Amicus Curiae Brief — Davis v. Washington

(7) (S) Hf Supreme court. U.S.

{

Nos, 05-5224 and 05-5705 FILED

are “FEB 2 - 2006

IN THE OFFICE OF THE CLERK

Supreme Court of the United States

ADRIAN MARTELL DAVIS,

Petitioner,

v.

WASHINGTON.

Respondent.

HERSHEL HAMMON,

Petitioner,

V.

INDIANA,

Respondent.

On Writs oF CERTIORARI TO THE

SuPREME Courts OF WASHINGTON AND INDIANA

BRIEF OF AMICUS CURIAE THE

NATIONAL ASSOCIATION OF COUNSEL FOR

CHILDREN IN SUPPORT OF RESPONDENTS

Craic A. STEWART ANTHONY J. FRANZE

ARNOLD & PORTER LLP Counsel of Record

399 Park Avenue ANGELA D. GIVENS

New York, NY 10022 KRISTEN KLICK WHITE

(212) 715-1000 ARNOLD & Porter LLP

555 12th Street, N.W.

Washington, DC 20004

(202) 942-5000

Counsel for National Association

of Counsel for Children

199303 ce)

PeeS

A s-f ’

L.

Il.

TABLE OF CONTENTS

Millions Of Child Victims Are Silenced By

Abuse And By Procedures Designed To Protect

| NR ER SE a eae ie (FRR CRC, ih Det Ds aR

A. Child Maltreatment Is Pervasive. .....

B. Child Victims Are Silenced by Their

Abusers and Few Cases Are Prosecuted.

C. Child Abuse Cases Are Notoriously

Difficult To Prosecute. .............

Child Maltreatment Cases Illustrate That

Petitioners’ Proposed Standard For Defining

“Testimonial” Statements Is Inherently Flawed.

A. Child Maltreatment Cases Illustrate That

the “Reasonable Person” Standard Is

RI or a oe

Petitioners’ Test Is Overbroad Because It

Could Potentially Define as “Testimonial”

Reports of Abuse by Children to Family

IR a8 Ga Wan eae oe etek os

Petitioners’ Test Is Inconsistent with

Admission of Children’s Out-of-Court

Statements Reporting Child Sexual Abuse

in 18th Century Trials. ..............

PPE a £5 SNK a Pedwiek dds bhbee eens

1]

17

19

il

TABLE OF CITED AUTHORITIES

Page

CASES

Colorado v. Vigil,

2006 WL 156987 (Colo. Jan. 23, 2006) ........ 15

Crawford v. Washington,

ee EE Siw exceed obuakeeeeaus passim

Globe Newspaper Co. v. Superior Court,

i! | ree 15

Lilly v. Virginia,

Se Ss DY 64.6404 ade we ee ke ewae 3, 13

Maryland v. Craig,

ee NE 6 dan civadubnaeeuauess 5

New York vy. Ferber,

POR I 6 0 d's es 3 wid eo de We ee es 15

Pennsylvania vy. Ritchie,

ts , Pere err errre ee ere 7

Prince v. Massachusetts,

Pe : SOUOD 5 bn Ne 6 c's bed Kd ss CaS Ee 15

White v. Illinois,

SE EE 6-4 66% bc en dawebicnabek des 12

Rangel v. Texas,

2006 WL 176839 (Tex. App. Jan. 26, 2006) .... 14

iil

Cited Authorities

Page

Hawaii v. Grace,

fig eS > © 14

Maryland vy. Snowden, -

867 A.2d I oe a 14

Minnesota v. Scacchetti,

690 N.W.2d 393 (Minn. Ct. App. 2005) ....... 15

R. v. Allam (Old Bailey Proceedings Sept. 7, 1768),

available at http://www.oldbaileyonline.org/

html _units/1760s/t17680907-40.html ......... 19-20

R. v. Craig (Old Bailey Proceedings July 3, 1771),

available at http://www.oldbaileyonline.org/

html_units /1770s/t17710703-33.html ......... 20

R. v. Crosby (Old Bailey Proceedings Dec. 7, 1757),

available at http://www.oldbaileyonline.org/html_

units/1760s/t17660903-38. html .............. 21

R. v. Ketteridge (Old Bailey Proceedings Sept. 15,

1779), available at http://www.oldbaileyonline.

org/html_units /1770s/t17790915-18.html ...... 21

R. v. Moulcer (Old Bailey Proceedings Oct. 17, 1744),

available at http://www.oldbaileyonline.org/html_

units/1740s/117441017-25.html .............. 2]

iv

Cited Authorities

Page

R. v. Tibbel (Old Bailey Proceedings Oct. 16, 1765),

available at http://www.oldbaileyonline.org/html_

units/1760s/t17651016-2.html ............... 20

R. v. Brasier,

1 Leach 199, 168 E.R. 202 (1779) ......... 21-22, 24

TREATISES, STUDIES, AND ARTICLES

Akhil Reed Amar, Confrontation Clause First

Principles: A Reply to Professor Friedman, 86 Geo.

ty SOP A OUEOD. 00 05000 ebeukeus ph 18

Jessie Anderson et al., Childhood Sexual Abuse

Experiences in a Community Sample of Women, 32

Am. Academy of Child and Adolescent Psychiatry

SEU CUUEOD <66v es ceueGSincebie eee 6

Anne E. Appel & George W. Holden, The Co-

Occurrence of Spouse and Physical Child Abuse:

A Review and Appraisal, \2 J. of Fam. Psychol.

PUPCRUOED soccusintscceuddeuecer eee 6,9

Robert Apsler et al., Perceptions of the Police by

Female Victims of Domestic Partner Violence, 9

Violence Against Women (2003) ............. 18

Christopher Bagley & Richard Ramsay, Sexual Abuse

in Childhood: Psychosocial Outcomes and

Implications for Social Work Practice, 4 J. Soc.

Work & Hum. Sexuality 33 (1986) ........... 18

Cited Authorities

Douglas Barnett et al., Defining Child Maltreatment:

The Interface Between Policy and Research, in

Advances in Applied Developmental Psychology:

Child Abuse, Child Development & Social Policy

(Dante Cicchetti & Sheree L. Totheds.) .......

Francis Buller, An Introduction to the Law Relative

to Trials at Nisi Prius (New York, I. Riley & Co.

