The Massachusetts Child Hearsay Statute and the Admissibility of NonTestimonial Out-of-Court Statements Describing Sexual Abuse

Thomas R. Finn*
I. INTRODUCTION In December 1990, Massachusetts enacted a special child hearsay exception, making admissible, in criminal proceedings, certain out-of-court statements of a child under ten describing an act of sexual contact on or with the child.1 This article addresses the admission of such child hearsay in Massachusetts when the Federal Confrontation Clause, as interpreted by Crawford v. Washington,2 does not demand the unavailability and prior cross-examination of the child. The Massachusetts child hearsay statute directs the proponent of a childs hearsay statement to establish both the unavailability of the declarant and that the statement bears indices of reliability comparable to those of firmly rooted hearsay exceptions.3 This child hearsay exception is best understood as a variation on the excited utterance exception.4 Unlike

* Professor of Law at Suffolk University Law School. Thanks are due to Suffolk University Law School for supporting this research. 1. MASS. GEN. LAWS ch. 233, 81 (1990). For clarity, this Article refers to the hearsay of the kind described in this statute as child hearsay though, of course, it is one of many categories of hearsay exceptions which might involve a child declarant. A childs outof-court statement could be admitted pursuant to traditional exceptions, e.g., those for spontaneous utterances, medical evaluation, and prior recorded testimony. When addressing those exceptions, the article will use the traditional, more specific labels. 2. 541 U.S. 36, 68 (2004). 3. MASS. GEN. LAWS ch. 233, 81(b)-(c). 4. Compare MASS. GEN. LAWS ch. 233, 81 (admitting statement if it bears indices of reliability), with Commonwealth v. Linton, 924 N.E.2d 722, 736 (Mass. 2010) (admitting a statement otherwise inadmissible as hearsay if it follows an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of an observer). See generally MARK S. BRODIN & MICHAEL AVERY, HANDBOOK OF

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the excited utterance exception, the special child hearsay exception does not require that the childs statement be made under the stress of or near in time to the event involving sexual contact.5 The rationale for this special child hearsay exception is that child victims of sexual abuse often delay disclosing the event until they are in a safe position to disclose to a trusted adult, rather than disclosing spontaneously in temporal or physical proximity to the event.6 It is also thought that very young children may fail to appreciate the significance of the sexual contact and thus, lack the stress or aggravation central to the spontaneous utterance exception.7 Unlike the rules for firmly rooted exceptions like those for spontaneous utterances and statements for medical diagnosis, the statute does not enumerate any particular conditions which guarantee reliability, leaving the matter to a case-by-case assessment of the time, content, and circumstances [surrounding the making of] the statement.8 This exception is grounded in the belief that child hearsay, depending upon the circumstances surrounding its delivery, can be as necessary and trustworthy as the traditional hearsay exceptions.9 Statements admitted pursuant to the
MASSACHUSETTS EVIDENCE 8.7, at 517-19 (8th ed. 2007) (collecting decisions on the spontaneous utterance exception, explaining that the declarant must be under stress of startling event); 2 JOHN E. B. MYERS, MYERS ON EVIDENCE IN CHILD, DOMESTIC AND ELDER ABUSE CASES 7.13, at 517-31 (4th ed. 2005 & Supp. 2009) (collecting decisions involving the spontaneous utterance exception in child abuse cases, explaining that the statement should be produced by and near in time to stressing event). 5. See People v. Zwart, 600 N.E.2d 1169, 1173-74 (Ill. 1992); State v. Carlson, 812 P.2d 536, 540 (Wash. Ct. App. 1991). The child hearsay exception can also be contrasted with the exception for statements for medical diagnosis. Commonwealth v. DeOliveira, 849 N.E.2d 218, 224 (Mass. 2006) (holding that exception generally does not extend to statements of children identifying the perpetrator of abuse). Contra 81(a) (stating that the child hearsay statute explicitly permits those statements). 6. See People v. Land, 609 N.E.2d 1010, 1022 (Ill. App. Ct. 1993) (finding that one acceptable explanation for delay in disclosure admitted as child hearsay was that the father under whose control child lived was the abuser); Zwart, 600 N.E.2d at 1172-73 (holding that three-year-olds delayed disclosure to mother was understandable, but child hearsay inadmissible for other reasons). 7. See United States v. Russell, 66 M.J. 597, 604-05 (A. Ct. Crim. App. 2008) (holding that five-year-old displayed no awareness that her statements regarding sexual contact might implicate defendant in any wrongdoing); Land, 609 N.E.2d at 1022 ([A] child-victim's [abusive] father ordinarily holds such an important and revered position in a child's life that the child victim of sex abuse rarely realizes that anything bad has happened.); cf. DeOliveira, 849 N.E.2d at 226 (holding that on admission of statement for medical evaluation, six-year-olds description of abuse did not even reveal a recognition of the criminality of defendants actions). 8. See 81(c) (stating that the time, content, and circumstances criteria for determining reliability are open-ended). 9. See Idaho v. Wright, 497 U.S. 805, 821-22 (1990) (describing reliability factors which are equivalent to those associated with firmly rooted hearsay exceptions); Russell,

