New Jersey Supreme Court Makes "Bad Law" in Child Abuse Case, Denigrating Our Constitutional Right to Confront Our Accusers (Part 2)
Part 2 of a 3-part series about the Right to Confrontation.
The Historical Use of Exceptions to the Hearsay Rule to Erode the Right to Confrontation
In 1980, when the U.S. Supreme Court decided Ohio v. Roberts, the Right to Confrontation began its twenty-four year decline. In Roberts, the Supreme Court greatly expanded the use of out-of-court statements in trials by giving trial judges the discretion to admit out-of-court statements without a live witness, so long as the judge felt the overall circumstances indicated that the statement was reliable. Essentially, Roberts allowed the introduction of evidence on a case by case, judge by judge basis.
Despite the unreliability of children as witnesses, or perhaps because of it, child abuse prosecutions routinely went forward even though the child-accusers never testified. If the facts were “bad” enough, judges were able to use Roberts to protect child-accusers from cross-examination by allowing adults to testify for them. To cover their Constitutional tracks, judges cited Roberts and simultaneously stretched the boundaries of various established rules of evidence, such as the “excited utterance” exception.
In 2004, the U.S. Supreme Court recognized the problem it had created: the steady erosion of the Right to Confrontation, which in turn, caused an erosion of the Right to Fair Trial. The Justices reacted to this concern by issuing Crawford v. Washington, which was unanimously viewed as a watershed moment in Constitutional law, because it “changed” the Constitution from what people thought it had been for the past twenty-four years since Roberts. Crawford made some bold pronouncements but left a host of unanswered questions, some of which were later addressed in 2006 when the Court issued Davis v. Washington and Hammon v. Indiana.
By writing the Crawford opinion, the Court simultaneously resurrected the role of the Rules of Evidence in protecting our Right to Confrontation. The Court held that Roberts was wrong to permit the rampant use of hearsay evidence to convict people of crimes. In sum, the Court said that it was a violation of the Constitutional Right to Confrontation to admit “testimonial” hearsay evidence against an accused person, unless the maker of the statement has been subjected to cross-examination.
State and federal courts are now grappling with the implications of Crawford, in particular the definition of a “testimonial” statement. In Davis and Hammon, the Court provided much needed insight into the definition of the word “testimonial” by providing concrete examples. But, as the New Jersey Supreme Court recently proved in State v. Buda, more guidance is needed if the erosion of our Right to Confrontation is to be stopped.
State v. Buda: The New Jersey Supreme Court Continues to Use Hearsay Exceptions to Dilute Our Constitutional Right to Confrontation
On June 23, 2008, a majority of the New Jersey Supreme Court issued State v. Buda over a vigorous dissent, led by Justice Albin. The majority opinion’s logic was so flawed, and its legal reasoning so shallow, that it is obvious the majority lost sight of its duty of judicial neutrality in favor of making sure the conviction stood. In doing so, the Court again used the Rules of Evidence to degrade our right to confront and cross-examine our accusers.
In Buda, a young child accused a family member of abuse outside of court, but then never testified at the trial. Instead, an adult witness was permitted to testify about what the child had said. Defendant Buda was unable to cross-examine the child and was convicted in large part because of the child’s hearsay statement. The New Jersey Supreme Court used this and two other cases to illustrate the meaning of “testimonial” statements by studying Crawford, Davis and Hammon and issuing its own interpretation of those cases.
Background
Defendant Buda was the live-in boyfriend of the mother of N.M., a 4-year-old boy. Buda was not the biological father and was not married to N.M.’s mother, but N.M. nevertheless called the man “Daddy.” One day, while riding in the car with his mother, N.M. blurted out, “Daddy beat me.” The child’s mother was shocked to hear this, but did not quite believe the child. Later that day, another family member noticed hand marks on the child’s buttocks, but no official action was taken at that time.
A few months later, the mother noticed a red mark on the child’s neck. Frantic, the mother took N.M. to the hospital. After an examination, it was revealed that N.M had multiple injuries, causing the hospital staff to report possible child abuse to the police and state child welfare officials. Soon thereafter, police and child welfare officials responded to the hospital.
It was decided that the social worker would interview N.M. During questioning, N.M. twice stated that he was hurt when he fell down. When the social worker inquired further about how he fell, the child was silent. The social worker then prodded him, “Did anybody hit you? Did anybody beat you?” The child responded, “Daddy says nobody beat me. I fell when I was sleeping in my room.” Due primarily to this statement, Defendant Buda was subsequently arrested and charged with child abuse.
At trial, Buda testified in his own defense and denied the allegations. He also produced numerous witnesses who offered evidence contesting the allegations. Nevertheless, he was convicted of the charges.
The issues on appeal centered on the fact that N.M. did not testify during the trial, but his statements to his mother and the social worker were admitted into evidence through the testimony of people other than the child himself. The trial court acknowledged that N.M.’s statements were hearsay, but admitted the statements under the “excited utterance” exception to the hearsay rule. The court also decided that, even though Buda’s counsel would not be able to cross-examine N.M. in court, the admission of the statements did not violate Buda’s right to confrontation because they were not “testimonial” in nature. Both rulings are highly controversial, as evidenced by Justice Albin’s strong dissent, joined by two other Justices.
An Allegedly “Excited Utterance” Erodes Our Right to Confrontation
As we know, after Crawford, in order for an out-of-court statement to be admissible without cross-examination, the statement must fall into one of the exceptions to the hearsay rule and be “non-testimonial” in nature. In Buda, the New Jersey Supreme Court essentially held that, if a child discloses alleged abuse to a social worker several hours after the abuse occurred, that statement is an “excited utterance” that is not “testimonial.”
Stretching the “Excited Utterance” Exception to its Breaking Point
The Court found that the child’s statement to the social worker was admissible hearsay under the “excited utterance” exception. Even though the interview occurred hours after the abuse, and the child was safely in the hospital, the Court determined that the interview with the social worker was an “excited utterance,” defined as “a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition without the opportunity to deliberate or fabricate.” The rationale behind this exception is that “excitement [of an event] suspends the declarant’s powers of reflection and fabrication, consequently minimizing the possibility that the utterance will be influenced by self interest and therefore rendered unreliable.” In other words, if someone blurts out something right after an exciting event, it is unlikely that the statement is fabricated. Therefore, it can be admitted at trial under the “exited utterance” exception without cross-examining the person who said it.
The problem in this case is that the child-accuser in Buda was being interviewed hours after the event by a social worker. Although the child was certainly still upset about the incident, being upset is not an indicia of reliability strong enough to justify the admission of otherwise non-admissible hearsay. In sum, it is virtually unprecedented for a court to use the “excited utterance” exception when hours have elapsed since the startling incident in question.
