The Legal Eagles Guide for Children's Advocacy Centers Part Iv: Soaring Higher for Children and Families

By Andrew H. Agatston

It is inevitable that a Childrens Advocacy Centers involvement with children who are suspected victims of child abuse will involve legal matters. A thorough understanding of the legal issues that routinely arise and that affect CACs and their ability to provide services cannot be fully understood and appreciated without legal counsel. There are legal issues triggered by the simple act of a CAC opening a file. As the case progresses, the legal issues often expand exponentially. Ultimately, decisions made that affect the health, welfare and future of a child will be decided in a courtroom or other legal processes leading up to the courtroom. This is the fourth edition of the "Legal Eagles of Children's Advocacy Centers" series written by Andrew Agatston to CACs as part of his national Legal Eagle List Serv. It follows his 2012 book "The Legal Eagles 2010 book, The Legal Eagles Guide for Childrens Advocacy Centers: Soaring Confidently in the Courtroom, and his 2009 book, The Legal Eagles Guide for Childrens Advocacy Center: A Lawyers Guide to Soaring in the Courtroom. The Legal Eagles List Serv is now in its 7th year, and has more than 900 subscribers in 48 states and two Indian Territories.

• Language: English
• Publisher: Xlibris US
• Release date: Feb 3, 2014
• ISBN: 9781493162338

Andrew H. Agatston

Andrew Agatston, J.D. is an attorney in private practice in Marietta, Georgia, and represents crime victims in civil litigation. Additionally, since 1999 he has representing Children´s Advocacy Centers, which are facilities that serve children who have alleged sexual or physical abuse, and her currently represents five CACs in Georgia. He also operates a national Legal Eagle Listserv for CAC professionals and others who work with them, such as law enforcement, prosecutors, doctors, nurses, social workers, CPS professionals and therapists. This is the fourth edition of the "Legal Eagles of Children's Advocacy Centers" series written by Andrew Agatston to CACs as part of his national “Legal Eagle” List Serv. It follows his 2012 book "The Legal Eagles 2010 book, “The Legal Eagles Guide for Children’s Advocacy Centers: Soaring Confidently in the Courtroom,” and his 2009 book, “The Legal Eagles Guide for Children’s Advocacy Center: A Lawyer’s Guide to Soaring in the Courtroom. The “Legal Eagles” List Serv is now in its 7th year, and has more than 900 subscribers in 48 states and two Indian Territories. Mr. Agatston regularly trains CACs nationwide on these important topics.

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Chapter One

A Crawford v. Washington Analysis Addressing Availability

Case:

In the interest of N.C., a Minor

Superior Court of Pennsylvania

Case No. 1258 WDA 2012

(Decided August 8, 2013).

Facts: J.N. (Mother) is the mother of two minor children, including A.D. The paternal grandmother of A.D. is S.H. (grandmother). Grandmother lives with her boyfriend Nathan. On November 5, 2011, when A.D. was 3 years old, her mother dropped A.D. off at Grandmother’s house on the way to work.

Later that day, Grandmother called Mother and told her that A.D. was upset and wanted to go home. Mother arrived at the home and A.D. was upset and was crying. Mother took A.D. home, and Mother testified that A.D. wasn’t acting like she usually did for approximately an hour and a half after she was picked up from Grandmother’s home.

Without any conversation, A.D. said my pee pee hurts. When asked what was wrong, A.D. responded, [N.C.] touched me.

Mother then called Nathan, the father of N.C., to ask if N.C. was present at Grandmother’s home. Nathan told her that N.C. was not there, after which Mother looked at A.D.’s genital area and noticed it was red in the center and applied Vaseline to it because she thought it was a rash. She did nothing further on that date because she thought N.C. could not have touched A.D. when he was not present at Grandmother’s home.

A few days later, Nathan told Mother that N.C. was, in fact, present at Grandmother’s home on the date that A.D. became upset. In response, Mother took her daughter to the police department and an investigation ensued.

