New Jersey Supreme Court Makes "Bad Law" in Child Abuse Case, Denigrating Our Constitutional Right to Confront Our Accusers (Part 1)
Part 1 of a 3-part series about the Right to Confrontation.
By Peter B. Paris
There is an old adage in the legal world that warns us, “BEWARE: Bad facts make bad law.” In other words, sometimes when “bad facts” occur, like a horrible crime or tragic event, policy-makers react with short-term legal “fixes” which end up having negative, unintended consequences down the road. It’s a little different from “throwing the baby out with the bath water,” but the effect is the same.
Typically, it is lawmakers who overreact to “bad facts.” After all, they are the ones fielding the angry phone calls and emails from constituents, demanding some concrete action that will “make sure [fill in the blank] never happens again.” To silence the phones and to refill the campaign coffers, legislators respond to the “bad facts” by drafting a new draconian law designed to prevent the “bad facts” from recurring. One prominent example of this is the crack/powder cocaine sentencing disparity that originally had some short term impact on the problem of crack distribution, but it did not stop the problem and mostly caused long term harm. Recently, the U.S. Sentencing Commission and the U.S. Supreme Court have criticized that “bad law.”
Enforcers of the law are also susceptible to making “bad law” in reaction to “bad facts.” Perhaps the best contemporary example is Michael Nifong, the prosecutor in the “Duke Rape Case.” Within hours after the “Duke Rape Case” story broke, vengeance was already in the air. Reporters spoke in dour tones about a racially motivated gang-rape over images of police-tape flapping in the breeze. Nifong, the local prosecutor, held daily press conferences in which he leaked new evidence and/or showed increasing outrage toward the accused. But, as the “bad facts” soon began to unravel, the “bad law” was revealed: Nifong had ignored and concealed critical evidence showing that the allegations were false, and he had done it in order to feed the public’s appetite for vengeance.
Imagine how it must have felt to be accused of such a horrific crime, knowing you were innocent. Imagine the police, the press, the prosecutor, and the public at large looking at you like a monster. Where do you turn in such a situation?
According to the Constitution, you turn to the courts. Especially when faced with “bad facts,” judges must remain the cold, clinical defenders of the Constitution -- the set of principles which require judges to treat every defendant as if he were wrongly accused. Judges must always force prosecutors to prove the State’s case beyond a reasonable doubt with reliable, admissible evidence. “Bad facts” enflame the public, make cops cut corners, and make prosecutors hide evidence. But, if our courts also succumb to the emotions aroused by “bad facts” and choose expediency over the rights of the wrongly accused, the Rule of Law has been lost.
The Toughest Witness of All: the Child-Accuser
Crimes involving child victims are a difficult subject to discuss. They occupy a special place in our hearts and minds. When we hear about an adult man being beaten or even killed, we are rarely upset. But when we hear of a child being hurt, especially at the hands of an adult, we all have a visceral reaction. And so it should be.
From a legal perspective, however, cases that involve child-accusers present unique challenges. For prosecutors, any case in which a child is the primary witness and source of evidence is extremely difficult to prove. This is especially so when the child is the accuser, and the crime is child abuse. The most notable dilemma for the prosecutor is whether to put the child-accuser on the witness stand. Obviously, prosecutors and family members do not want to re-traumatize the child by “forcing” the child to testify. But the big problem for prosecutors is that young children are, generally speaking, unreliable witnesses.
Although most young children are able to observe and report facts accurately, children at the center of abuse allegations are under immense pressure. It is unfortunately true that young children have been known to make things up, confuse real life with fantasy, or just get so caught up in a story and the attention that comes with it, that they feel they cannot go back and change it. It’s not that young children want to intentionally make false accusations against innocent people, or that they do so often. It’s just that a child’s mind can be a complicated place, and children do not always comprehend the gravity of misplaced accusations until it’s too late.
Because of the gravity of child abuse allegations and the relative unreliability of children as witnesses, accusations by children must always be closely examined. If the accused is guilty of the crime, the facts will bear that out. But, if a defendant is wrongly accused by a child, we must make sure to discover it, before we seek vengeance upon the accused. Thus, when deciding how a trial will be conducted and what evidence will be admitted, judges must always keep in mind the possibility that the defendant has been wrongly accused.
The Worst-Case Scenario
In a sense, the Constitution exists to protect the wrongly accused. Thus, perhaps the best way to analyze our Constitutional rights is to imagine oneself being wrongly accused. And, believe me, it happens. If it happened to you, how would you want the system to work?