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child hearsay statute in Massachusetts are admitted in the federal system pursuant to the residual exception to the hearsay rule.10 In 1990, the United States Supreme Court explicitly upheld the federal constitutionality of special child hearsay exceptions like those subsequently established by chapter 233, section 81 of the Massachusetts General Laws.11 Four years later, in Commonwealth v. Colin C., the Supreme Judicial Court implicitly upheld the state constitutionality of the child hearsay statute, as modified by Confrontation Clause requirements set out in the opinion.12 By 1995, the special child hearsay exception was recognized as viable in the federal judicial system13 and in most states.14 Over the ensuing decade, courts in Massachusetts and elsewhere analyzed the circumstances surrounding the delivery of the childs statements for indicia of reliability in accordance with the Federal Confrontation Clause analysis of Ohio v. Roberts15 and Idaho v. Wright16 and in accordance with similar, if not identical state confrontation clause analyses.17 In 2004, the Supreme Court altered the federal constitutional analysis when it held that the Federal Confrontation Clause required the prosecution, when the proponent of testimonial hearsay, to establish both

666 M.J. at 604-05 (holding child hearsay admissible after applying to five-year-olds statements, reliability factors of spontaneity, lack of prompting and motive to lie, and abnormal familiarity with sexual activity); Care & Protection of Rebecca, 643 N.E.2d 26, 33 (Mass. 1994) ([The child hearsay statute] embodies a legislative judgment that out-of-court statements made by young victims of sexual abuse may be evidence of significant value.). 10. See, e.g., United States v. Ellis, 935 F.2d 385, 393-94 (1st Cir. 1991) (admitting child hearsay pursuant to the residual exception to the ban on hearsay, then FED. R. EVID. 803(24), now FED. R. EVID. 807); cf. Wright, 497 U.S. at 811-12 (holding that child hearsay would have been admissible, if reliable, under Idahos residual hearsay exception, which was identical to the federal residual hearsay exception). 11. See Wright, 497 U.S. at 821-22 (holding that child hearsay would have been admissible if it had satisfied Courts reliability test, but it did not on those facts). 12. Commonwealth v. Colin C., 643 N.E.2d 19, 23-26 (Mass. 1994); see also MASS. CONST. art. XII (describing the Confrontation Clause); MASS. GEN. LAWS ch. 263, 5 (2008) (stating that the right to confrontation is also a statutory right). 13. See, e.g., Ellis, 935 F.2d at 393-94; United States v. Shaw, 824 F.2d 601, 609 (8th Cir. 1987) ([W]hile Congress intended the residual hearsay exception to be used very rarely and only in exceptional circumstances, . . . one such exceptional circumstance generally exists when a child abuse victim relates to an adult the details of the abusive events.). 14. See MYERS, supra note 4, 7.16, at 610 n.495 and accompanying text. 15. 448 U.S. 56, 63-66 (1980). 16. 497 U.S. at 814-15. 17. See MYERS, supra note 4, 7.20, at 630 (Regardless of language, most courts hold that confrontation rights under state constitutions are the same as the rights guaranteed by the Sixth Amendment. A few courts hold that state constitutions provide additional rights.).