EN SSE ER ee ae a a

Sherman J. Clark, An Accuser-Obligation Approach

to the Confrontation Clause, 81 Neb. L. Rev. 1258

tte teGee ele dd vb bbeehetcseesess

Theodore P. Cross et al., Prosecution of Child Abuse:

A Meta-Analysis of Rates of Criminal Justice

Decisions, 4 Trauma, Violence, & Abuse 323

ee

Steven Delaronde et al., Opinions Among Mandated

Reporters Toward Child Maltreatment Reporting

Policies, 24 Child Abuse & Neglect 901 (2000)

Edward Hyde East, A Treatise of the Pleas of the

ERE ea ST aac a

Michele Elliott et al., Child Sexual Abuse Prevention:

What Offenders Tell Us, 19 Child Abuse & Neglect

Ee eA ll a a

Page

19

15

vi

Cited Authorities

John W. Fantuzzo, et al., Domestic Violence and

Children: Prevalence and Risk in Five Major U.S.

Cities, 36J. Am. Academy of Child and Adolescent

PRE SEGUE vhakas scaecusseepecies

David Finkelhor & Jennifer Dziuba-Leatheman,

Victimizaton of Children, 49 Am. Psychologist 173

SIN beta alec a wa whine Oak dl ieaks it ak eek eee

Jillian M. Fleming, Prevalence of Childhood Sexual

Abuse in a Community Sample of Australian

Women, 166 Med. J. Austl.65 ...............

Richard D. Friedman, Grappling With the Meaning

of “Testimonial,” 71 Brook. L. Rev. 241 (2005)

Page

PTET TTL TTT TTL eer rT eer ee 3, 13, 15

Richard D. Friedman, The Conundrum of Children,

Confrontation, and Hearsay, 65 Law & Contemp.

a ere ere eee 3, 13-14

Jennifer J. Freyd et al., The Science of Child Sexual

Abuse, 308 Sci. 501 (2005) .................

Geoffrey Gilbert, The Law of Evidence (Lintot 1756)

"Seve@e@ecweetP@erteeCgce ee Bee e ce 8 82a es ea eee 6 6 6 6 eo 6S eo

Gail S. Goodman, et al., Face-to-Face Confrontation:

Effects of Closed-Circuit Technology on Children’s

Eyewitness Testimony and Jurors’ Decisions, 22

Law & Human Behavior 165 (1998) ..........

Matthew Hale, Zhe History of the Pleas of the Crown

19

10

$h6'0an4dnd bes 40d seesa nee cadavecerheds 9, 21-22

vii

Cited Authorities

Rochelle F. Hanson et al., Factors Related to the

Reporting of Childhood Rape, 23 Child Abuse &

I a i a se

Astrid Heger et al., Children Referred For Possible

Sexual Abuse: Medical Findings In 2384 Children,

26 Child Abuse & Neglect 645 (2002) .........

Chris Hutton, Sir Walter Raleigh Revived: The

Supreme Court Re-Vamps Two Decades of

Confrontation Clause Precedent in Crawford v.

Washington, 50 S.D. L. Rev. 41 (2005) ........

Peter K. Isquith et al., Blaming The Child: Attribution

Of Responsibility To Victims Of Child Sexual

Abuse, in Child Victims, Child Witnesses:

Understanding & Improving Testimony (G.S.

Goodman & B. L. Bottoms eds., 1993) ........

Katherine M. Kitzmann et al., Child Witnesses to

Domestic Violence: A Meta-Analytic Review, 71

J. Consuctinc & Cuinicat Psycuor. 339 (2003)

John H. Langbein, The Criminal Trial Before the

Lawyers, 45 U. Chi. L. Rev. 261 (1978) .......

Edward O. Laumann et al., The Social Organization

of Sexuality: Sexual Practices in the United States

8 BS pots 2 de ee reg pee mr MOT et

Page

10

16

1]

19

vill

Cited Authorities

Thomas D. Lyon & Karen J. Saywitz, Young

Maltreated Children’s Competency to Take the

Oath, 3 Applied Developmental Sci. 16 (1999) ...

Thomas D. Lyon, et al., Reducing Maltreated

Children’s Reluctance To Answer Hypothetical

Oath-Taking Competency Questions, 25 Law &

Sy I I a a ae

Terry Lugaila & Julia Overturf, United States Census

Bureau, Children and the Households They Live

Sy PEE: 2.004 canbe cenankewlek ke

Susan Morison & Edith Greene, Juror And Expert

Knowledge Of Child Sexual Abuse, 16 CHicp Asuse

SD es, SE: 4h bs we bee Seauee cee

John E. B. Myers et al., Jurors’ Perceptions Of

Hearsay In Child Sexual Abuse Cases, 5 Psycuov.

. © & es ef ee ee

Nat’! Clearinghouse on Child Abuse and Neglect Info.

Mandatory Reporters of Child Abuse and Neglect

SED kc-npave kes wae wecectwiecdesseree was

Carole Peterson, Children’s Memory for Medical

Emergencies: 2 Years Later, 35 Developmental

Fs DEP EUEEED ac cccutdeesoustecvacens

Allie Phillips, Child Forensic Interviews After

Crawford v. Washington: Testimonial or Not?, 39

POMRROUEES TE GE, BOGOD ow vcs cneccscsuseds

Page

10, 16

10

10

18

16

16

ix

Cited Authorities

Myrna Raeder, Remember the Ladies and the Children

Too, 71:1 Brook L. Rev. 311 (2005) ...........

Pamela C. Regan & Sheri J. Baker, The Impact of

Child Witness Demeanor on Perceived Credibility

and Trial Outcome in Sexual Abuse Cases, 13 J. of

Family Violence 187 (1998) .................

Louise D. Sas & Alison H. Cunningham, Tipping the

Balance to Tell the Secret: Public Discovery of

Child Sexual Abuse 1 (1995) ................

Karen J. Saywitz & Rebecca Nathanson, Children’s

Testimony and their Perceptions of Stress In and

Out of the Courtoom, 17 Child Abuse & Neglect

PY 605 ie DE Coenen akets come vasa

Judith G. Smetana & Judith L Braeges, The

Development of Toddler's Moral and Conventional

Judgments, 36 Merrill-Palmer Quarterly 329 ( seca

Barbara Smith & Sharon G. Elstein, The Prosecution

of Child Sexual and Physical Abuse Cases: Final

RE PEER 8 ee we eee

Daniel W. Smith et al., Delay in Disclosure of

Childhood Rape: Results from a National Survey,

24 Child Abuse & Neglect 273 (2000) .........

Patricia G. Tjaden & Nancy Thoennes, Predictors of

Legal Intervention in Child Maltreatment Cases.

16 Child Abuse & Neglect 807 (1992) .........

Page

21

i]

10

16

x

Cited Authorities

Page

Barbara Wood et al., Semistructured Child Sexual

Abuse Interviews: interview And _ Child

Characteristics Related To Credibility Of

_ Disclosure, 20 Child Abuse & Neglect 8! (1996)

(evhesonsucesdbavesndeceseceskessases ys 1]

Rachel Zajac & Harlene Hayne, / Don't Think That's

What Really Happened: The Effect Of Cross-

Examination On The Accuracy Of Children’s

Reports, 9 J. of Experimental Psychol. Applied 187

(2003)

OTHER MATERIALS

Br. Amicus Curiae of Law Professors Sherman J.

