A Trial Without Testimony
In a previous blog titled “Right To Confrontation is Sexual Abuse Cases“, we discussed how the Crawford case strengthened one’s right to confront his or her accuser during the criminal court process. Prior to this ruling, prosecutors relied upon the Roberts case to have out-of-court hearsay statements admitted at trial in lieu of live testimony, so therefore a defendant could be convicted without ever having an opportunity to have his or her lawyer cross examine the accuser.
Of course, in order for this to happen, the out-of-court statements first had to be admitted via a hearsay exception rule, such as Pennsylvania’s Tender Years Hearsay Act (42 Pa.C.S. § 5985.1). This particular hearsay exception allows out-of-court statements made by individuals 12 years of age or less to be entered into evidence under certain conditions. In order for the State to have such statements admitted into evidence in lieu of live testimony, the trial court had to find that a) the statements were relevant and reliable, and b) that the child was “unavailable” as a witness. If such determinations were made, the out-of-court statements were admitted into evidence and the defendant would go to trial without the opportunity to have his or lawyer cross examine the child witness.
Crawford Changes Things
Unfortunately at that time, a 6th amendment confrontation challenge would have failed because the Roberts case gave no protection against the above described method – as long as a court determined that the out-of-court statements had adequate “indicia of reliability”, and that the declarant was “unavailable”, a confrontation challenge would fail under Roberts. However in 2004, approximately 24 years after the Roberts case was decided, the Crawford decision overruled the Roberts decision and changed the landscape – the U.S. Supreme Court ruled that, regardless of a finding of adequate “indicia of reliability”, any out-of-court statement that is testimonial in nature is not admissible unless the defendant has had a full and fair opportunity to cross examine the declarant regarding these statements AND the declarant is unavailable as a witness. Therefore, even if the child witness (declarant) was deemed unavailable as a witness and his or her statements were deemed reliable, the statements could not be used at trial as a substitute for live testimony unless the defendant (defendant’s attorney) had a previous opportunity to cross examine the child witness.
Prosecutors Dismantle Crawford’s Protection
Since then, however, prosecutors have been finding ways to work around this prosecutorial “road block.” They focused in on the fact that the Crawford decision only grants confrontation rights in cases where the out-of-court statements are “testimonial” in nature. Therefore, if a court rules that the desired out-of-court statements are non-testimonial, the Crawford decision does not preclude these statements from being used at trial in lieu of live testimony. Unfortunately, the Crawford case gave little guidance as to how a statement should be analyzed to determine whether it is testimonial or non-testimonial.
Testimonial versus Non-Testimonial
Over the years, various courts have struggled to firmly define these words. In 2015 the U.S. Supreme Court (Ohio v. Clark, 135 S. Ct. 2173 (U.S. 2015)) summarized its prior analyses of testimonial versus non-testimonial, which were made in Davis v. Washington, 547 U.S. 813 (U.S. 2006) and Michigan v. Bryant, 562 U.S. 344 (U.S. 2011):
“We held that the statements in Hammon were testimonial, while the statements in Davis were not. Announcing what has come to be known as the “primary purpose” test, we explained: “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Because the cases involved statements to law enforcement officers, we reserved the question whether similar statements to individuals other than law enforcement officers would raise similar issues under the Confrontation Clause.
In Michigan v. Bryant, 562 U.S. 344, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011), we further expounded on the primary purpose test. The inquiry, we emphasized, must consider “all of the relevant circumstances.” And we reiterated our view in Davis that, when “the primary purpose of an interrogation is to respond to an ‘ongoing emergency,’ its purpose is not to create a record for trial and thus is not within the scope of the [Confrontation] Clause.” At the same time, we noted that “there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony.” “[T]he existence vel non of an ongoing emergency is not the touchstone of the testimonial inquiry.” Instead, “whether an ongoing emergency exists is simply one factor . . . that informs the ultimate inquiry regarding the ‘primary purpose’ of an interrogation.”
One additional factor is “the informality of the situation and the interrogation.” A “formal station-house interrogation,” like the questioning in Crawford, is more likely to provoke testimonial statements, while less formal questioning is less likely to reflect a primary purpose aimed at obtaining testimonial evidence against the accused. And in determining whether a statement is testimonial, “standard rules of hearsay, designed to identify some statements as reliable, will be relevant.” In the end, the question is whether, in light of all the circumstances, viewed objectively, the “primary purpose” of the conversation was to “creat[e] an out-of-court substitute for trial testimony.”
