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.