evidence
CT persists with “tender years” bill despite Crawford
May 23rd
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
- the court finds, on the basis of the time, content and circumstances of the statement, there is a probability that the statement is trustworthy,
- 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
- 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.
Previous coverage:
Videotaped interrogations gets pilot program
Apr 21st
Connecticut is set to join several other states considering videotaping interrogations. Only four states thus far require it (AK, MN, ME and DC). The appropriations committee has set aside 100K a year for ’08 and ’09 to test it out. Videotaping of interrogations has become increasingly important what with the explosion of false confession claims over recent years.
“Electronic recording of interrogations will assure protections to the innocent,” said Amanda Melpolder, a policy advocate for the Innocence Project, which has helped exonerate 198 people since it was established in 1992.”Less than ideal interrogation procedures have contributed to or been the main factor in nearly one in five wrongful convictions of individuals later exonerated through DNA evidence,” Melpolder said. “In each of these cases, the true perpetrator remained at large. … The mandatory recording of interrogations is a reform whose time has come.”
Of course, not all agree, especially law enforcement. Their main concern is that it will “hinder the investigators’ interview techniques”. As opposed to ensuring there are no false confessions.
Public Safety Commissioner John A. Danaher III said in his testimony for a recent legislative hearing on the matter. “Defense attorneys may use the tape in an attempt to divert the focus of the jury’s attention in a criminal trial from the accused to criticism of an investigator’s interrogation techniques.”
Good job by the legislature and I hope the pilot program will convince them that this needs to become law in Connecticut.
Technorati Tags: connecticut, videotaped interrogations
“tender years” and Crawford
Apr 21st
Karl of CDW helpfully points out that there is a a big Constitutional roadblock to the tender years exception statutes: Crawford v. Washington, 541 U.S. 36 (2004) [pdf]. He directs me (and those interested) to State v. Snowden, [pdf] a Maryland case which is on point and oft-cited.
The statements that “tender years exceptions” typically seek to make admissible are testimonial in nature and made outside the presence of the defendant or defense counsel. This is clearly a Crawford violation. Crawford held generally that testimonial statements may not be admitted in evidence through non-declarant witnesses unless the declarant is unavailable and there is a prior opportunity for cross-examination. For the purposes of CT’s statute, testimonial means:
[3] “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.
In fact, Maryland’s tender years statute looked rather similar to that of Connecticut. Connecticut permits testimony by the victim outside the presence of the defendant, if the court finds that there is a compelling need to do so. This is not exactly on point, so I think the tender years statute should be rejected under Crawford.
The Confrontation Blog has mountains of coverage on post-Crawford decisions.
Previous coverage:
- Tender years exception to hearsay
- Tender years II
- Tender years III
- “Anti-Innocence” bills: Tender years IV
Technorati Tags: tender years, crawford, connecticut
“Anti-Innocence” bills: Tender years exception
Apr 20th
Scott Henson reports on a bill pending in the Texas “lege” that would allow hearsay evidence in sexual assault cases where the victim is 14 or younger. He writes:
I don’t get this – Texas has seen a rash of wrongful convictions uncovered, but rather than pass legislation that would reduce the number of innocent people convicted, these bills are essentially what I’ve called “anti-innocence” initiatives, proposals that make it more likely that flawed or biased testimony generates a wrongful conviction.
This bill invites false testimony that cannot be cross examined, and expands the use of hearsay testimony to imply intent regarding offenses that were never even committed.
As I’ve said before, these bills are very dangerous, but they seem to be gaining steam across the country.
Previous coverage:
Terrific eyewitness ID coverage
Apr 15th
Eyewitness ID blog has a few terrific posts up in the last week, which are must reads:
This blog should be a must read for those in the business.
Technorati Tags: eyewitness identification
Tender years exception and mandatory minimums proposed
Mar 29th
On today’s list of bills was S.B. 1458 (“An Act Concerning Jessica’s Law”). This bill has several new proposals, most important of which is the “tender years exception” [see previous coverage below]. According to the proposed bill,
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 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.
This provision applies to a statement of a child under the age of 13, not the testimony itself. The court has to find that the statement is trustworthy (fine), the proponent has to make known the intent to offer the statement (fine) at such a time that the opponent has the time to prepare to meet it (good) and either the child testifies (okay, a reluctant witness) or is unavailable (again, reluctant or otherwise) AND there is independent, non-testimonial admissible evidence of the alleged act. Uh. I’m not sure what that would be…but I’ll wait till the public hearing to form an opinion.
The other provisions of this bill create the offense of “aggravated sexual assault of a minor”, where the victim is under 13. It would carry a minimum mandatory sentence of 25 years. The other provisions create mandatory minimums of 2-10 years for a variety of sex offenses, including repeat offenders.
Previous coverage:
Tender Years II
Mar 7th
Doing a bit of research on the interweb, I came across this statement by the Chief State’s Attorney’s Office in CT, urging adoption of the tender years’ exception to hearsay. It claims that there are 39 other states in the country that have adopted this exception to hearsay.
How does it play out in your courtrooms? What are the most common examples of when this exception is invoked and how often is the testimony permitted. What are the specific requirements adopted by your various states?
Previous commentary:
“tender years” exception to hearsay
Mar 4th
The Connecticut Legislature is currently considering a bill that would allow a “tender years” exception to hearsay. The bill [S.B. 1245] would add the following section to the General Statutes:
Notwithstanding any other rule of evidence or provision of law, a statement by a child under sixteen years of age relating to an offense committed against that 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 admissible evidence of the alleged act. For purposes of this section, “child” includes a person who is chronologically sixteen years of age or older, but who has a mental or developmental age of less than sixteen years because of mental retardation or developmental disability.
Immediately this proposal should raise red flags. This does not require that the defense have an opportunity to cross-examine the “minor”. Also, what the heck does “there is a probability that the statement is trustworthy” mean?
Further, how do you define “fair opportunity to prepare to meet it”? Does that mean that the statement has to be disclosed in advance? That the full length and breadth of the “minor’s” testimony has to be made available to the defense beforehand? I doubt that’s what the legislature means.
Anyone else have any ideas on this or know of other states that have proposed this?
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