Clark et. al. in Support of Petr., Crawford v.

Washington, 541 U.S. 36 (2004) ............. 3,13

Br. Amicus Curiae of the ACLU and the ACLU of Va.

in Support of Petr., Lilly v. Virginia, 527 U.S. 116

(1999)

INTEREST OF AMICUS CURIAE'

The National Association of Counsel for Children

(NACC) is a non-profit child advocacy and professional

organization founded in 1977. The NACC has approximately

2,000 members from all fifty states, including attorneys who

represent children before family and juvenile courts,

physicians, psychologists, social workers, law professors, and

other professionals concerned with the protection of children.

The NACC’s mission is to improve the lives of children and

families through legal advocacy. The NACC provides training

and technical assistance to attorneys and other professionals,

serves as a public information and professional referral

center, and educates public officials about the needs of

children.

Amicus submits this brief out of concern that Petitioners’

proposed standard for defining “testimonial” statements

under the Confrontation Clause is overbroad and unworkable

and would further impede the States’ ability to prosecute child

abusers and protect the welfare of our children.’

ee — ee

1. No counsel for a party authored this brief in whole or in

part. No person or entity other than the NACC, its members and

counsel made a monetary contribution to the preparation or

submission of this brief. Both Petitioners and Respondents have

consented to the filing of this brief, and pursuant to Rule 37.3(a),

the NACC has filed the letters of consent with the Clerk of the Court.

2. Amicus curiae acknowledge the assistance of Thomas D.

Lyon, J.D., Ph.D., Professor of Law, University of Southern

California and Raymond LaMagna, University of Southern California

Law School Class of 2006, in the preparation of this brief. Amicus

also acknowledge the assistance of Jacob E. Smiles, an Arnold &

Porter LLP associate who is admitted to practice only in Maryland

and is practicing law in D.C. pending approval of his application for

admission to the D.C. Bar and under the supervision of principals of

the firm who are members in good standing of the D.C. Bar.

2

SUMMARY OF THE ARGUMENT

Child sexual abuse and other forms of child maltreatment

are pervasive, yet most victims suffer in silence. Children’s

secrecy is maintained by their closeness to their perpetrators,

by threats and inducements, and by violence in the home.

Reporting is rare, and prosecution rarer still. Prosecutions

are hobbled by child witnesses’ vulnerabilities and by jurors’

skepticism. States have responded by adopting statutes

allowing children’s out-of-court statements to be introduced

at trial.

How this Court interprets its holding in Crawford in the

present cases is likely to affect the continued viability of these

statutes in prosecutions where an abused child is unable to

testify. Although children’s statements are not at issue here,

Petitioners’ proposed standard for defining “testimonial”

Statements should be considered in light of its implications

for thousands of child maltreatment prosecutions.

Petitioners’ standard—which asks whether a “reasonable

person” would anticipate use of the statement for law

enforcement purposes—is inherently flawed. Nowhere is this

more evident than when the test is applied to cases of child

sexual abuse.

First, a “reasonable person” standard is overbroad

because it has the capacity to include as “testimonial”

statements that declarants never anticipated would be used

prosecutorially. For instance, a young child reporting sexual

abuse may not appreciate that a statement could be used at

trial, when a “reasonable person” would.

Some courts, attempting to preserve the objective nature

of the test without embracing its inflexibility, have suggested

that the reasonable person may be a “reasonable child.” Others

3

have shifted to a subjective test when considering children’s

statements. Indeed, the leading scholarly proponents of

Petitioners’ standard have suggested that a subjective test for

certain children declarants may be appropriate. See Richard D.

Friedman, Grappling With the Meaning of “Testimonial,” 71

Brook. L. Rev. 241, 272-73 (2005); see also Richard D.

Friedman, The Conundrum of Children, Confrontation, and

Hearsay, 65 Law & Contemp. Probs. 243, 249-52 (2002).

All variations of the test are unworkable. An inflexible

objective test all but begs for exceptions for certain classes of

declarants (e.g., children, the mentally retarded). An age-based

objective test woul” compel courts to make developmental

assessments of chi dren’s understanding of “investigation,”

“prosecution,” and “crime.” A “reasonable child” test or

subjective test would permit consideration of an actual or

hypothetical child’s abilities, experience, and contextual

understanding. But these approaches would require courts to

do exactly what Petitioner Hammon says they should not: “flail

about in the dark in an attempt to understand the psyche of a

speaker who is not even testifying in court.” (Hammon Pet.

Br. 18.)

Second, Petitioners’ proposed test is overbroad because it

could encompass statements made to non-governmental

officials. (/d. at 17 “(Flor a statement to be deemed testimonial,

it is not essential that it be received by a government officer.”)).

Again, child abuse cases illustrate the complexities and flaws

with such an approach.

3. See also Brief Amicus Curiae of Law Professors Sherman J.

Clark, James J. Duane, Richard D. Friedman, Norman Garland, Gary

M. Maveal, Bridget McCormack, David A. Moran, Christopher B.

Mueller, and Roger C. Park, in Support of Petitioner, Crawford vy.

Washington, 541 U.S. 36 (2004) (No. 02-9410), 2003 WL 21754958.

at *22 n.12; Brief Amicus Curiae of the ACLU and the ACLU of

Virginia, in Support of Petitioner, Lilly v. Virginia, 527 U.S. 116

(1999) (No. 98-5881). 1998 WL 901782, at *26 & n.44.

4

Children typically disclose abuse (if ever) to a trusted

adult. Adult recipients of the information tend not to report,

even in instances when they are legally mandated to do so.

Nevertheless, Petitioners would have courts attempt to

determine whether a “reasonable person” would expect the

recipient to report abuse.

Such an approach is as historically unsound as it is

unworkable. Child sexual abuse cases from the time of the

Framing establish that children’s out-of-court reports were

routinely admitted into evidence, even if the child failed to

testify at trial.

In sum, Petitioners’ overbroad test would further silence

child victims. Currently, less than 10% of all child sexual

abuse comes to the attention of authorities, and still fewer

are ever prosecuted. Additional obstacles that are not

grounded in the text or history of the Confrontation Clause

should be rejected.

5

ARGUMENT

I. MILLIONS OF CHILD VICTIMS ARE SILENCED

BY ABUSE AND BY PROCEDURES DESIGNED

TO PROTECT THEM.

A. Child Maltreatment Is Pervasive.

Child maltreatment‘ is pervasive and exploits the most

vulnerable victims. Child sexual abuse, defined as sexual

contact between an adult and a child, has been reported by

20% of women and 5 to 10% of men in the United States

and other nations. Jennifer J. Freyd et al., The Science of

Child Sexual Abuse, 308 Sci. 501 (2005). Based on the

population of children in the United States, this means that

more than 500,000 children fall victim to abuse every year.

