Matthew T. Mangino
June 26, 2015
Confrontation plays a significant role in every criminal trial. Not the yelling, threatening, finger-pointing conduct we have grown accustomed to when we hear the word confrontation. The Sixth Amendment provides that an accused has the right to confront all witnesses against him.
In theory, the Confrontation Clause insures that a person charged with a crime has the right to come face-to-face with an accusing witness. That confrontation comes in the form of cross-examination.
Over time the Confrontation Clause was weakened by a series of court decisions. More and more statements made outside of court were being admitted at trial.
In 2004, the U.S. Supreme Court made a major Confrontation Clause decision barring most out-of-court statements of witnesses who were unavailable to testify at trial. The court reaffirmed that cross-examination is required to admit a prior testimonial statement of an unavailable witness.
According to Noah Feldman, a Bloomberg columnist, Justice Antonin Scalia’s opinion in 2004 required the court to ask whether the out-of-court statement was a form of testimony. If it was, the statement would be excluded; if not, it could be admitted. Scalia intended to toughen the standards for admitting testimony making it more difficult to admit statements made out of court when the witness was unavailable to testify.
Since 2004, the Supreme Court has examined the Sixth Amendment with differing results. The high court recently carved out an exception. The court ruled unanimously that if a child tells a teacher about a crime and the child is not old enough to testify in court, the statements made to the teacher may be used at trial without violating the Confrontation Clause.
The case, out of Ohio, involved comments made by a 3-year-old boy to his preschool teacher about physical abuse at the hand of his mother’s boyfriend. Prosecutors used what the boy said as evidence to help convict the boyfriend. Under Ohio law, children under age 10 are considered too young to be able to give competent testimony in court, so the boy was not called as a witness.
“The question in this case is whether the Sixth Amendment’s confrontation clause prohibited prosecutors from introducing those statements when the child was not available to be cross examined,” wrote Justice Samuel Alito. “Because neither the child nor his teachers had the primary purpose of assisting in [the boyfriend’s] prosecution, the child’s statements do not implicate the confrontation clause and therefore were admissible at trial.”
Justice Alito said that there could be additional circumstances in which an out-of-court statement to someone other than police could be used at trial without violating the Confrontation Clause. Alito went on to write that the out-of-court statement of a child too young to testify would almost always be admitted.
Justice Alito was joined by Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer, Elena Kagan, Anthony M. Kennedy, and Sonia Sotomayor. The three other Justices only supported the decision’s outcome, not Alito’s reasoning.
Justice Scalia, in a separate opinion joined by Justice Ruth Bader Ginsburg, took on Alito for trying to undermine his 2004 opinion that sought to bolster the Confrontation Clause. Scalia in his usual caustic tone accused Alito of undermining a fundamental right protected by the U.S. Constitution.
The decision is not a complete surprise. In this time of heightened sensitivity to physical and sexual abuse of children, this decision is a logical step in the ever expanding ability to prosecute and punish those who prey on children.
According to the USA Today, those who advocate for educators were encouraged by the decision. “This case could have had a chilling effect on teacher-student interactions,” said Lily Eskelsen García, president of the National Education Association. “Teachers aren’t cops. To confuse those two roles could have hampered educators’ ability to help their students.”
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was recently released by McFarland Publishing. You can reach him at mattmangino.com and follow him on Twitter at @MatthewTMangino.
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