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that the declarant was unavailable to testify at trial and that the defendant had previously enjoyed the opportunity to cross-examine the declarant regarding the statement.18 For testimonial hearsay, reliability was no longer a factor in the Federal Confrontation Clause analysis.19 For non-testimonial hearsay, there simply were no Confrontation Clause requirements.20 Given the critical nature of the characterization, it is not surprising that commentators and courts have addressed exhaustively the distinction between testimonial and non-testimonial hearsay.21 In 2006, the Supreme Court distinguished non-testimonial 911 calls from testimonial responses to police interrogations.22 The Court, in 2007, ruled that Crawford had no retroactive application on collateral review of a conviction resting in part on the admission of the testimonial oral and doll-playing statements of a child.23 In 2009, the Court held that state laboratory certificates of drug analysis constituted testimonial hearsay.24 The Massachusetts Supreme Judicial Court has likewise frequently focused on this governing distinction between what is and what is not testimonial hearsay,25 though it has never
18. Crawford v. Washington, 541 U.S. 36, 68-69 (2004). But see MASS. GEN. LAWS ch. 233, 81(c)(1) (2008). Under the Massachusetts child hearsay statute, there is an alternative to the reliability analysis. The statute permits admission of child hearsay when the trial court determines that the child is unavailable to testify at trial, and the hearsay was proclaimed under oath, accurately recorded, and subject to cross-examination. Id. Unlike Crawford, this provision applies to both testimonial and non-testimonial hearsay. Id. 19. Crawford, 541 U.S. at 68. 20. Id.; see also Whorton v. Bockting, 549 U.S. 406, 420 (2007) (holding that Crawford eliminated the need to consider the Confrontation Clause in the admission of nontestimonial hearsay); Davis v. Washington, 547 U.S. 813, 825 (2006) (holding that Crawford overruled Roberts); Commonwealth v. Gonsalves, 833 N.E.2d 549, 554 (Mass. 2005) (holding that non-testimonial hearsay is free of Federal Confrontation Clause limits). 21. See, e.g., MYERS, supra note 4, 7.22[B][4]-[5][g], at 637-47 (cataloguing hearsay by context as either testimonial or non-testimonial); Anna Richey-Allen, Note, Presuming Innocence: Expanding the Confrontation Clause Analysis to Protect Children and Defendants in Child Sexual Abuse Prosecutions, 93 MINN. L. REV. 1090 (2009) (collecting cases involving hearsay in child abuse prosecutions). 22. Davis, 547 U.S. at 826-31. 23. Whorton, 549 U.S. at 412-15. 24. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2542 (2009). 25. See, e.g., Commonwealth v. Vasquez, 923 N.E.2d 524, 527 (Mass. 2010) (finding laboratory drug analysis certificate is testimonial); Commonwealth v. Galicia, 857 N.E.2d 463, 470-71 (Mass. 2006) (holding that excited utterances to 911 dispatcher were nontestimonial; ensuing statements to responding officers were testimonial); Commonwealth v. DeOliveira, 849 N.E.2d 218, 220-21 (Mass. 2006) (holding that childs statement for medical evaluation was non-testimonial but identification of perpetrator was testimonial); Gonsalves, 833 N.E.2d at 560-62 (concluding that victims statements to police officer were testimonial; those to mother were non-testimonial); David A. Lowy & Katherine Bowles Dudich, After Crawford: Using the Confrontation Clause in Massachusetts Courts, 12 SUFFOLK J. TRIAL & APP. ADVOC. 1, 2-3 (2007) (surveying Massachusetts hearsay decisions

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addressed the issue in a decision involving the child hearsay exception. As challenging and important as is the characterization of hearsay as testimonial or not, it is not the goal of this Article to survey the child hearsay decisions for that characterization. This Article focuses on the requirements for admission of child hearsay in criminal trials when not subject to Federal Confrontation Clause limits articulated by Crawford. Certainly, the admission of such hearsay must continue to satisfy current statutory criteria.26 Beyond that, there are several outstanding questions: (1) are there federal due process limits which might attach to the admission of such hearsay; (2) does the state confrontation clause still limit the admissibility of child hearsay; and (3) are there state due process requirements which apply in the absence of, or in addition to, state confrontation clause limits?
II.