See Terry Lugaila & Julia Overturf, United States Census

Bureau, Children and the Households They Live In: 2000

(2004). These are conservative estimates, given the likelihood

of underreporting and memory failure. Freyd, supra, at 501.

Child physical abuse is even more common than sexual

abuse. David Finkelhor & Jennifer Dziuba-Leatheman,

Victimizaton of Children, 49 Am. Psychologist 173, 175

(1994). Moreover, child maltreatment overlaps with domestic

violence. Children are disproportionately present in homes

to which police are called for domestic violence crimes.

4. Child maltreatment includes physical child abuse, sexual

child abuse, and child neglect. Child neglect includes a failure to

provide for the child’s needs or a failure to protect, and may include

exposure to domestic violence. Douglas Barnett et al., Defining Child

Maltreatment: The Interface Between Folicy and Research, in

Advances in Applied Developmental Psychology: Child Abuse, Child

Development and Social Policy, at 7 (Dante Cicchetti & Sheree L.

Toth eds.). This brief emphasizes child. sexual abuse because it is

among the most commonly prosecuted crimes against children.

6

John W. Fantuzzo, et al., Domestic Violence and Children:

Prevalence and Risk in Five Major U.S. Cities, 36 J. Am.

Acad. Child & Adolescent Psychiatry 116, 120 (1997).

Approximately 40% of children in maritally violent homes

are themselves physically abused. Anne E. Appel & George

W. Holden, The Co-Occurrence of Spouse and Physical Child

Abuse: A Review and Appraisal, 12 J. Fam. Psychol. 578,

583 (1998) (review of 31 studies). Beyond that, children

exposed to domestic violence suffer from ill-effects akin to

physically abused children. Katherine M. Kitzmann et al.,

Child Witnesses to Domestic Violence: A Meta-Analytic

Review, 71 J. Consulting & Clinical Psychol. 339, 345-46

(2003) (meta-analysis of 118 studies).

B. Child Victims Are Silenced by Their Abusers and

Few Cases Are Prosecuted.

Only about 10% of child sexual abuse is ever reported

to the authorities (either police or social services). Freyd,

supra, at 501. Indeed, most victims of child sexual abuse

fail to disclose abuse to anyone until they reach adulthood.

A nationally representative survey of 3,423 American men

and women found that 78% of those disclosing sexual

abuse to the surveyor failed to disclose abuse during

their childhood. Edward O. Laumann et al., The Social

Organization of Sexuality: Sexual Practices in the United

States (1994). Delays of more than ten years have been

reported by a majority of respondents in other nationally

representative surveys. See Jessie Anderson et al., Childhood

Sexual Abuse Experiences in a Community Sample of Women,

32 Am. Acad. Child & Adolescent Psychiatry 911,915 (1993)

(of 3000 New Zealand women surveyed, 52% failed to

disclose abuse during childhood); accord Jillian M. Fleming,

Prevalence of Childhood Sexual Abuse in a Community

Sample of Australian Women, 166 Med. J. of Austl. 65, 67

(1997). And over a quarter of respondents in other national

7

surveys never told anyone they were abused until the survey,

“not mothers, best friends, or husbands.” Daniel W. Smith

et al., Delay in Disclosure of Childhood Rape: Results from

a National Survey, 24 Child Abuse & Neglect 273, 283

(2000).

One reason that children so frequently fail to disclose

abuse is that most sexual abuse is perpetrated by adults who

are close to the child. Most childhood rapes are by relatives,

friends, and known acquaintances. In one nationally

representative survey, only 10% of childhood rapes were by

Strangers. Smith, supra, at 278. Sexual abusers typically

exploit a trusting relationship, either one that is born of family

relationships and living arrangements, or one they create

through their encounters with the child and his or her family.

Michele Elliott et al., Child Sexual Abuse Prevention: What

Offenders Tell Us, 19 Child Abuse & Neglect 579, 585

(1995).

It stands to reason that the closer the relationship between

the child and the perpetrator, the greater the chance that abuse

will not be disclosed, or that disclosure will be delayed. As

the Court has recognized, “a child’s feelings of vulnerability

and guilt and his or her unwillingness to come forward are

particularly acute when the abuser is a parent.” Pennsylvania

v. Ritchie, 480 U.S. 39, 60 (1987).

Children also fail to disclose because the abusers often

threaten to harm them or their loved ones. In one nationwide

survey of 954 criminal cases of childhood sexual abuse,

children were threatened in over a fourth of the cases:

[WJarnings ranged from pleas that the abuser

would get into trouble if the child told (or that

the abuser would be sent away and the child would

never see them again—a powerful message to a

8

young child whose abuser is also a “beloved” parent),

to threats that the child would be blamed for the

abuse (especially troubling were children who were

told that the defendant's intimate—the child’s

mother—would blame the child for “having sex”

with the defendant and would thus turn against him

or her), to ominous warnings that the defendant

would hurt or kill the child (or someone he or she

loved) if they revealed the abuse.

Barbara Smith & Sharon G. Elstein, The Prosecution of Child

Sexual and Physical Abuse Cases: Final Report 93, 122

(1993).°

When victims do come forward, their first disclosure is

usually to a family member or friend, and virtually never to

authorities. Moreover, most disclosures to private parties are

never brought to the attention of authorities. Smith, supra,

at 279 (6.6% of childhood rape victims first told police/social

worker/clergy; only 12% ever reported to authorities).

Abusers closer to the child are least likely to be pursued,

given the child’s and family’s reluctance to proceed. Rochelle

F. Hanson et al., Factors Related to the Reporting of

Childhood Rape, 23 Child Abuse & Neglect 559, 560 (1999)

(rapes by strangers more likely to be reported to authorities

than rapes by perpetrators the child knew). Often, the child’s

5. A study examining over 500 cases of child sexual abuse

prosecuted in Canada had similar findings, noting that threats were

more common among children who delayed disclosure, threats were

reported by about half of the children, and that “overt threats were

not necessary if the man had a history of violence within the home.”

Louise D. Sas & Alison H. Cunningham, Tipping the Balance to Tell

the Secret: Public Discovery of Child Sexua! Abuse 1, 91-92, 122

(1995) (reporting threats to hurt the child or a third-party, harm the

mother emotionally, withdraw privileges, and warnings that the

abuser would be harmed by the disclosure or that the child would no

longer be loved by his or her mother).

9

mother is herself the victim of domestic violence and

unwilling to notify authorities. Appel & Holden, supra, at

582 (sexual abuse higher in homes with domestic violence).

