The Conundrum of Children, Confrontation, and Hearsay

Richard D. Friedman (*) I INTRODUCTION The adjudication of child abuse claims poses an excruciatingly difficult conundrum. The crime is a terrible one, but false convictions are abhorrent. Often the evidence does not support a finding of guilt or innocence with sufficient clarity to allow a decision free of gnawing doubt. In many cases, a large part of the problem is that the prosecution's case depends critically on the statement or testimony of a young child. Even with respect to adult witnesses, the law of hearsay and confrontation is very perplexing, as anyone who has studied American evidentiary law and read Supreme Court opinions on the subject knows. Juxtaposing problems of hearsay and confrontation with those of child sexual abuse yields one of the most intractable problems that a system of criminal justice can face. II RESTRUCTURING THE GENERAL LAW OF CONFRONTATION AND HEARSAY I do not believe that our criminal justice system can reach a satisfactory resolution of the problems inherent in adjudicating claims of child abuse until it restructures the general law of confrontation and hearsay. (1) In Lilly v. Virginia, (2) I co-authored an amicus brief for the American Civil Liberties Union proposing a reconceptualization of the confrontation right. (3) Justice Breyer, one of the members of the plurality in that case, wrote a concurring opinion referring extensively to the brief and expressing considerable sympathy for the views advanced in it. (4) These views are in many ways compatible with those of Justices Scalia and Thomas. (5) Thus, it is plausible that in the reasonably near future the Court will revamp the Confrontation Clause along the lines suggested in the amicus brief. The current doctrine depends largely on the Court's perception that hearsay law and the confrontation right "are generally designed to protect similar values and stem from the same roots." (6) Thus, the Court has tended to meld the two, treating both as aimed at facilitating accuracy in truth-finding by weeding out unreliable evidence. With respect to out-of-court statements, therefore, the Court has given the confrontation right very little ambit independent of hearsay law. If a statement fits within a "firmly rooted" hearsay exemption, (7) then the Confrontation Clause is unlikely to pose an obstacle to admissibility. (8) As a result, whether a statement by a child alieging sexual abuse should be admitted at the trial of the alleged abuser often depends on whether the court deems the statement to fit within one of the hearsay exemptions listed in the Federal Rules, a list purportedly determined by considerations of reliability. (9) This approach is objectionable on numerous grounds. A. The Difficulties of Determining Reliability Reliability is very difficult to determine. To confirm this point, we need look no further than the current debate over the reliability of child witnesses. (10) Any attempt to sort out reliable from unreliable evidence must run aground. If the determination is made according to broad categories of evidence, the law will be too blunt--not only sweeping in many statements that are not reliable, but also basing decisions on generalizations that may have little bearing on the particular case. If the determination is made case by case, it will not necessarily be any better. The determination will inevitably be very subjective, and it will be either effectively immune from appellate control or extremely demanding on appellate resources. As an example of how reliability testing does not work, consider the decision of the Court of Appeals for the Tenth Circuit on remand in United States v. Tome." The court held that a five-year-old girl's statements to pediatricians alleging that her father had sexually abused her more than a year before were within the hearsay exception. (12) Because the identity of the perpetrator was important information in determining whether there was a risk of sexually transmitted disease, the court concluded that the statements were made for purposes of medical diagnosis and treatment, and therefore reliable for purposes of the Confrontation Clause. …