CHILD HEARSAY NOT GOVERNED BY CRAWFORDS REQUIREMENT OF UNAVAILABILITY AND PRIOR CROSS-EXAMINATION

There is, of course, no point to explicating a standard for admitting nontestimonial child hearsay if such hearsay statements are invariably testimonial. While no Massachusetts decisions address the distinction between testimonial and non-testimonial hearsay admitted pursuant to chapter 233, section 81 of the Massachusetts General Laws, it is safe to conclude that a significant number of the statements which satisfy the child hearsay exception would be non-testimonial. Numerous decisions from other jurisdictions have characterized childrens out-of-court statements in a variety of contexts as nontestimonial.27 Courts typically deem childrens statements to their parents, grandparents, foster parents, teachers, and friends non-testimonial.28 Courts have often characterized hearsay delivered to social workers and case aides as non-testimonial, though formal statements to social services investigators and forensic interviewers at child advocacy centers are more often found to be testimonial.29 Statements made by children to police during 911 calls and to civil authorities during child abuse hotline calls would be non-testimonial.30 Massachusetts decisions, characterizing hearsay as testimonial or not, support the conclusion that a childs disclosure and description of abuse to
post-Crawford). 26. Crawford v. Washington, 541 U.S. 36, 68 (2004). 27. MYERS, supra note 4, 7.22[B][5][a]-[f], at 638-46 and cases cited therein. 28. Id. 7.22[B][5][a], at 638-39 and cases cited therein. 29. See Brian Fox, Note, Crawford at Its Limits: Hearsay and Forfeiture in Child Abuse Cases, 46 AM. CRIM. L. REV. 1245, 1253 (2009); MYERS, supra note 4, 7.22[B][5][d]-[e], at 644-46 and cases cited therein. 30. MYERS, supra note 4, 7.22[B][5][c], at 643-44 and cases cited therein.

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those other than law enforcement will typically be non-testimonial31 and that an emergency disclosure to law enforcement would typically be nontestimonial.32 Again, the intention here is not to survey the range of child hearsay statements to fix whether they are testimonial or not, but rather to suggest that much of the child hearsay will be non-testimonial, so it is worthwhile to ascertain the test for its admission. In addition to non-testimonial hearsay, some testimonial child hearsay is also admissible free of Federal Confrontation Clause constraints. Two such situations are worth mentioning here, though the test for admission in each is well-established and thus not central to this article. When a defendant engages in conduct with the effect and intention of rendering a potential witness unable to testify, he forfeits his right to challenge the admission of testimonial and non-testimonial hearsay.33 Since objections are forfeited, the test for admission in such situations is not derived from the rules of evidence or from federal or state confrontation guarantees,34 though there may be constitutional due process limits.35 The forfeiture doctrine would have particular relevance in the prosecution of child sexual abuse.36 For forfeiture to occur, it would not be sufficient that a defendant is charged with intentionally injuring a child who then cannot testify. The defendant would have to have the specific purpose to create physical or emotional trauma, the latter by intimidation, for example,

31. See, e.g., Commonwealth v. Lao, 877 N.E.2d 557, 566 (Mass. 2007) (holding that statement of the child to relative was non-testimonial); Commonwealth v. DeOliveira, 849 N.E.2d 218, 220 (Mass. 2006) (holding that most of childs statements to an emergency room pediatrician were non-testimonial); Commonwealth v. Gonsalves, 833 N.E.2d 549, 561-62 (Mass. 2005) (holding that childs responses to mothers questions were nontestimonial). 32. See, e.g., Commonwealth v. Simon, 923 N.E.2d 58, 74-75 (Mass. 2010) (holding that most of the statements during 911 call were non-testimonial); Commonwealth v. Nesbitt, 892 N.E.2d 299, 309 (Mass. 2008) (holding that statements to police in emergency were non-testimonial); Commonwealth v. Galicia, 857 N.E.2d 463, 470 (Mass. 2006) (holding that statements to police dispatcher reporting circumstances of emergency were non-testimonial). 33. See Giles v. California, 128 S. Ct. 2678, 2683, 2693 (2008) (holding that testimonial hearsay is not subject to forfeiture doctrine absent proof that defendant procured witnesss silence by acting with purpose to prevent witnesss testimony); Commonwealth v. Edwards, 830 N.E.2d 158, 170-72 (Mass. 2005) (recognizing doctrine of forfeiture extends to defendants securing declarants unavailability by collusion with declarant, on admission of grand jury testimony). 34. Giles, 128 S. Ct. at 2686; Edwards, 830 N.E.2d at 170. 35. Edwards, 830 N.E.2d at 170 n.21. 36. See MYERS, supra note 4, 7.25, at 660 (explaining that the doctrine arises in child abuse prosecutions); see also Fox, supra note 30, at 1261-64 (stating that few appellate decisions on forfeiture involve child declarants, but that the doctrine arises in child abuse prosecutions).

