Wednesday, April 30, 2008

ACCA on Crawford

Even more depressing than child pornography cases is that other scourge of the military justice system: child sexual abuse cases. ACCA yesterday explored the Crawford v. Washington, 541 U.S. 36 (2004), implications of the evidence leading to the conviction of a Specialist for twice raping his five-year-old daughter. United States v. Russell, __ M.J. ___, No. ARMY 20050281 (A. Ct. Crim. App. Apr. 29, 2008).

In Russell, the victim was playing with another young girl who lived in the neighborhood. The other young girl's mother discovered that the two girls were engaging in inappropriate behavior with one another in a locked room. When she asked about it, the victim said they were playing a "sex game." The mother asked the victim some additional questions, which resulted in the victim indicating that her father had performed sexual acts on her.

The first issue in Russell was whether the mother's testimony about the statements was permissible under Crawford assuming no opportunity to confront the victim herself. Yes, ruled ACCA. First, there was no law enforcement involvement in the questioning that led to the statements. Second, neither the mother nor the victim engaged in the conversation with a view toward criminal prosecution. ACCA quoted CAAF for the proposition that "[s]tatements made to family, friends, and acquaintances without any intention for use at trial have consistently been held not to be testimonial, even if highly incriminating to another." United States v. Scheurer, 62 M.J. 100, 105 (C.A.A.F. 2005). Crawford therefore didn't bar the mother's testimony about the statements.

ACCA then held that the statements were properly admitted under Military Rule of Evidence 807's residual hearsay exception, finding that the statements were supported by sufficient particularized guarantees of trustworthiness.

ACCA then considered whether statements the victim made to a psychologist were properly admitted under Military Rule of Evidence 803(4)'s hearsay exception for statements made for medical diagnosis or treatment. No, held ACCA. The proper focus is on the declarant's understanding of the purpose of the interview, not that of the mental health provider. And "there is little indication [the victim] understood [the psychologist] was a doctor or that the examination was for the purpose of receiving medical treatment." Russell, slip op. at 13. ACCA concluded that the military judge's ruling allowing testimony about the victim's hearsay statements to the psychologist was "clearly erroneous." Id., slip op. at 14. But ACCA held that this error was harmless beyond a reasonable doubt considering the other evidence in the case, including the accused's two confessions and the corroborating testimony provided by the victim's friend's mother.


No Man said...

Strangely it seems that neither ACCA nor the government argued residual hearsay for the statements to the psychologist. Now I don't contend to be a psychologist, but if a 5 year talking about anything with her mom (or dad) exhibits indicia of trustworthiness, how the heck does the conversation with the psychologist not show greater indicia? If my son feels I am quizzing him about something he has done wrong he'll tell me his brother is fine if he's standing next to him bleeding from the nose. I assume most ACCA judges have children, be interested to see how old the panel's children are.

Anonymous said...

I'm guessing because regardless of whether it qualifies under residual hearsay, you still still have the same Crawford problem

John O'Connor said...

And you have to give notice for residual hearsay if I recall correctly.

Anonymous said...

I don't think an appellate court should ever "argue" for admission of evidence. Did the government argue for admissibility of that item of evidence under 807 at trial?

Phil Cave said...
There's a lot more legitimate research out there.