Child's statements testimonial

Roger Falk and Christopher Hughes won in State v. Henderson, No. 92,251 (Kan. June 22, 2007), reversing a Sedgwick County agg indecent liberties conviction on Confrontation Clause grounds. The KSC reviewed lots of other jurisdictions' cases to determine that where a child's statements are taken in part for the purpose of a criminal investigation, they are testimonial and subject to confrontation. The KSC took a rather detailed factual approach and determined that because of the involvement of law enforcement officers and the manner of investigation, the statements were testimonial:

While a focus on Henderson does not itself conclusively prove that the primary purpose of the interview was to establish or prove past events potentially relevant to a later criminal prosecution of him, it is certainly a factor to consider in making that determination. At a minimum, the focus on Henderson dilutes the State's arguments. We also consider that, among other things, F.J.I. was being asked to recount past episodes of criminal activity involving Henderson. Davis v. Washington, ___ U.S. ___, 165 L. Ed. 2d 224, 126 S. Ct. 2266 (2006), held that Crawford's and Hammond's "statements deliberately recounted, in response to police questioning, how potentially criminal past events began and progressed. And both took place some time after the events described were over. Such statements under official interrogation are an obvious substitute for live testimony because they do precisely what a witness does on direct examination; they are inherently testimonial." 165 L. Ed. 2d at 242.

This focus on Henderson, specifically with an eye toward prosecuting him, is corroborated by events after the interview. Cherney attempted to reach Henderson but was unsuccessful for 8 months. During that time, neither he nor Chandler attempted to interview anyone else or locate other possible perpetrators, whether pursuing the information given by Mother's interview or otherwise. Indeed, before even interviewing Henderson, Cherney prepared and signed his affidavit that asserted he had probable cause to believe Henderson committed the offense.

In addition to the facts we have already outlined as comprising part of our testimonial analysis, we also consider that Cherney and Chandler are government employees. While Chandler, the main interviewer, was an SRS employee, she could be considered an agent of law enforcement.

Also importantly, the KSC rejected the state's attempt to sort of have autghomatic invocation of the "forfeiture by wrongdoing" doctrine in molestation cases:

the Court of Appeals stated: "The State cites no case to us where the doctrine of forfeiture has been applied solely due to the declarant's age." The State asserts, however, that the absence of case law should not lead to a contrary result because "[t]he same equitable factors underlying the use of the doctrine in murder cases is present in this case and other cases involving helpless victims with limited communication skills." We agree with the Court of Appeals. The State's argument would severely undercut the constitutional rights provided by the Confrontation Clause.

There is a lot of Confrontation Clause litigation and these are just a couple of many issues that are percolating after Crawford. Don't forget to preserve these issues.