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defeating the childs ability to testify.37 States are free to develop a different forfeiture doctrine for non-testimonial hearsay, because the Federal Confrontation Clause would be inapposite.38 Massachusetts has not distinguished between testimonial and non-testimonial hearsay in the application of the forfeiture doctrine.39 Crawford also permits admission of testimonial child hearsay, free of Federal Confrontation Clause constraints, when the child testifies at trial, subject to cross-examination.40 The test for admission of such hearsay would be derived from the hearsay rules themselves and perhaps federal and state due process principles. However, chapter 233, section 81 of the Massachusetts General Laws requires unavailability,41 rendering moot the development of a test for the admission of child hearsay when the declarant actually testifies at trial.
III.

FEDERAL CONSTITUTIONAL LIMITS APART FROM THE CONFRONTATION CLAUSE

Before addressing the state statutory and constitutional limits on the admission of non-testimonial child hearsay, it is worth briefly mentioning the possibility that there will be limits recognized as arising from a federal source other than the Confrontation Clause.42 Could a childs nontestimonial hearsay be so unreliable or admitted pursuant to such an unfair

37. See Giles, 128 S. Ct. at 2693 (holding that a charge of homicide causing unavailability was insufficient; the killing would have to have been motivated by an intent to procure inability to testify); United States v. Marchesano, 67 M.J. 535, 541-45 (A. Ct. Crim. App. 2008), rev. denied, 67 M.J. 371 (C.A.A.F. 2009) (holding that purpose to procure potential child witnesss inability to testify must be shown to establish forfeiture); In re Rolandis G., 902 N.E.2d 600, 614-17 (Ill. 2008) (holding that the forfeiture doctrine recognized but not established where intent to procure silence not proven). 38. Giles, 128 S. Ct. at 2693. 39. Edwards, 830 N.E.2d at 170-72. 40. Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004); see Commonwealth v. Mattei, 892 N.E.2d 826, 829 (Mass. App. Ct. 2008), revd on other grounds, 920 N.E.2d 845 (Mass. 2010) (relating that where the victim was available for cross-examination, admission of a recording of the victim's telephone call for emergency assistance did not violate Crawford); State v. Perry, 275 S.W.3d 237, 242-44 (Mo. 2009) (providing that where the declarant testified at trial, admission of testimonial hearsay did not violate Crawford). 41. MASS. GEN. LAWS ch. 233, 81(b) (2008). 42. To be of consequence in state criminal prosecutions, the federal source would have to be a constitutional provision and not merely a new federal rule. See Daniel J. Capra, Amending the Hearsay Exception for Declarations Against Penal Interest in the Wake of Crawford, 105 COLUM. L. REV. 2409, 2417 (2005) (exploring adjustments to the federal hearsay exception in light of Crawford and acknowledging the absence of an impact on state rules).

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process as to contravene federal due process guarantees?43 It has been suggested that the reliability inquiry central to Roberts44 and Wright45 could be adopted by the Supreme Court for non-testimonial hearsay, as a due process matter, to fill the vacuum left by Crawford.46 However, the Supreme Court has been disinclined to use the Due Process Clause to extend rights beyond those specific guarantees enumerated in the Bill of Rights.47 The Court has observed that judges are to determine only whether challenged actions violate fundamental conceptions of justice which lie at the base of our civil and political institutions.48 The Court has warned that judges are not to define due process to impose on law enforcement officials our personal . . . notions of fairness [nor] to disregard the limits that bind judges in their judicial function.49 Whatever might be the development of federal due process reliability limits on the admission of child hearsay, it is implausible that those limits will be any tighter than the limits articulated in chapter 233, section 81 of the Massachusetts General Laws.50 The critical question, then, is what the test for admission of non-testimonial child hearsay is under Massachusetts statutory and constitutional law.

