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Child Observers and Bryant ? a GVR

By Richard D. Friedman

This morning, the Supreme Court GVRed ? granted, vacated, and remanded ? the case of Allshouse v. Pennsylvania, No. 09-1396, for reconsideration in light of last week's decision in Michigan v. Bryant. Allshouse involves statements by a four-year-old to a child protection agency worker investigating allegations of abuse. The petition was brought by Jeff Fisher; an amicus brief in support of it was filed by the National Association of Criminal Defense Lawyers. Interestingly, Pennsylvania acknowledged in its Brief in Opposition that the case was worthy of certiorari ? so the very short reply brief in support of the petition argued that cert should be granted immediately rather than after the decision in Bryant. But not surprisingly, the Court held the case pending Bryant, and now it has signaled, wisely I think, that before stepping into the very difficult area of children's statements it wants to see how Bryant plays out in the lower courts.

A few reactions:

First, the GVR is one more indication that the impact of Bryant may be less dramatic than some observers have thought. If the Court thought it was obvious given Bryant that, as the Pennsylvania Supreme Court held, the statements were not testimonial, then it could simply have denied cert. Also, if it thought that Bullcoming might have any bearing on the outcome of this case ? say, by narrowing the meaning of "testimonial" ? it could have just held this case pending its decision in Bullcoming.

Second, statements by children are one of the few contexts in which taking a questioner's perspective into account makes it more likely that a court will deem the statement to be testimonial; the child presumably does not know the legal consequences of the statement, but the questioner certainly does.

Third, having said that, I suppose that the greater number of lower courts, and perhaps eventually the Supreme Court, will hold statements of this sort to be non-testimonial, on the grounds that the child did not anticipate prosecutorial use (it will be interesting to see whether the courts emphasize the speaker's perspective in this context more than the Supreme Corut did in Bryant!) and that the social worker was focused on therapeutic and protective goals rather than on gathering evidence ? no matter how frequently the given social worker and her colleagues have just happened to find themselves testifying for prosecutors about statements made by children in similar situations. If I am right in this supposition, it demonstrates the manipulability and inadequacy of the Bryant approach.

Fourth, I am pleased to say that I have begun work on an article in this area with Steve Ceci, one of the world's leading developmental psychologists. I anticipate we will call it The Child Quasi-Witness. Here are the main points I hope we make:

1. Some very young children, even though capable of purposive communication, should not be deemed capable of being witnesses for purposes of the Confrontation Clause. Their statements, even though made in contexts that would lead to the statements being characterized as testimonial if they were made by an adult, should therefore be deemed beyond the scope of the Confrontation Clause. I hope to offer several perspectives on the standards courts might use in determining whether a child should be deemed capable of being a witness for Confrontation Clause purposes.

2. Even if a child is not capable of being a witness for Confrontation Clause purposes, her statements may have substantial probative value.

3. If a child is not capable of being a witness for Confrontation Clause purposes but a prosecutor offers her statement against an accused, then the accused should have a right ? both as a matter of ordinary procedural law and as a matter of due process ? to examine the child, as he would an inanimate object that is the source of crucial evidence against him. But this examination would not be by personal confrontation, under oath and subject to cross-examination in open court. Rather, it would be by a qualified expert ? presumably a child psychologist ? in a controlled environment.

4. This procedure is far better for truth determination than is cross-examination in open court of a very young child, and offers the accused a better opportunity to explore weaknesses in the child's account.

Defense counsel might consider making an argument along these lines as an alternative to an objection to a child's statements based on the Confrontation Clause; I think courts will find the relief called for by this argument much more appealing than a holing that the child must be subject to confrontation in open court.

Meanwhile, here is a set of old posts bearing on statements by children; some of these anticipate these arguments.

Children and forensic interviews, revisited, Jan. 7, 2008

Further developments and thoughts on child witnesses, Oct. 26, 2007

Child Witnesses on the Academic and Judicial Front, Sept. 7, 2007

An interesting sidelight on Crawford and Craig, June 26, 2006

R. v. Brasier -- a classic case from 1779, Dec. 24, 2005

Maryland's Highest Court on "Tender Years" Statements, Feb. 7, 2005.

Full post as published by The Confrontation Blog on March 07, 2011 (boomark / email).