Confrontation Clause in Child Sex Abuse Cases

“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witness against him.” Sixth Amendment, United States Constitution.

The right of an accused to be confronted by a witness dates back to Roman times. The promise that the accused has a right to confront their accuser in open court is directly stated in the Confrontation Clause of the Sixth Amendment of the United States Constitution and was reinforced by Justice Scalia in Crawford v. Washington, 541 U.S. 36 (2004).

Justice Scalia’s opinion was clear: Use of testimonial statements by witnesses absent from trial must be excluded unless the declarant is 1) unavailable to testify at trial; and 2) the defendant had a prior opportunity to cross-examine the declarant regarding the statement.

Why makes child sex abuse cases different?

In child sex abuse cases, however, Minnesota courts are slowly eroding the basic right of the Confrontation Clause. In a series of cases with inconsistent analyses, Minnesota courts have held that statements made by a child in a forensic video interview are non-testimonial and therefore admissible. Even though the accused has had no opportunity to cross-examine the declarant. Forensic interviews are used often in child-victim cases to elicit what happened in a safe and supportive environment for the child. The problem, however, is that the defendant never gets the chance to cross-examine the child or testimony if the child-victim does not present for trial. This is where the U.S. Constitution kicks in.

In a recently published article entitled “Child Sex Abuse and the Sixth Amendment,” published by Minnesota Bench & Bar, Stacy Bettison with co-author Matthew Mankey examine the nature and purpose of forensic interviews, provide examples of specific areas of concern, and review relevant federal and state case law. Our intent is to provide a useful outline of relevant issues and draw attention to what’s become a fundamental problem for the accused. (Download the full article here.)

Why do we care about individuals accused of a sex crime?

Admittedly, alleged child sex abusers enjoy little public sympathy. Defense counsel who represent such defendants are no stranger to the “How-can-you-represent-them” question. Yet the confrontation clause protections are no less important or applicable to these defendants. The consequences for these accusations are high, forth both the accused and victims. Confrontation is designed to elicit the truth — which is what our system of justice relies on. The truth ensures victims are protected and people are not wrongful accused. If the wrong person is found guilty based on questionable, uncross-examined testimony, the real perpetrator remains free to continue hurting others. That’s bad for everyone.

Our civilized society has a compelling interest in caring for our youngest and most vulnerable citizens. Yet we must do so in a manner that adheres to the fundamental structure of our civil liberties. The current state of case law protects the former at great expense to the latter.

The testimonial v. nontestimonial determination suffers from Minnesota courts engaging in an “ends justify the means” analysis. Judicial decisions often seem based on emotion—or getting to the “right” result. The focus should be using a set of well-defined factors that the United States Supreme Court has articulated to ensure a consistent and honest analysis.

Thank you for reading.