Consider the following scenario. One afternoon, you are alone with your 4-year-old nephew throwing the ball around the yard. At some point, you throw the ball to him, but he doesn’t see it, and the ball clocks him in the head, knocking him down. There was no blood, but there was a bruise, and your nephew was crying and pretty shaken up. Ultimately, you pick him up, dust him off, bring him to his mom and tell her what happened. “It’s just a little bruise,” she says as she kisses your nephew’s forehead and sends him to go wash up for dinner. Other than the bruise, your nephew is fine.
When your nephew goes to school the next day, the teacher asks him what happened to his head. For some unknown reason, your nephew hesitates. The teacher immediately gets suspicious and asks your nephew, “Did a grown-up hurt you?” Your nephew follows the lead and says, “I hurt my head when I was with my uncle.” The teacher continues her leading questions, and asks, “Did your uncle hurt you?” Sensing the teacher’s anxiety, your nephew meekly says, “yes.” Within a couple of hours, a phalanx of social workers, police, and prosecutors descend upon your life. A criminal case against you has begun: you have been wrongly accused of abusing a child based on the child’s out-of-court statement to his teacher.
Ultimately, your fate rests heavily in the hands of the judge, who hopefully will not cringe at the allegations, or prejudge the facts. You hope your judge will hold the prosecutor’s feet to the fire, and dutifully force the State to prove all elements of its case beyond a reasonable doubt. And perhaps most important of all, you hope the judge will dispassionately guard your Constitutional rights, despite the temptation to make sure "justice" is done for the injured child. Even though you are entitled to expect these qualities in every judge, judges are human and can sometimes fall prey to the visceral reaction we all have when it appears that an adult has injured a child.
The Rules of Evidence and Your Constitutional Rights
One of our most precious Constitutional rights is the Right to Confrontation, which is a crucial part of our overall Right to Fair Trial. The Right to Confrontation means that every criminal defendant has a right to cross-examine his accuser. This right is rooted in the notion that depriving a person of liberty in this country is the most significant intrusion that the government can impose on someone. Accordingly, an accused person must, at the very least, receive a fair trial before losing his liberty. An integral part of a fair trial is to have the accuser make and defend the allegations under cross-examination, before a judge and jury, who will then assess the credibility of the accuser along with the other facts brought out in the trial.
One tool that judges use to protect our Constitutional rights is the Rules of Evidence. Although many Rules of Evidence appear to be hyper-technical, legal mumbo jumbo, the fundamental purpose for these rules is to ensure a fair trial by weeding out unreliable evidence and by requiring live witnesses to speak in open court about what they witnessed, so they can be cross-examined. In this way, the Rules of Evidence help secure our Constitutional Right to Confrontation.
Generally speaking, “hearsay,” or a statement made outside the courtroom, is not admissible at trial. This notion is predicated on the reality that people say a lot of things out on the street or in their homes that they won’t say while under oath. Such out-of-court statements can be highly unreliable, especially when reported by someone else. The Rules of Evidence deal with these out-of-court statements by requiring, most of the time, that the person who made the statement must come in to court, swear an oath, and submit to cross-examination before the statement can be used against an accused person.
But, like every rule, there are exceptions. Indeed, there are many exceptions to the hearsay rule. The gist of these hearsay exceptions is that the “hearsay statement” may be admissible because of some other reason that demonstrates its reliability. For example, there is the “dying declaration” or “death bed” exception. The scenario is as follows. A man was shot and is lying on his hospital bed. He knows he is going to die any minute. His sister comes into the hospital room and asks, “what happened?” The man replies, “Joe shot me,” and then he dies. He was the only witness to the shooting, other than the shooter. The sister tells the police what he said just before he died. The police then go arrest Joe, who later stands trial. Joe’s accuser, the victim, is “unavailable” to come into court to testify, because he is dead. But the prosecutor’s only evidence against Joe is the victim’s death bed statement, or “dying declaration.” Therefore, the prosecutor wants to be able to call the sister to the stand to testify about what the accuser said about Joe.
Typically, the Rules of Evidence would require the accuser to testify and be cross-examined about his hearsay statement: the accusation in the hospital bed that Joe shot him. But, there is the “dying declaration” exception in which a statement made by a person who knows he is dying, and later in fact dies, can be admitted as evidence in a trial by someone who heard the statement. The justification for this exception is that, even though the law usually requires a person to be subjected to cross-examination in court, a “dying declaration” usually is not fabricated and, therefore, is relatively reliable. Thus, even though the statement to the police officer is hearsay, it can be admitted under the “dying declaration” exception to the hearsay rule.