A.D. was interviewed at the CAC. On several occasions after the forensic interview, Mother testified that she heard her daughter say that [N.C.] touched her pee pee. However, Mother could not give a specific date, time or specifics about the spontaneity of A.D.’s statements, although she indicated that she and her boyfriend had witnessed these statements.

Following the presentation of evidence, the juvenile court adjudicated N.C. delinquent of aggravated indecent assault. He appealed on numerous grounds which raise Crawford issues.

Result: Disposition vacated (reversed), and the case was remanded to juvenile court for a new hearing.

Discussion: A difficult legal situation can arise when an alleged victim is 3 at the time of disclosure and 4 at the time of the hearing or trial. In such similar circumstances, the State can anticipate defense attacks related to a child’s availability to testify. For reasons Legal Eagles are well-aware, this takes on particular importance when the young child undergoes a forensic interview and during a Crawford-type analysis, as we will soon see.

Step One on the appeal was to challenge the admissibility of the forensic interview because it violated N.C.’s right of confrontation (6th Amendment. U.S. Constitution). As we have learned in past chapters, based upon this argument, N.C can only win on this argument if the child was unavailable to testify and N.C.’s legal counsel had no prior opportunity to cross-examine her in some legally meaningful way.

The juvenile court judge ruled that N.C. was, in fact, available to testify. Therefore, that ruling was front and center on appeal. We’ll tackle that ruling in a moment.

But preliminarily, what is it about a forensic interview that triggers Crawford concerns? This is something that must be clearly understood by Legal Eagles.

First, we can all agree that when a child’s interview is recorded in a CAC, and that interview is later played in court, then the child’s abuse disclosures in that recording that the jurors hear are hearsay—out of court statements offered in court to prove the matter asserted (i.e., that the child was abused). One harm of hearsay is that the opposing party is not able to cross-examine the out-of-court declarant, such as the child in this example.

In years passed in many states there were Child Hearsay Statutes that would allow such prior hearsay statements made by the child to be introduced at trial if there were sufficient indicators that the child’s statements were reliable. So trial courts, before admitting the child’s hearsay allegations of abuse that were on F.I. DVDs, would conduct pre-trial hearings examining whether the child’s statements were sufficiently reliable to allow them to be admitted at trial in front of the jury: (1) Were they spontaneous? (2) Were they coerced? (3) Was the environment in which they were made a stable environment? (4) The child’s general demeanor; (5) The child’s general credibility, etc.

Thus, in years past in my state of Georgia, for example, so long as the State showed to the trial court’s satisfaction that the child’s statements on the DVD were reliable, then the prosecutor could elect not to put the child on the stand and instead play the DVD. That has changed in Georgia, and it is important to understand any such similar changes in your state.

[Important aside: There are still Child Hearsay Statutes, but look closely at your state’s for changes due to the U.S. Supreme Court decision in Crawford v. Washington.]

Then along came Crawford v. Washington, which ruled that in regard to certain types of statements (labeled testimonial), the U.S. Supreme Court rejected the adequate indicia of reliability standard when a witness was unavailable to testify. Indeed, as we now know, since Crawford was decided in 2004, the admissibility of hearsay statements of unavailable witnesses depends not on reliability factors but instead on whether the statements are testimonial or nontestimonial.

The Pennsylvania appellate court in today’s case set forth an analysis of determining whether a statement is testimonial:

In analyzing whether a statement is testimonial, and, therefore, subject to the protections of the Confrontation Clause under Crawford, a court must determine whether the primary purpose of the interrogation was to establish or prove past events relevant to a later criminal prosecution. In making the determination as to the primary purpose of an interrogation, a court first should determine whether the interrogation occurred during the existence of an ongoing emergency, or what was perceived to be an ongoing emergency. Although the existence—actual or perceived—of an ongoing emergency is one of the most important factors, this factor is not dispositive because there may be other circumstances, outside of an ongoing emergency, where a statement is obtained for a purpose other than for later use in criminal proceedings. In determining the primary purpose of an interrogation, a court must also objectively evaluate the circumstances surrounding the interrogation, including the formality and location, and the statements and actions of both the interrogator and the declarant.