43. Due process is guaranteed to defendants in criminal cases by the Sixth Amendment, made applicable to the states by the Fourteenth Amendment. KATHLEEN M. SULLIVAN & GERALD GUNTHER, CONSTITUTIONAL LAW 339, 360 (16th ed. 2007). 44. Ohio v. Roberts, 448 U.S. 56 (1980). 45. Idaho v. Wright, 497 U.S. 805 (1990). 46. Jules Epstein, Avoiding Trial by Rumor: Identifying the Due Process Threshold for Hearsay Evidence After the Demise of the Ohio v. Roberts Reliability Standard, 77 UMKC L. REV. 119, 120-23 (2008) (suggesting a due process requirement for sufficient reliability for all hearsay exceptions). The reliability test would be particularly important for those modern exceptions which pre-Crawford were treated as presumptively unreliable. See Wright, 497 U.S. at 818 (finding child hearsay is not a firmly rooted exception, and thus, is presumptively unreliable). By contrast, firmly rooted exceptions have historically been treated as having sufficient guarantees of reliability by their own terms. See White v. Illinois, 502 U.S. 346, 357 (1992) (noting the constitutional reliability inquiry, independent of the rules inquiry, is unnecessary for the spontaneous utterance exception). 47. Dowling v. United States, 493 U.S. 342, 352 (1990). 48. Mooney v. Holohan, 294 U.S. 103, 112 (1935) (citing Hebert v. Louisiana, 272 U.S. 312, 316-17 (1926)). 49. United States v. Lovasco, 431 U.S. 783, 790 (1977) (quoting Rochin v. California, 342 U.S. 165, 170 (1952)). 50. MASS. GEN. LAWS ch. 233, 81 (2008). In the next section, this Article notes that the Massachusetts statute itself requires guarantees of reliability commensurate with Wrights formerly controlling federal Confrontation Clause requirements. Consequently, federal due process guarantees which merely match the Wright requirements would not impact the admissibility of child hearsay in Massachusetts.

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STATUTORY AND STATE CONFRONTATION CLAUSE LIMITS UNDER COLIN C.

Because the Massachusetts courts have not addressed the admission of child hearsay since before Crawford, one must begin to divine the test for admission with a summary of the statute51 and the pre-Crawford decision, Commonwealth v. Colin C.52 In that decision, the court reversed a juveniles delinquency finding on several counts of child sexual abuse because the trial court improperly admitted expert testimony.53 In dicta, the court, in order to provide guidance for the retrial, exhaustively analyzed the child hearsay statutes requirements, identified which of the statutory limits also emanated from the state confrontation clause, and described those additional requirements which were solely confrontation clause limits.54 The opinion is regarded as upholding the constitutionality of admitting child hearsay so long as it honors both the statutory limits and the additional constitutional requirements outlined in the opinion.55 At issue in Colin C. was the admissibility of out-of-court statements a six-year-old child made to his mother disclosing acts of sexual abuse, detailing the circumstances under which they occurred, and identifying the perpetrator.56 During the course of the trial, the judge determined that the child was not competent to testify because he was not capable of articulating the consequences of lying.57 Subsequently, the judge conducted a voir dire hearing to determine whether the hearsay statements . . . should be admitted . . . .58 The childs mother testified at this hearing regarding the circumstances surrounding the disclosures, and that she had taken extensive notes while the child made the disclosures, then recorded his statements in a journal.59 The trial court found that, while not admissible as spontaneous utterances since not delivered under undue stress from the event, the statements had sufficient indices of reliability to justify their admission pursuant to chapter 233, section 81 of the Massachusetts General Laws.60 On review, the Supreme

Id. 643 N.E.2d 19 (Mass. 1994). Id. at 22-23. Id. at 23-26. Adoption of Quentin, 678 N.E.2d 1325, 1331 (Mass. 1997); Commonwealth v. Joubert, 647 N.E.2d 1238, 1241 (Mass. 1995). 56. Colin C., 643 N.E.2d at 21-22. 57. Id. at 22. 58. Id. 59. Id. The clarity with which a statement is preserved is a long-standing indicator of reliability. See generally Opinion of the Justices to the Senate, 547 N.E.2d 8, 12 (Mass. 1989). 60. Colin C., 643 N.E.2d at 22.

51. 52. 53. 54. 55.