As a result of non-disclosure, child sexual abuse is

among the least prosecuted serious crimes. Further, even

when the abuse is disclosed, various factors discourage

prosecution. In large part because of the vulnerabilities of

the victims—their age, their reluctance to testify, and the

reluctance of their family members to pursue charges—most

Sexual abuse cases substantiated by social services are not

prosecuted. Patricia G. Tjaden & Nancy Thoennes, Predictors

of Legal Intervention in Child Maltreatment Cases, 16 Child

Abuse & Neglect 807, 816-18 (1992) (19% of substantiated

sexual abuse cases prosecuted). Even among Cases presented

for prosecution by the police, as many as half were rejected.

See Theodore P. Cross et al., Prosecution of Child Abuse: A

Meta-Analysis of Rates of Criminal Justice Decisions, 4

Trauma, Violence, & Abuse 323, 330 (2003).

C. Child Abuse Cases Are Notoriously Difficult ‘To

Prosecute.

As the Court has recognized, “[c]hild abuse is one of

the most difficult crimes to detect and prosecute, in large

part because there often are no witnesses except the victim.”

Ritchie, 480 U.S. at 60. This has long been the case. Matthew

Hale, The History of the Pleas of the Crown 634 (T. Payne et

al., 1778) (“The nature of the offense, which is most times

secret, and no other testimony can be had of the very doing

of the fact, but the party upon whom it is committed.”).

Prosecutors face a number of hurdles when presenting

child witnesses. Children who understand the importance of

telling the truth may nevertheless fail to qualify to take the

oath because of the way in which competency questions are

10

phrased. Thomas D. Lyon & Karen J. Saywitz, Young

Maltreated Children’s Competency to Take the Oath, 3

Applied Developmental Sci. 16, 1617 (1999); Thomas D.

Lyon, et al., Reducing Maltreated Children’s Reluctance To

Answer Hypothetical Oath-Taking Competency Questions,

25 Law & Hum. Behav. 81, 8182 (2001). Children who testify

truthfully are susceptible to error because of the intimidating

nature of the courtroom or because of the aggressiveness of

cross-examination. Karen J. Saywitz & Rebecca Nathanson,

Children’s Testimony and their Perceptions of Stress In and.

Out of the Courtoom, 17 Child Abuse & Neglect 613, 619-

20 (1993) (children less accurate when questioned in

courtroom environment); Rachel Zajac & Harlene Hayne,

! Don't Think That's What Really Happened: The Effect of

Cross-Examination on the Accuracy of Children’s Reports,

9 J. Experimental Psychol. Applied 187, 193 (2003) (children

less accurate when cross-examiner challenges their

testimony). Protective devices designed to reduce children’s

trauma are also likely to reduce their credibility in the eyes

of the jury, who expect to see live witnesses. See, e.g., Gail

S. Goodman, et al., Face-to-Face Confrontation: Effects of

Closed-Circuit Technology on Children’s Eyewitness

Testimony and Jurors’ Decisions, 22 Law & Hum. Behav.

165 (1998) (closed-circuit testimony increased children’s

accuracy but reduced jurors’ perceptions of children’s

credibility).

Sexual abuse cases also present unique difficulties

because of jurors’ unrealistic expectations. Jurors expect

medica! evidence of sexual abuse, yet there usually is none.

Susan Morison & Edith Greene, Juror and Expert Knowledge

of Child Sexual Abuse, 16 Child Abuse & Neglect, 595, 607-

O8 (1992); Astrid Heger et al., Children Referred For Possible

Sexual Abuse: Medical Findings In 2384 Children, 26 Child

Abuse & Neglect 645, 652 (2002). Jurors expect children to

exhibit strong emotional reactions when describing abuse,

1]

yet children usually do not. Pamela C. Regan & Sheri J.

Baker, The Impact of Child Witness Demeanor on Perceived

Credibility and Trial Outcome in Sexual Abuse Cases,

13 J. Fam. Violence 187 (1998): Barbara Wood et al.,

Semistructured Child Sexual Abuse Interviews: Interview And

Child Characteristics Related to Credibility of Disclosure,

20 Child Abuse & Neglect 81, 88 (1996). Moreover, jurors,

particularly males, hesitate to convict if they believe that the

child consented to the abuse, even if the “consenting” child

is aS young as eleven years old. Peter K. Isquith et al.,

Blaming The Child: Attribution Of Responsibility To Victims

Of Child Sexual Abuse, in Child Victims, Child Witnesses:

Understanding & Improving Testimony 203, 223 (GS.

Goodman & B. L. Bottoms eds., 1993).

Notwithstanding these hurdles, prosecutors still strive

to produce a live witness in court, knowing that jurors likely

will give hearsay evidence less credence. See John E.B. Myers

et al., Jurors’ Perceptions of Hearsay In Child Sexual Abuse

Cases, 5 Psychol. Pub. Pol’y & L. 388 (1999) (hearsay

evidence is generally used to supplement a child’s testimony,

not in its place). Nevertheless, prosecutors may be forced in

some Cases to rely upon the child’s out-of-court statements

where the child fails to qualify to take the oath, is too

frightened to testify, or is kept away from trial.

Il. CHILD MALTREATMENT CASES ILLUS1 RATE

THAT PETITIONERS’ PROPOSED STANDARD

FOR DEFINING “TESTIMONIAL” STATEMENTS

IS INHERENTLY FLAWED.

Petitioners urge the Court to adopt a “simple” standard

to define when a statement is “testimonial” for Confrontation

Clause purposes: “whether a reasonable person in the position

of the declarant would anticipate use of the statement in

investigation or prosecution of a crime” (Hammon Pet. Br.

7), or whether “a reasonable declarant would have anticipated

12

that her statement might be used for law enforcement

purposes.” (Davis Pet. Br. 41.)°

As a threshold matter, Petitioners cite no historical

support for the standard. Likewise, they provide no textual

support. A defendant has a right to confront “witnesses,” not

“witnesses who reasonably would anticipate” that their

statements may be used in the prosecution of a crime. Further,

members of the Court have noted the practical difficulties

with such a test:

Attempts to draw a line between statements made

in contemplation of legal proceedings and those not

so made would entangle the courts in a multitude of

difficulties. Few types of statements could be

categorically characterized as within or without the

reach of a defendant’s confrontation rights.

White v. Illinois, 502 U.S. 346, 364 (1992) (Thomas, J., joined

by Scalia, J., concurring in part and concurring in the

judgment). Child maltreatment cases aptly illustrate these

deficiencies.

A. Child Maltreatment Cases Illustrate That the

“Reasonable Person” Standard Is Unworkable

The “reasonable person” test is overbroad because it will

include as “testimonial” statements the declarant never

anticipated would be used at trial.