That’s quite a long passage, but I encourage you to read it through carefully, and then go through its checklist in your head to determine whether you think that a child’s statements made during a forensic interview should be considered testimonial in nature. There have been many appellate cases that have litigated and analyzed this question. I can tell you that the very strong trend, which some might even call a settled rule of law, is that these statements during protocoled forensic interviews in CACs are testimonial.

Indeed, that is what N.C. argued on appeal: that they were testimonial in nature because (1) they were procured at a police-arranged interview; (2) they were conducted for the purpose of eliciting statements to be used during the prosecution of N.C.; (3) the forensic interviewer conducted the F.I. at the request of police; and (4) a detective, the investigating officer, and a representative from CPS watched the interview in a separate room on real time television.

It is important to note that if the child is competent to testify, and indeed testifies in a legally meaningful sense, the F.I. DVD with the testimonial statements comes into evidence. After all, the child is not unavailable, but rather still available to be cross-examined at trial and also about her prior statements on the DVD. In today’s case, as mentioned earlier, the juvenile court ruled that the child was available to testify.

N.C. argued on appeal that A.D. (the alleged victim) was wholly unavailable to testify, even though she was in the courtroom on the witness stand. He argued that the unavailable to testify at trial prong of the Crawford test was triggered because A.D. was so disengaged at trial during her trial testimony so as to be unavailable, effectively preventing N.C.’s trial counsel of the ability to cross-examine and confront her pursuant to the 6th Amendment right of confrontation.

The Pennsylvania appellate court agreed. This case example is why prosecutors with the help of the MDT have to work so diligently in planning in advance to address the potential of a child being unable to testify at trial due to fear, for example.

This includes the consideration of using a state’s statute (if one is applicable) that allows closed circuit testimony or other alternatives to live testimony. Further, legislative solutions—which fully take into account that young children generally and specifically young children who have alleged abuse are given additional consideration under the law—should be explored which would allow such alternative testimony that would still comport with the confrontation clause.

So what does unavailability look like when the child is actually in the courtroom and on the stand? According to the appellate opinion, A.D. was unable to provide testimony on direct examination after many attempts, eliciting an objection from defense counsel regarding her lack of responsiveness, which was overruled.

After a break, the prosecutor attempted to elicit testimony, but A.D. became nonresponsive and curled up into a fetal position.

Q:   (Prosecutor): Honey, is [N.C.] nice?

A: [No response.] Prosecutor: She’s further curling up in a ball. Court: The record will reflect that… . The Court: [C]an you look at me? [A.D.] is not acknowledging me so [to defense counsel] why don’t you go ahead and take her. [D]o you have any questions? Defense counsel: No.

As such, the appellate court found that the juvenile court erred by ruling that A.D. was available for purposes of the Sixth Amendment.

Chapter Two

A Court’s Analysis on Expert Testimony Admissibility

Case:

State v. Buccheri-Bianca

Court of Appeals of Arizona

Division Two

No. 2CA-CR 2012-0315

(Unpublished opinion, decided July 31, 2013)

Facts: In 2009, the Defendant lived in the same apartment building as a family with five children. He was in his late 80s, and had a broken leg. The neighbor family would help him occasionally with errands, such as getting groceries or prescription medication. They would clean his apartment.

The Defendant would sometimes ask the children to come into his apartment to help him, and would give them small gifts or candy. Three of the children testified that they had been in his apartment without other adults present, and he had molested them. Their mother; however, denied that her children had been inside his residence on any occasion. One of the children reported the molestation to a school counselor in 2010.

The Defendant was convicted of five counts of child molestation, and appealed his convictions on multiple grounds.