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Judicial Court addressed each requirement of the statute and those requirements emanating from the state confrontation clause.61 A. Declarants Age; Subject Matter of the Statement Chapter 233, section 81 of the Massachusetts General Laws authorizes the admission, in criminal proceedings, of statements of children under the age of ten describing . . . sexual contact performed on or with the child, the circumstances under which [the contact] occurred, and the identity of the perpetrator.62 The court in Colin C. did not address these requirements in confrontation clause terms, making no suggestion that a broader statute, for example, one which applied to older children, to non-victim witnesses, or to non-sexual abuse events, would contravene the state confrontation clause.63 B. Most Probative Evidence The statute requires that the statement offered as evidence of a material fact [must be] more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts . . . .64 Colin C. did not explore this requirement.65 C. Recipient Must Testify The statute also dictates that the individual who heard the child make the statement and through whom the statement is admitted must testify at trial.66 Again, Colin C. did not address this provision.67 D. Notice Chapter 233, section 81 of the Massachusetts General Laws contains no explicit requirement that the Commonwealth give a defendant prior notice of its intention to offer child hearsay.68 A form of prior notice is inherent in the statutory requirement of pre-admission hearings on unavailability and reliability.69 The court appeared to demand something more as a confrontation clause matter, that being, notice sufficient to afford the

61. 62. 63. 64. 65. 66. 67. 68. 69.

See id. at 23-26. MASS. GEN. LAWS ch. 233, 81(a) (2008). See Colin C., 643 N.E.2d at 23-26. MASS. GEN. LAWS ch. 233, 81(a). See Colin C., 643 N.E.2d at 23-26. MASS. GEN. LAWS ch. 233, 81(a). See Colin C., 643 N.E.2d at 23-26. See MASS. GEN. LAWS ch. 233, 81. MASS. GEN. LAWS ch. 233, 81(b)-(c).

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defendant a meaningful opportunity to respond to hearsay allegations.70 This notice requirement is akin to that of the residual exception in the Federal Rules of Evidence.71 E. Unavailability Chapter 233, section 81(b) of the Massachusetts General Laws requires the proponent of child hearsay to demonstrate a diligent and good faith effort to produce the child to testify and bear the burden of establishing unavailability. Colin C. makes that statutory provision a confrontation clause requirement when the Commonwealth is the proponent.72 The statute defines unavailability in traditional terms, i.e., death or debilitating illness or injury, lack of memory of the incident, inability to find or produce the witness, and privilege against testifying.73 The statute further stipulates that unavailability is established by demonstrating that the child is not competent to testify74 or that, based on expert testimony, testifying would likely cause the child severe psychological or emotional trauma.75 The court added, as a confrontation clause standard, that when trauma is the basis for unavailability, the Commonwealth must show, by more than a mere preponderance of the evidence, that the admission of hearsay is necessary to avoid severe and long-lasting trauma to the child.76 F. Reliability Hearing on the Record: Specific Findings The statute envisions the trial judge conducting a hearing in advance of admission of child hearsay to determine reliability and that, unless inconsistent with the best interests of the child, the judge should meet the child.77 Colin C. confirms that the separate hearing is a confrontation clause requirement and adds that the separate hearing must be on the record, that the judges determination be supported by specific findings, and that, where possible without causing severe emotional trauma to the child, the defendant and defense counsel should be invited to the hearing.78

Colin C., 643 N.E.2d at 25. See FED. R. EVID. 807 (stating proponent of hearsay must notify opponent in advance of trial of intention to offer the statement and the particulars of it, including the name and address of declarant). Since Colin C. imposes this requirement as a Confrontation Clause matter, it binds the Commonwealth, but not the defendant when the defendant is the proponent of child hearsay. See Colin C., 643 N.E.2d at 25. 72. Colin C., 643 N.E.2d at 24. 73. MASS. GEN. LAWS ch. 233, 81(b)(1)-(4). 74. MASS. GEN. LAWS ch. 233, 81(b)(6). 75. MASS. GEN. LAWS ch. 233, 81(b)(5). 76. Colin C., 643 N.E.2d at 25. 77. MASS. GEN. LAWS ch. 233, 81(c)(2). 78. Colin C., 643 N.E.2d at 25.

70. 71.

