by Sherry F. Colb
In my Verdict column for this week, I discuss Ohio v. Clark, a case that the U.S. Supreme Court recently agreed to review during the coming term. Clark raises questions about when the introduction of out-of-court statements offered for their truth (i.e., hearsay) against a criminal defendant triggers the Sixth Amendment right of confrontation and thus requires exclusion in the absence of an opportunity for the defense to cross-examine the maker of the out-of-court statements.
In this case, in response to questions by his teachers (about injuries on his face), a child identified his mother's boyfriend as the perpetrator. At trial, the judge deemed the (three-year-old) child incompetent to testify but permitted his teacher to testify about his statements to her and another teacher identifying the defendant as the cause of his injuries. What makes his statements potentially "testimonial" (i.e., the equivalent of in-court testimony and thus subject to the defendant's right of cross-examination) is the fact that his teachers are mandatory reporters of child abuse under the law and therefore might have been acting as agents of law enforcement in questioning the child about his injuries.
In my column, I discuss in greater detail the relationship between the introduction of hearsay evidence, on one hand, and the right of a criminal defendant to be confronted by the witnesses against him, on the other. I talk about the old test of whether hearsay triggered a right to cross-examination -- the reliability test of Ohio v. Roberts -- and the newer test of Crawford v. Washington that asks whether a particular item of hearsay is or is not "testimonial."
In this post, I want to focus on why the child in Clark was not available to the defendant for cross-examination: the judge's determination that he was incompetent to testify and therefore could not take the stand to directly provide his account of what happened. It was for this reason that the jury was left to rely on the testimony of third parties who took the stand and repeated the statements that the child made to them.
Witness competency, as a general matter, refers to a witness's ability to perform the tasks of a witness. If offered as an expert, then the witness must demonstrate the requisite expertise that will help the jury understand evidence that it might otherwise have a difficult time understanding. If offered as a lay witness, on the other hand, the witness ordinarily must have direct perceptual knowledge of some matter that is of consequence to the case. If the litigation concerns a car accident, for instance, a competent witness will have either seen the accident with her own eyes or will have directly observed some other feature of relevance to the case (e.g., the defendant's drinking alcohol or speeding beforehand or the extent of the plaintiffs' injuries).
In the case of a young child, however, other requirements for witness competency become salient, namely, the ability to accurately perceive what is happening around one, the capacity to recall what happened in the past, and an understanding of the difference between the truth and a lie, along with an appreciation of the obligation to tell the truth. In ordinary adult witnesses, these abilities are all clear or assumed, but young children are often as yet unable to accomplish these rudimentary cognitive tasks that are necessary to being able to testify helpfully for the jury.
When a judge finds that a particular child is incompetent to testify, then, the judge has made a determination that even though the child may be capable of communicating, he does not meet some threshold of ability to take in reality, to remember it from one point to the next, or to convey it truthfully, with an understanding of the meaning and importance of telling the truth while under oath.
Given this sort of determination by the judge, it may seem odd that third parties would then be allowed to repeat the out-of-court statements of the very person who has been deemed insufficiently capable of observing, remembering, and communicating to be able to come before the jury and testify himself. If he is not sufficiently worthy of being heard to testify, then how can his earlier out-of-court statements be considered worthwhile? This question, in fact, seems apt regardless of how we resolve the constitutional issue of whether the out-of-court statements trigger the Sixth Amendment right to cross-examination.
One response might be to say that it is precisely the child's incompetence to testify that makes it acceptable to have third parties repeat his statements in court without there being an opportunity to cross-examine the speaker who made those statements. Since he cannot testify, the child is by definition, incapable of testimony, and his earlier assertions therefore cannot possibly be "testimonial" for purposes of the Sixth Amendment.
This response may be correct, for Sixth Amendment purposes, but it still does two things: it begs the question why a testimonially incompetent witness is being allowed to offer his (presumptively) incompetent observations and memories through a third party at the trial, when he may not do so directly from the stand; and it suggests that the Sixth Amendment right of confrontation may be an inadequate protection, if it only provides a right to cross-examine statements that are sufficiently reliable and useful to qualify the speaker as a witness but leaves unexamined the words of a person who has been disqualified from taking the witness stand. In other words, if the Court were to deem the out-of-court statements of a disqualified witness ipso facto nontestimonial and therefore admissible in virtue of the speaker's incompetence, then this in itself suggests that Confrontation Clause doctrine leaves something to be desired.
I raise these issues here in a preliminary fashion and do not offer any definitive answers. I would suggest, however, one potential response to the quandary. I would point out that the out-of-court statements of incompetent people (whether of children, impaired elderly, or extremely disabled adults) can provide important information about the abuse and mistreatment of vulnerable populations. This is why if a child -- even a very young child -- tells the police that his parents are hurting him, then the police will and ought to look into that claim rather than ignore it on account of the child's relative incompetence.
By the same token, and despite the flawed nature of communication by very young children and mentally impaired adults, it is important for fact-finders in abuse cases to -- in some way -- hear from the victims of the alleged abuse. Introducing the words of such victims through third parties, who can provide context, offer any proper skepticism, and present potential corroboration for what they heard from the victim, can be quite useful.
Stated differently, a presumptively incompetent witness -- one whose "under oath" testimony would not be remotely comparable to the sworn testimony of an adult -- should not be completely silenced in a proceeding to determine what happened to him. His statements to his teachers may be something less than "testimonial" -- in part because he is so young and incapable of meeting the perceptual, memory, and sincerity burdens of a testifying witness -- but they are worth more than nothing. In a case such as this, jurors will surely take into account the fact that the victim is not testifying and may count that fact against his credibility. But because the victim did speak to a teacher, and the teacher had the opportunity to assess the child's capacities at the time of the statement -- it seems just that the jury, in deciding whether or not the child was in fact victimized by the defendant, should have this bit of evidence, along with other evidence of the misconduct, at its disposal.