6. Though his position is not entirely clear, Hammon suggests

that this test presumptively is met whenever a declarant makes a

“statement .. . to a known police officer (or other government agent

with significant law enforcement responsibilities) and accusing

another person of a crime... .” (Hammon Pet. Br. 7.)

13

Even the leading proponents of the “reasonable person”

test repeatedly have acknowledged that it may be ill-

suited when the declarant is a young child abuse victim.

See Friedman, Grappling, supra, at 272-73; see also

_ Friedman, Conundrum, supra, at 249-52.’ As Professor

Friedman has explained:

Suppose a child is so young that she has no sense

that what she is reporting is wrongful conduct . .

. and no sense that the person she identifies as the

perpetrator is subject to punishment for it.

Consider, for example, these two cases:

1. Webb: An eighteen-month-old girl, on being

lowered into the bath, said, “Ow bum,” and then

after the bath, while her mother was examining

her, “Ow bum daddy.”

2. Rhea: A two-and-one-half year-old child was

interviewed by a child protection specialist of the

7. See also Bricf Amicus Curiae of Law Professors Sherman J.

Clark, James J. Duane, Richard D. Friedman, Norman Garland, Gary

M. Maveal, Bridget McCormack, David A. Moran, Christopher B.

Mueller, and Roger C. Park, in Support of Petitioner, Crawford v.

Washington, supra, 2003 WL 21754958, at *22 n.12 (“Amici candidly

acknowledge that statements by young children will present some

of the closest issues under the testimonial approach, just as they do

in the current framework. Pre-trial statements by children to care-

givers such as parents and physicians may be considered non-

testimonial in some circumstances even though statements by adults

in similar circumstances would likely be considered testimonial.”);

Brict Amicus Curiae of the ACLU and the ACLU of Virginia, in

Support of Petitioner, Lilly v. Virginia, supra, at *26 & n.44

(“Statements made by children often pose difficult issues... .

Professor Friedman would consider other factors with respect to

children. For example, a very young child might have so little

understanding that she should not be deemed a witness for

Confrontation Clause purposes.”).

14

Department of Human Resources. In response to

questions, she denied that her father had done

anything wrong to her, but she nodded in

agreement to the question, “Did daddy make you

put his tee-tee in your mouth?”

It seems dubious to say that the children in these

cases were acting as witnesses.

Friedman, Conundrum, supra, at 250 (footnotes omitted).

Courts, too, have recognized the tendency of the

“reasonable person” test to sweep in statements that the

declarant might not anticipate being used at trial. See

Maryland v. Snowden, 867 A.2d 314, 328-29 (Md. 2005)

(“Although ... there may be situations where a child may

be so young or immature that he or she would be unable to

understand the testimonial nature of his or her statements,

we are unwilling to conclude that, as a matter of law, young

children’s statements cannot possess the same testimonial

nature as those of other, more clearly competent declarants.”’).

Yet, some courts have adopted the test nonetheless. See id.

at 328; Hawaii v. Grace, 111 P.3d 28, 38 (Haw. 2005); Rangel

v. Texas, __ §.W.3d ___, No. 2-04-514-CR, 2006 WL 176839,

at *5 & n.1 (Tex. App. Jan. 26, 2006).

Other courts have sought to remedy the shortcomings of

a rigid reasonable person test by looking not to a “reasonable

person,” but rather, a reasonable person in the position of

the declarant. Last week, for instance, the Colorado Supreme

Court reinstated a conviction reversed by the intermediate

appellate court, in part by finding that “an objectively

reasonable person in the [seven-year-old] declarant’s position

would not have believed his statements to the doctor would

be available for use at a later trial,” where a police officer

went with the child to the hospital and asked the doctor to

15

perform a forensic examination. Colorado v. Vigil, __ P.3d

__, No. 04SC532, 2006 WL 156987, at *7 (Colo. Jan. 23,

2006).

Similarly, other courts address the over-inclusiveness of

the test by turning the “reasonable person” standard into a

subjective test which examines the perspective of the actual

declarant. See, e.g., Minnesota v. Scacchetti, 690 N.W.2d 393,

396 (Minn. Ct. App. 2005) (statement to doctor non-

testimonial because defendant failed to show that “the

circumstances surrounding the contested statements led the

3-year-old to reasonably believe her disclosures would be

available for use at a later trial, or that the circumstances

would lead a reasonable child of her age to have that

expectation.”), review granted (Minn. Mar. 29, 2005). Indeed,

the leading proponents of the test have suggested a variation

of a subjective test in cases involving certain children may

be appropriate. See Friedman, Grappling, supra, at 272-73.°

Though the “reasonable person in the position of

declarant” or “subjective test” at least attempt to determine

the understanding of a real or hypothetical declarant, these

formulations would require courts to delve into the age and

8. It also has been suggested that certain children shou'd

potentially be relieved outright from the obligation of being

“witnesses” for Confrontation Clause purposes. See Friedmar.,

Grappling, supra, at 272; accord Sherman J. Clark, An Accuser-

Obligation Approach to the Confrontation Clause, 8\ Nes. L. Rev.

1258 (2003). To be sure, child abuse cases present unique

circumstances that may warrant such accommodations. See generally

Maryland v. Craig, 497 U.S. 836, 849 (1990); New York v. Ferber,

458 U.S. 747, 757 (1982); Globe Newspaper Co. v. Superior Court,

457 U.S. 596, 607 (1982); Prince v. Massachusetts, 321 U.S. 158,

168 (1944). The reasonable person test, however, is not flawed only

when the declarant is a child. Child abuse cases simply provide an

apt illustration of the inherent problems of any test that requires an

assessment of the mental state of a (real or hypothetical) declarant.

16

developmental stages of children concerning their potential

understanding of the abuse and sophisticated concepts such

as prosecution and punishment. See Chris Hutton, Sir Walter

Raleigh Revived: The Supreme Court Re- Vamps Two Decades

of Confrontation Clause Precedent in Crawford v.

Washington, 50 S.D. L. Rev. 41, 57-61 (2005) (providing

hypotheticals and differing outcomes based on age groups).

