CT persists with “tender years” bill despite Crawford

The Connecticut legislature is set to vote on a “tender years” exception statute. In spite of the obvious Constitutional hurdle of Crawford, the sponsors of the bill are pressing ahead. This is the text of the proposed statute:

Sec. 9. (NEW) (Effective July 1, 2007) Notwithstanding any other rule of evidence or provision of law, a statement by a child under thirteen years of age relating to a sexual offense committed against that child, or an offense involving physical abuse committed against that child by a person or persons who had authority or apparent authority over the child, shall be admissible in a criminal, juvenile or civil proceeding if

  1. the court finds, on the basis of the time, content and circumstances of the statement, there is a probability that the statement is trustworthy,
  2. the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it, and
  3. either (A) the child testifies at the proceeding, or (B) the child is unavailable as a witness and there is independent nontestimonial admissible evidence of the alleged act.

For the purposes of this section, “child” includes a person who is chronologically thirteen years of age or older, but who has a mental or developmental age of less than thirteen years because of mental retardation or developmental disability.

I have highlighted the problematic portions of the statute. Firstly, what is “apparent authority”? Does a simple command such as: “Come here” constitute “apparent authority”? Does kidnapping constitute “apparent authority”?

Secondly, it only allows to “provide the adverse party with a fair opportunity to prepare to meet it”. It does not require that the opponent of the statement have the opportunity to cross-examine the declarant at the time the statement was given, as required by Crawford.

Finally, what does the legislature mean by “independent nontestimonial admissible evidence”? Does a statement by the victim to her mother count?

It seems that there is a general belief that children under an arbitrarily chosen age are more prone to truthful statements. I am unsure of the veracity of this belief and whether it is supported by empirical evidence. Furthermore, as practitioners will attest, children are susceptible to suggestion – suggestion that is more often than not planted by a parent or someone in a position of authority (or apparent authority ;)).

Hopefully the legislature will take note of Crawford and realize that the statute as written is problematic.

Here [pdf] is the written testimony of the Connecticut Criminal Defense Lawyers’ Association in opposition to this statute.

Here [pdf] is the written testimony of the Chief State’s Attorneys’ Office, which seeks to clarify the difference between testimonial and non-testimonial statements.

Here [pdf] is a general statement in opposition by the Chief Public Defender’s Office.

Here [pdf] is a statement by the Judicial Branch asking that the legislature not move forward with this bill, since the issues are currently being considered by the Code of Evidence Oversight Committee.

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