is not made in response to questioning calculated to lead the child to make a particular statement or is clearly shown to be the child's statement and not made solely as a result of a leading or suggestive question." This opens the door for a motion in limine on questioning technique, for which practitioners probably always need some expert help.
[Update: The state filed a petition for review on April 7, 2006. Mr. Henderson filed a cross petition for review on April 10, 2006].
[Further update: The KSC granted the state's petition for review and Mr. Henderson's cross petition for review on September 19, 2006. This case will likely be argued in December 2006 or January 2007].
[Further update: The KSC agreed with the COA on June 22, 2007 affirming the COA decision. Here is the case. Here is my blog entry on the case.]