For instance, children as young as two years old are capable

of providing truthful information in response to nonleading

questions about distressing events. Carole Peterson,

Children’s Memory for Medical Emergencies: 2 Years Later,

35 Developmental Psych. 1493 (1999). Moreover, toddlers

may have some understanding that inflicting injury is

immoral and leads to punishment. Judith G. Smetana & Judith

L. Braeges, The Development of Toddler’s Moral and

Conventional Judgments, 36 Merrill-Palmer Quarterly 329

(1990). At the same time, children will appear not to

understand the meaning and morality of the oath until they

are five years or older. Lyon & Saywitz, supra. Still older

children will lack understanding of court processes that might

be integral to an awareness of the legal significance of one’s

statements. See Allie Phillips, Child Forensic Interviews After

Crawford v. Washington: Testimonial or Not?, 39 Prosecutor

17, 21-27 (Aug. 2005) (discussing studies). Hence, one could

conclude that children at a particular age are both capable

and incapable of making “testimonial!” statements, depending

on how narrowly or broadly one defines “investigation,”

“prosecution,” and “crime.”®

—_ -_

9. Indeed, it is not even clear that the “reasonable” adult

anticipates that accusatory statements made to the police may be

used at trial. Research on adult domestic violence victims’ calls to

the police has found that many victims do not want the police to

make an arrest, much less for the district attorney to pursue

prosecution. See, e.g., Robert Apsler et al., Perceptions of the Police

by Female Victims of Domestic Partner Violence, 9 Violence Against

Women 1318, 1326, Table | (2003) (only 1/3 of victims reporting

abuse to police wanted arrest).

17

In sum, these judicial and scholarly struggles with the

“reasonable person” test for children declarants revea! the

inherent problem with any test that seeks to define

“testimonial” based on a declarant’s state of mind.

An inflexible objective test all but begs for exceptions for

certain classes of declarants (e.g., children, the mentally

retarded), while the subjective approaches would require

courts to do exactly what Petitioner Hammon says they

should not: “flail about in the dark in an attempt to understand

the psyche of a speaker who is not even testifying in court.”

(Hammon Pet. Br. 18.) That the proposed test here is

unworkable for many child abuse cases—one of the core areas

of law impacted by Crawford—is telling. More telling is that

a resemblance test, which puts the focus on the actions of

the police, bypasses most, if not all, of these difficulties.

B. Petitioners’ Test Is Overbroad Because It Could

Potentially Define as “Testimonial” Reports of

Abuse by Children to Family Members.

Petitioners’ proposed test also is overbroad because it

could encompass statements made to non-governmental!

officials. (Hammon Pet. Br. 17 (“[{Flor a statement to be

deemed testimonial, it is not essential that it be received by

a government officer.”)).

Again, child maltreatment cases illustrate the flaws with

such an approach. Children typically disclose the abuse (if

ever) to a trusted adult: a parent, a teacher, or a friend. Smith

et al., supra, at 279. Petitioners would have courts attempt

to determine whether a “reasonable person” making such

disclosures would anticipate that the listener would report

those statements to authorities for use in prosecution.

Determining the mental state of a “reasonable person” in such

circumstances would be unworkable. For instance, would a

“reasonable person” assume that disclosure to an adult will

18

result in official intervention? If so, he would be wrong.

Christopher Bagley & Richard Ramsay, Sexual Abuse in

Childhood: Psychosocial Outcomes and Implications for

Social Work Practice, 4 J. Soc. Work & Hum. Sexuality 33,

37 (1986) 37 (majority of disclosures to adults did not result

in reports to authorities). Would a “reasonable person” be

aware of applicable mandatory reporting laws, or how

mandated reporters interpret and respond to those laws?

See Nat’! Clearinghouse on Child Abuse and Neglect

Information, Mandatory Reporters of Child Abuse and

Neglect (2003) (documenting variability among states

regarding who is mandated to report); Steven Delaronde et

al., Opinions Among Mandated Reporters Toward Child

Maltreatment Reporting Policies, 24 Child Abuse & Neglect

901 (2000) (finding variability among mandated reporters

in their tendency to report).

Further, this broad approach is not rooted in the text of

the Sixth Amendment. As one scholar explained:

When Abner tells his best friend Betty—before the

government has even appeared on the scene—that

he saw Carl rob the liquor store, Abner is not a

Confrontation Clause “witness” simply because

Betty later takes the stand against Carl, and tells the

jury what Abner told her. Within the meaning of

hearsay doctrine and evidence law, Abner may

indeed be an “out-of-court declarant”. . . . But this

is not the proper test of the meaning of the word

“witness[]” in the Constitution’s Confrontation

Clause. Within the meaning of both constitutional

law—as evidenced by text, history, and structure—

and common sense, Betty is the “witness,” not Abner.

Akhil Reed Amar, Confrontation Clause First Principles:

A Reply to Professor Friedman, 86 Geo. L.J. 1045, 1045-46

(1998) (footnote omitted).

19

C. Petitioners’ Test Is Inconsistent with Admission

of Children’s Out-of-Court Statements Reporting

Child Sexual Abuse in 18th Century Trials.

Beyond the textual deficiencies with Petitioners’

proposed test, child sexual abuse cases decided around the

time of the Framing refute any notion that all out-of-court

statements by child victims are “testimonial.” At that time,

courts frequently admiitted out-of-court disclosures of sexual

abuse made by children to trusted adults, even when the child

was unavailable for cross-examination."° Child rape trials

in London’s Old Bailey courthouse between 1744 and

1779 illustrate the point.'' For example, in R. v. Allam

(Old Bailey Proceedings Sept. 7, 1768), available at http://

10. A rule of best evidence was the centra! guiding principle

for the admissibility of extrajudicial statements during the 1700s.

See 1 Geoffrey Gilbert, The Law of Evidence 3-4 (Lintot 1756).

A party was required to produce the best evidence that was in their

possession or control. /d.; Francis Buller, An Introduction to the

Law Relative to Trials at Nisi Prius 293 (I. Riley & Co. 1806);

Thomas Peake, A Compendium of the Law of Evidence 8 (P. Byrne

1806). If a child was deemed incompetent to testify, her out-of-court

statements could be heard utilizing a best evidence rationale: they

constituted the best evidence available of her complaint.

11. Reports of these trials are available on a searchable database

at www.oldbaileyonline.org. The database revealed no further

proceedings in the cases discussed herein. It should be noted that

To write legal history from the [Old Bailey Proceedings]

is ... a perilous undertaking which we would gladly

avoid if superior sources availed us. However, on the

present state of our knowledge about the best surviving

sources, it has to be said that the [Old Bailey

Proceedings] are probably the best accounts we shall

ever have in what transpired in ordinary English criminal

courts before the later eighteenth century.

John H. Langbein, The Criminal Trial Before the Lawyers, 45.

U. Chi. L. Rev. 261, 271 (1978).

20

www.oldbaileyonline.org/html_units/1760s/t17680907-

40.html, the mother of the eight-year-old victim testified to

the following: “the child then said, William Allam had had

to do with her in the shed two days before. . . . [S]he said the

first time was in the shed, when the peas were in blossom:

1 understood by the child he had had to do with her three

- times.” The child did not testify in the proceedings, yet the

mother was still permitted to testify as to what her daughter

had told her regarding the rape. See id.

