Child Hearsay - Testimonial or Not?

[CASE] A trial court allowed testimony by the mother and a family friend of a three-year-old about the child's statements relating to the defendant's sexual conduct with her. Did this violate his confrontation rights under Crawford v. Washiington? The Washington Supreme Court says no. State v. Shafer, --- P.3d ----, 2006 WL 307904 (Wash. Feb. 9, 2006), Westlaw.

The issue turns on whether the statements were "testimonial." Chief Justice Alexander, writing for the majority, says that the declarant -- the child -- did not believe that the statements would be used in an investigation or prosecution. Justice Sanders, in dissent, says that the majority's approach is subjective, and instead urges an objective test, looking at a reasonable person. The majority responds in a footnote (note 8):

The proper test to be applied in determining whether the declarant intended to bear testimony against the accused is whether a reasonable person in the declarant's position would anticipate his or her statement being used against the accused in investigating and prosecuting the alleged crime. The inquiry focuses on the declarant's intent by evaluating the specific circumstances in which the out-of-court statement was made. * * * Applying this standard, it defies logic to think that T.C., as a three-year-old child, or any reasonable three-year-old child, would have an expectation that her statements about alleged sexual abuse could be used for prosecutorial purposes. Thus, whether one looks to T.C.'s subjective appreciation of the legal ramifications of her statements, as the dissent incorrectly asserts we do, or whether one objectively looks to what a reasonable, competent person in T.C.'s position would understand to be the import of the statements, which is the proper determination, the outcome of this case would not change. A three-year-old child, whether T.C. or a fictional reasonable one, who tells her mother and a family friend in a private setting about sexual abuse is not making the statements in anticipation that the statements will later be used to prosecute the alleged sexual abuse perpetrator.

And to that, Justice Sanders says that a reasonable person is a reasonable person, not a person with the subjective experiences of a three-year-old.

Justice Chambers concurs in the result, but writes separately to observe that the state constitution may in some circumstances provide greater protection than the U.S. Constitution's Sixth Amendment.

(By the way, students: All three writing Justices are graduates of the UW Law School -- Chief Justice Alexander in 1964, Justices Chambers and Sanders in 1969. Will you be sitting on the bench with a classmate in 35 years? Which one(s)?)

Categories: hearsay, evidence, Crawford-v-Washington, cases, UW, Alexander, Chambers, Sanders