Of particular importance from the Bryant case is the following statement, which suggests that statements, while initially “non-testimoninal” in nature, can evolve into “testimomnial” statements as the scope of the questioning changes:
“a conversation which begins as an interrogation to determine the need for emergency assistance” may “evolve into testimonial statements.”
We also suggest reading the Pennsylvania Supreme Court’s decisions in In re N.C., 105 A.3d 1199 (Pa. 2014) and Commonwealth v. Allshouse, 614 Pa. 229 (Pa. 2012). For defense attorneys, it is critical to gain a thorough understanding of the above analyses. Undoubtedly, prosecutors will attempt to bypass defendants’ 6th amendment rights and convict using only non-testimonial out-of-court statements. They can legally accomplish this without violating the Crawford ruling; however, they still need to meet the requirements of the hearsay exception used to admit the statements into evidence. In Pennsylvania, the most commonly used exception is the Tender Year’s Hearsay Act (42 Pa.C.S. § 5985.1).
Pennsylvania’s Tender Years Hearsay Act (TYHA)
Pennsylvania’s Tender Year’s Hearsay Act (42 Pa.C.S. § 5985.1) is as follows:
(a) General rule. — An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing any of the offenses enumerated in 18 Pa.C.S. Chs. 25 (relating to criminal homicide), 27 (relating to assault), 29 (relating to kidnapping), 31 (relating to sexual offenses), 35 (relating to burglary and other criminal intrusion) and 37 (relating to robbery), not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if:
(1) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and
(2) the child either:
(i) testifies at the proceeding; or
(ii) is unavailable as a witness.
(a.1) Emotional distress. — In order to make a finding under subsection (a)(2)(ii) that the child is unavailable as a witness, the court must determine, based on evidence presented to it, that testimony by the child as a witness will result in the child suffering serious emotional distress that would substantially impair the child’s ability to reasonably communicate. In making this determination, the court may do all of the following:
(1) Observe and question the child, either inside or outside the courtroom.
(2) Hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child in a medical or therapeutic setting.
(a.2) Counsel and confrontation. — If the court hears testimony in connection with making a finding under subsection (a)(2)(ii), all of the following apply:
(1) Except as provided in paragraph (2), the defendant, the attorney for the defendant and the attorney for the Commonwealth or, in the case of a civil proceeding, the attorney for the plaintiff has the right to be present.
(2) If the court observes or questions the child, the court shall not permit the defendant to be present.
(b) Notice required. — A statement otherwise admissible under subsection (a) shall not be received into evidence unless the proponent of the statement notifies the adverse party of the proponent’s intention to offer the statement and the particulars of the statement sufficiently in advance of the proceeding at which the proponent intends to offer the statement into evidence to provide the adverse party with a fair opportunity to prepare to meet the statement.
Pennsylvania’s Tender Years Hearsay Act Combined with Dismantled Crawford
As previously mentioned, it the State wishes to admit out-of-court, non-testimonial statements made by a child in lieu of live testimony, it can do so without violating the defendant’s 6th amendment right to confrontation. However, the State must first meet the requirements of the hearsay exception, which for purposes of this discussion will be Pennsylvania’s Tender Year’s Hearsay Act. To meet the requirements, prosecutors must establish that a) the statements are relevant and reliable, and b) that the child witness is “unavailable” as a witness.
In order to find that the statements are relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability, the PA Superior Court in Commonwealth v. Walter, 625 Pa. 522 (Pa. 2014) stated:
“In determining whether out-of-court statements of a child contain “particularized guarantees of trustworthiness surrounding the circumstances under which the statements were uttered to the person who is testifying,” Delbridge, 855 A.2d at 45 [Attorney Tom Pavlinic’s case], and, therefore, are admissible under the TYHA, the focus is on the truthfulness of the statements, which is assessed by considering the spontaneity of the statements; the consistency in repetition; the mental state of the child; the use of terms unexpected in children of that age; and the lack of a motive to fabricate.”
It is important that attorneys understand that there is a clear legal distinction between competency and reliability, and therefore do not blend PA Rule 601 with 42 Pa.C.S. § 5985.1(a)(1) – the Court in Walter made clear that a child witness does not have to be declared competent to testify in order for his or her statement to meet the requirements 42 Pa.C.S. § 5985.1(a)(1):
“..we hold that a child need not be deemed competent to testify as a witness in order for the trial court to admit the child’s out-of-court statements into evidence pursuant to the TYHA. “
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