Category Archives: Cross Examination

Confrontation Clause and Child Abuse Interviews

In recent years, the US Supreme Court has issued a series of opinions that interpret the Sixth Amendment’s “confrontation clause” in a way that prevents prosecutors from offering many hearsay statements into evidence. If a defendant has no opportunity to cross examine the person who made the statement and the statement is “testimonial” (generally meaning that it is elicited by the police in the course of investigating a crime), then the statement is not admissible as evidence at trial.

In the recent case of US v. DeLeon, decided by the federal Sixth Circuit Court of Appeals, statements made by an 8 year old child to a social worker were held to be NOT testimonial and therefore admissible in evidence. This is potentially important because many judges have struggled to find a way of allowing hearsay when the circumstances warrant.

What happened is that a father was charged with murdering his stepson. Sometime prior to his death, a social worker, at the behest of a teacher, talked to the child about bruises that the teacher had noticed on his body. The social worker testified at the murder trial to what the murdered boy had told her. The Court said this this was proper, since the social worker was trying to formulate a treatment plan rather than investigate a crime. Also, there was no police investigation of the defendant’s behavior at the time the social worker spoke to the boy.

Most of the time prosecutors have been losing these confrontation clause arguments. This time, the prosecutor won.

A Dummy Cross Examination

Courtrooms are often sites for memorable “theater.” For example, can anyone who watched the mid-1990’s murder trial of OJ Simpson ever forget his conveniently unsuccessful struggle to put on the glove that the police found at the murder scene? The prosecution’s failed experiment gave rise to defense lawyer Johnnie Cochran’s famous catch-phrase summary, “If the glove don’t fit you must acquit.”

More recently, a creative California prosecutor tried to use a mannequin to help prove that a defendant had committed a gruesome murder. Testifying at trial, the defendant admitted to strangling his male lover-victim to death. But the defendant tried to lessen his punishment by testifying that he did so in the heat of sudden passion. If the jury accepted this defense, the defendant could have been convicted only of voluntary manslaughter, a far less serious crime than first degree murder. Trying to undermine the “heat of passion” claim, the prosecutor told the defendant to pretend that the prosecutor was the victim and to show the jury how the strangulation took place. (Even in open court this was a brave experiment. After all, the defendant had admitted to one strangulation already!)

The defense lawyer objected, but said that it might be OK if the prosecutor used a mannequin. The judge declared a recess, telling the prosecutor to “go find yourself a dummy.” The prosecutor returned to court with a female dummy. The dummy (not the prosecutor) was “wearing a blue dress, a pink ribbon and a hat.” The defense attorney again objected, pointing out that the female mannequin did not resemble the male victim.

Then matter got even more bizarre. The judge ordered the defense attorney to disrobe the mannequin. The defense lawyer did so reluctantly, stating that “I still object, but that’s better.” Responding to the prosecutor’s (and the judge’s) directions on cross examination, the defendant then spent considerable time using his hands and a strap that the prosecutor found in a trash can to strangle the helpless naked female dummy.

How any of this helped to prove that the defendant had committed an intentional murder was not apparent to three judges on the California Court of Appeal. The judges opined that the re-enactment was “suggestive of a slapstick parody,” “inflammatory,” and an “absurd, indecorous courtroom spectacle.” But they decided that while the trial judge never should have allowed the re-enactment, the defendant was so obviously guilty as charged that they unanimously allowed the defendant’s conviction of first degree murder to stand. The case is People v. Rivera, 133 Cal. Rptr.3d 721 (2011)

The bottom line: “Go get yourself a dummy” is probably not a catch-phrase that this prosecutor will ever want to hear again!

Illinois v. Williams- The Supreme Court Confronts the Confrontation Clause Yet Again

In the Crawford case (2004), the US Supreme Court decided that prosecutors cannot offer testimonial hearsay statements into evidence against defendants who have not had a chance to cross examine the people who made the statements. Subsequent applications of Crawford have been controversial, especially when in the Melendez-Diaz (2009) and Bullcoming (2011) cases the Court decided that reports of tests run by police crime lab analysts are testimonial and therefore inadmissible at trial unless the analysts testify personally. States feel that the decisions will severely undermine their ability to prosecute drug offenders and others whose guilt rests on the results of crime lab testing. Most crime labs are severely under-staffed, so to the extent that analysts have to wait around courthouses waiting to testify, they aren’t available to do their lab work.

The case of Williams v Illinois offers the Court another opportunity to determine the scope of the testimonial concept. In this case, a prosecution expert witness relied on a report prepared by a non-testifying laboratory analyst as a basis for the expert’s opinion that the defendant’s DNA closely matched the DNA found at the scene of a violent sexual assault. The State argues that since the report was not offered into evidence, but rather served only as a basis for the expert’s opinion, the report is not testimonial. The Court will probably decide the case in the first half of 2012. The precise outcome is probably less important than the attitudes towards the concept of testimonial hearsay that the justices express. Prosecutors and defense attorneys will parse their attitudes carefully, looking for hints about the outcomes of future cases.

Form Over Substance Abuse

In Bullcoming v. New Mexico (June 2011) the U.S. Supreme Court continued to use the Confrontation Clause as a hammer to make life miserable for prosecutors and forensic lab technicians.  The Court decided (by a 5-4 margin) that a lab report indicating a driver’s blood alcohol content was inadmissible in evidence because the technician who prepared the report did not testify at trial.  The prosecutor did call a lab technician to explain lab testing procedures, and the defense had a chance to cross examine the technician.  But that wasn’t good enough for Confrontation Clause purposes because the testifying techie knew nothing about Bullcoming’s specific test.

The justices who uphold defendants’ Confrontation Clause challenges to routine lab reports insist that they are not burdening the states.  But statistics suggest otherwise.  New Mexico has ten lab techs for the entire state, and apparently they are run ragged trying to respond to subpoenas while trying to run the tests they are hired to perform.  California sent in a brief summarizing the huge burdens and costs that the Confrontation Clause decisions prior to Bullcoming have created.  And all over reports that are machine-generated and virtually always correct.  (Bullcoming could have asked to have his sample retrested, but he didn’t.)

As the 4 dissenters in Bullcoming warned, the Court’s Confrontation Clause Cabal might do more damage yet.  Probably 2-4 people contribute to most lab reports if you include the clerks who check lab specimens in and out.  If they all have to testify, the Confontation Clause will become All-Powerful.