New Jersey Supreme Court Makes "Bad Law" in Child Abuse Case, Denigrating Our Constitutional Right to Confront Our Accusers (Part 3)
Part 3 of a 3-part series about the Right to Confrontation.
By Peter B. Paris
“Testimonial” or “Non-Testimonial”: That is the Constitutional Question
In Crawford, the Court’s key point was that, if the out-of-court statement was “testimonial,” it cannot be admitted in evidence without an opportunity to cross-examine the person who made the statement. But, the U.S. Supreme Court left the definition of “testimonial” for another day. That day came two years later in Davis and Hammon, in which the Court presented two competing examples of potentially admissible hearsay: one that was “testimonial” and another that was not.
On the one hand, Davis held that if a person is in immediate danger and calls 911 for help, the statements to the 911 operator are not “testimonial” because the person making the statement is simply seeking help, not expecting that their words will be used later in court. These words are also properly admitted under the “excited utterance” exception to the hearsay rule, if the danger exists while the person is on the phone with 911. Thus, statements that resemble the frantic 911 call in Davis are more likely to be admissible without needing the declarant to testify.
By contrast, Hammon involved statements given to an investigating police officer during a police investigation. Such statements were deemed to be clearly “testimonial” because most people realize that when they submit to an interview with a police officer, their statements are likely to be used later in court. Thus, under Hammon, if an out-of-court statement is made under circumstances that more resemble a police interview than a frantic 911 call, then the statement is “testimonial” and, accordingly, cannot be admitted without cross-examining the declarant.
N.M.’s statement to the social worker about the alleged abuse was made during the social worker’s interview, which is obviously more like a police interview than a frantic 911 call. However, the New Jersey Supreme Court surprisingly declared that N.M.’s statements to the social worker – made in response to leading questions by the social worker – were actually more like the spontaneous calls for help during the 911 call in Davis than the police interview in Hammon. This fiction allowed the Court to find the child-accuser’s statement to be “non-testimonial” and, thus, admissible.
This tenuous distinction allowed the conviction to stand. But, Justice Albin’s vigorous dissent exposes the transparently illogical reasoning that was apparently motivated by the Court’s desire to uphold the conviction of a child-abuser at the risk of eroding our Constitutional Right to Confrontation.
Justice Albin Presents an Example of “Bad Facts Making Bad Law”
New Jersey Supreme Court Justices often disagree. But rarely do three Justices accuse the other four of ignoring their duty of neutrality and dodging legal precedent in order to reach a certain result, i.e., making “bad law” from “bad facts.” In this case, Justice Albin made it very clear that the majority has made “bad law” from “bad facts.”
Justice Albin begins by accusing his colleagues of degrading the Constitution in the face of “bad facts” involving the abuse of a child:
Constitutional rights should not melt away when the accused is charged with a particularly vile crime, even when that crime is against a child. Evidence rules should not be placed in a state of suspended animation, even when a child victim evokes universal sympathy . . . Testimonial evidence, whether from the mouth of a child or an adult, must be subject to cross-examination.
Justice Albin then proceeded to explain several key facts of the case that the majority ignored in its opinion. These facts clearly showed why the child’s statement was clearly “testimonial,” despite the majority’s opposite conclusion. You will recall that the 911 call in Davis was an example of a “non-testimonial” statement. As Justice Albin wrote, “a [“non-testimonial”] statement relating to an ongoing emergency is a cry for help – a statement made for the purpose of stopping a crime in progress – not a [“testimonial”] narrative of a crime already committed that can be used in a future prosecution.” It seems obvious that the child in Buda provided a “narrative statement of a crime already committed,” not a 911-type of plea for emergency help. Clearly, according to the dissenters, the statement to the social worker was “testimonial.”
Justice Albin summed up the case with an unusually pointed condemnation of the majority’s decision to make “bad law:”
In this case, the State presented N.M.’s out-of-court testimonial statements as evidence against the defendant, without giving the defendant the opportunity to cross-examine him. The introduction of those statements contravened the Confrontation Clause. The result the majority reaches today, in its haste to uphold defendant’s conviction, is driven by a distorted analysis of the precedents of the United States Supreme Court and this Court.
Conclusion
State v. Buda marks a dark day for the New Jersey Supreme Court and all criminal defendants throughout the state. Hopefully, this case will reach the United States Supreme Court, which will almost certainly reverse it and remand for a new trial because the Buda decision clearly violates Crawford.
In the meantime, all defendants who face trials in which testimony might be admitted against them without cross-examination should vigorously contest the introduction of such evidence and file appeals in a timely fashion, if convicted.
If you face such a trial, or if you have been convicted after the State admitted evidence of someone’s statements who didn’t testify, your Constitutional Rights may have been violated. If so, contact Peter B. Paris, Esq. at Lependorf & Silverstein, P.C. for help.