Result: Convictions affirmed.

Discussion: For purposes of this chapter, we will discuss only the issues appealed that were related to the State’s expert witness. Prior to trial, the defense filed a motion to preclude testimony from the state’s expert, arguing that her testimony was inadmissible on three grounds:

(1)   The basis of her expertise was rooted in novel scientific theories and therefore unreliable;

(2)   Her testimony was not helpful to the trier of fact (the jurors); and

(3)   Her testimony impermissibly bolstered the credibility of the victims.

The first place to look regarding the admissibility of expert witnesses is the state’s statute on the matter. We review Arizona’s as our illustration today, but as always, the competent and qualified attorney of your organization’s choice will be able to research your state’s statute.

Rule 702 of the Arizona rules of evidence governs the admissibility of expert testimony in the state, and provides as follows: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

•   the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

•   the testimony is based on sufficient facts or data;

•   the testimony is the product of reliable principles and methods; and

•   the expert has reliably applied the principles and methods to the facts of the case.

Brief Side Discussion

The Daubert case is another example of how cases that have no apparent relationship to child maltreatment cases can directly impact them. This has importance to your organization. Many organizations (with or without lawyers) review child maltreatment appellate cases that occur in their state. However, there are many other appellate cases, not involving child maltreatment trials that can impact CAC/MDT professionals because the rules of law announced in those cases can be applied to child maltreatment cases. The Daubert case was a civil case, not a criminal case.

A full analysis of the Daubert case is beyond the scope of this chapter. However, the important issue to be addressed was how stringent the rules of admissibility should be before expert testimony could be admitted. There were always gatekeeper rules, but the U.S. Supreme Court had to decide the standards to be applied to those rules. The standard (eventually decided in Daubert) had to have a dual purpose: providing guidelines when science and law intersected that were consistent with the search for the truth, while also ensuring that jurors were not improperly persuaded by those who touted their expertise in matters of scientific or technical issues, but really were not experts.

Taking that into consideration, you can look back at Arizona’s expert testimony statute (which incorporates the Daubert admissibility standards) and see whether you believe that balancing act was achieved. Regardless of whether you do, if you’re in Arizona (and many other states), you need to know that this is your law on the topic.

Turning now to today’s case, the state’s expert testified on such matters as behavioral characteristics of victims of child molestation; reasons why child molestation victims might delay reporting; and the different manners in which children who have been molested may make their disclosures.

[As is clear from the result in this Arizona appellate decision, such expert subject matters are admissible in Arizona so long as the proper foundation is laid for the testimony. It is critically important for you to understand whether such subject matter is likewise admissible in your state. In Georgia, for example, these are proper subjects for expert testimony, again so long as the proper foundation is laid. In other states, such testimony is prohibited.]

Based upon the state’s expert’s testimony, as discussed above, the Defendant raised three arguments that he hoped would result in the appellate court reversing based upon Daubert factors.

First, he targeted expert testimony that he termed general testimony, that is, testimony that is not drawn from the actual facts of the case. Specifically, the state’s expert testified about the behavioral characteristics of abused children generally rather than describing the child who was the alleged victim in the case.

However, the Arizona appellate court disagreed, stating that Arizona’s Rule 703 (based upon Daubert factors), does not prohibit generalized expert testimony simply on the basis that it is not rooted in the facts of the case. The appellate court noted that prior Arizona cases had allowed such generalized expert testimony about behavioral patterns of child victims so long as [the expert is] not commenting on accuracy, reliability, or credibility of a particular witness.

The second attack on the expert’s testimony was based upon the argument that it was unreliable because the expert’s methods were nonscientific. This would seem to have good appeal, if you viewed the Daubert factors in the strictest sense. And so the Defendant argued that, as it relates to the expert’s testimony, "there are no scientific methods to determine whether a child who alleges abuse is lying or telling the truth, and there is no scientific data regarding the presence