Similarly, in R. v. Craige (Old Bailey Proceedings

July 3, 1771), available at http://www.oldbaileyonline.org/

html_units/1770s/t17710703-33.html, the court permitted a

neighbor to testify as to what he was told by the ten-year-old

victim:

{The child] burst out a crying, and said | will tell

you who it was if you won’t tell my dada; I said I

would not, but would tell her mama. She said it

was Mr. Craige. | asked her who he was; she said,

the man that work’d for her father. I asked her

how he met with her; she said she was playing

with some peas, tossing them up upon the bed, as

she sat in the room playing with her doll. As she

went to get some of the peas, he throw’d her upon

the bed, and did something that hurt her, and

pressed her so hard upon her belly that she could

eal no victuals all next day.

Id. The child never testified. See id.; see also R. v. Ketteridge

(Old Bailey Proceedings Sept. 15, 1779), available at http:/

/www.oldbaileyonline.org/html_units/1770s/t177909 15-

18.htm! (admitting the four-year-old child’s out-of-court

statement identifying the alleged abuser and the details of

the rape): R. v. Tibbel (Old Bailey Proceedings Oct. 16, 1765),

available at http://www.oldbaileyonline.org/htm]_units/

21

1760s/t17651016-2.html (allowing the child victim’s mother

to testify that her daughter told her that the injuries to her

genitals were caused by the defendant); R. v. Crosby (Old

Bailey Proceedings Dec. 7, 1757), availabie at http://

www.oldbaileyonline.org/html_units/1760s/t17660903-

38.html (mother testified that her daughter told her “Mr.

Crosby did it, the day his wife went to the hospital, and left

me there; he got into bed, and call’d me to him. I went to

him. Then he pull’d me to him, and put his c - k to me there,

and hurt me sadly” and the child victim did not testify); R. v.

Moulcer (Old Bailey Proceedings Oct. 17, 1744), available

at http://www.oldbaileyonline.org/html_units/1740s/t1744

1017-25.html (mother testified that her daughter, who did

not testify, told her “Francis Moulcer had taken her into a

shed, and laid her down on the top of some hides, and pulled

down his breeches and lay with her”).'?

The Old Bailey Proceedings illustrate that, around the

time of our Founding, parents and other adults frequently

were permitted to testify regarding out-of-court statements

by minors, even when those statements identified the alleged

abuser and the alleged crime.

R. v. Brasier, 1 Leach 199, 168 E.R. 202 (1779), relied

on by Petitioner Hammon, is not to the contrary. (See

12. Although a number of these cases resulted in acquittal, this

is consistent with acquittal rates for eighteenth-century rape cases

in general. Low conviction rates may be explained by a requirement

that the government prove penctration, see, e.g., | Hale, supra, at

628, and in part from the overwhelmingly skeptical attitude with

which rape accusations were viewed during the era. This highlights

to some degree the significant socictal and legal changes concerning

child abuse that have taken place since 1791. See Myrna Raeder,

Remember the Ladies and the Children Too, 71 Brook. L. Rev. 311.

311-12, 314 (2005) (questioning historic approach to Confrontation

Clause given societal changes concerning domestic violence and

child abuse).

22

Hammon Pet. Br. 27.) In Brasier, a five-year-old made a report

of sexual assault to her mother, who testified to it at trial. Brasier,

168 Eng. Rep. at 202; 1 Edmond Hyde East, A Treatise of the

Pleas of the Crown 443 (1806). The trial judge reserved the

case for review, asking whether the child should have been

allowed to testify unsworn. Brasier, 168 Eng. Rep. at 202 (“the

judgment was respited, on a doubt, created by a marginal note”

citing, inter alia, | Hale, supra, at 634; 2 Hale, supra, at 279)."?

The reviewing court considered and rejected Hale’s proposal

that a child could testify in court without taking the oath, holding

“[t}hat no testimony whatever can be legally received except

upon oath.” Brasier, 168 Eng. Rep. at 202; see also | East,

supra, at 443, The reviewing court added that the girl should

not have been automatically presumed unavailable and

incompetent to testify due to her age. See Brasier, 168 Eng.

Rep. at 202-03; 1 East, supra, at 444. Rather, the trial court

should have examined the girl to assess her ability to understand

the oath. See Brasier, 168 Eng. Rep. at 202-03. Hence, her out-

of-court statements were not the best evidence available, and

the defendant was pardoned. The case simply does not address

a situation in which a child is properly found incompetent to

testify and her out-of-court statements are offered.

—-- =— -_-_

13. Because young children were presumed incompetent, Hale

proposed that courts hear children’s unsworn testimony. | Hale, supra,

at 634. Hale noted that parents were allowed to testify to their children’s

informal complaints; therefore, it made sense to hear directly from the

children themselves: “Because if the child complains presently of the

wrong done to her to the mother or other relations, their evidence upon

oath shall be taken; yet it is but a narrative of what the child told them

without oath, and there is much more reason for the court to hear the

relation of the child herself.” | Hale, supra, at 634-35. See also | East,

supra, at 44] (stating same). Hale justified this procedure by citing the

best evidence rationale for admission: “The nature of the offense, which

is most times secret, and no other testimony can be had of the very

doing of the fact, but the party upon whom it is committed.” | Hale,

supra, 634; see also 2 Hale, supra, at 279 (stating that the “exigence of

the case requires” examining young children unsworn).

23

Petitioner Hammon, however, depends on Brasier for a

very different and far more expansive proposition—that a

victim’s informal statements are “testimony” that can only

be given in court under oath. (Hammon Pet. Br. 27.) This

reading would render al] hearsay inadmissible, and is clearly

overly broad. Moreover, it misreads the court’s use of the

word “testimony,” which appears twice in the opinion: “That

no testimony whatsoever can be legally received except upon

oath,” 168 Eng. Rep. at 202, and “if [children] are found

incompetent to take an oath their testimony cannot be

received,” id. at 203. This discussion is not about

confrontation rights, but about the necessity of the oath and

the procedure by which children are qualified to take the

oath.

Petitioners’ overbroad “reasonable person” test would

further silence child victims and impede the States’ ability

to prosecute abusers. The test is contrary to Crawford and

the history and text of the Sixth Amendment. It should be

rejected in favor of a standard that treats as “testimonial”

Only those statements that were produced from the abusive

practices the Confrontation Clause was designed to prevent.

24

CONCLUSION

For the foregoing reasons, the judgments in Davis

(05-5224) and Hammon (05-5705) should be affirmed.

Respectfully submitted,

Craic A. STEWART ANTHONY J. FRANZE

ARNOLD & PORTER LLP Counsel of Record

399 Park Avenue ANGELA D. Givens

New York, NY 10022 KRISTEN KLick WHITE

(212) 715-1000 ARNOLD & Porter LLP

555 12th Street, N.W.

Washington, DC 20004

(202) 942-5000

Counsel for National Association

of Counsel for Children