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The court goes considerably beyond the statute to declare that the trial judge should conduct a separate hearing, perhaps taking expert testimony, on whether the defendants and defense counsels presence at the reliability hearing would severely traumatize the child witness.79 G. Reliability Determination The statute divides the reliability inquiry into four parts. In the first, a judge may consider whether the recipient of the hearsay documented the child witnesss statement.80 While Colin C. is silent with respect to this requirement, it has long been a feature of the confrontation clause reliability analysis.81 In the second of the statutory criteria, a judge must consider the childs capacity, at the time of making the statement, to observe, remember, and give expression to what the child had experienced; a finding under this provision must be supported by expert testimony from a treating psychiatrist, psychologist, or clinician.82 Because the consideration is mandatory, the use of expert testimony in reliability hearings on child capacity at the time of the statement is also mandatory. Colin C. describes the requirement of expert testimony on child capacity as absolute, albeit not based on the confrontation clause.83 While Colin C. says nothing specifically about the constitutional basis for consideration of the childs capacity, that consideration is a traditional feature of the confrontation clause reliability inquiry.84 The third statutory criterion for the judges reliability finding is also mandatory: that the judge consider the time, content, and circumstances of the statement.85 Colin C. also identifies consideration of the time, content, and circumstances as an essential ingredient of state confrontation clause analysis.86 Reliability factors include, among others, the spontaneity and
Id. 81(c)(2). Opinion of the Justices to the Senate, 547 N.E.2d 8, 12 (Mass. 1989); Commonwealth v. Bohannon, 434 N.E.2d 163, 171-72 (Mass. 1982). 82. 81(c)(2)(i). 83. Colin C., 643 N.E.2d at 25 n.8. 84. MYERS, supra note 4, 7.16[B], at 590; see, e.g., United States v. Friedman, 593 F.2d 109, 119 (9th Cir. 1979) (finding that declarants capacity for perception, memory, narration, and clarity of recording militate in favor of finding reliability under residual exception to the federal hearsay rule). 85. 81(c)(2)(ii). 86. See Colin C., 643 N.E.2d at 24 (failing to explore the kind of facts which matter in a time, content and circumstances review); Commonwealth v. Joubert, 647 N.E.2d 1238, 1241 (Mass. App. Ct. 1995) (reciting the same statutory reliability considerations on the admission of child hearsay in probation revocation hearings, but also providing little guidance for the identification and weighing of salient time, content and circumstances
79. 80. 81.

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consistency of the childs statements, the absence of leading and suggestive questions, a motive to fabricate, and the childs developmentally inappropriate knowledge and terminology.87 The fourth statutory criterion is that the court must consider the childs sincerity and ability to appreciate the consequences of such statement.88 The court observed that a childs lack of comprehension of the consequences of lying, revealed in a competency hearing at the time of trial, casts doubt on the reliability of earlier hearsay.89 The court connected this criterion with the findings related to unavailability grounded on incompetence. It advised, apparently to reflect confrontation clause principles, that even if the reasons for incompetence do not render the childs statement inadmissible as unreliable, the trial judge ought to share his or her reasons for finding incompetence with the jury.90 H. Corroboration As previously discussed, chapter 233, section 81 of the Massachusetts General Laws does not require that there be independently admitted evidence that corroborates the child hearsay. Colin C. advises that the state confrontation clause imposes that requirement.91 Corroborating evidence is not considered as part of the reliability determination, but provides an additional guarantee of trustworthiness justifying the admission of statements otherwise bearing sufficient indices of reliability.92 Factors which corroborate child hearsay include, among others, medical or physical evidence of victims abuse, victims developmentally unusual sexual knowledge, and sexually explicit behavior.93 Other factors include eyewitness testimony, a defendants opportunity to commit the act, and admissions made by the defendant.94 As is evident from the illustrations of corroborating evidence, some independent evidence would corroborate a childs statement that sexual contact occurred; for example, a medical examination, without having any

facts). 87. Idaho v. Wright, 497 U.S. 805, 821-22 (1990) (citing specific cases per factor); MYERS, supra note 4, 7.16, at 590-613 (citing cases that explore twenty-one different reliability factors). 88. 81(c)(2)(iii). 89. Colin C., 643 N.E.2d at 25. 90. Id. at 25 n.10. 91. Id. at 25-26. 92. Id.; see MYERS, supra note 4, 7.16[D][2], at 615-17 (noting states sometimes require corroborating evidence to fulfill this role). 93. Care & Protection of Rebecca, 643 N.E.2d 26, 33 (Mass. 1994). 94. MYERS, supra note 4, 7.16[C], at 609-14 (citing cases cited therein providing examples of independent evidence which corroborates child hearsay).

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tendency to corroborate that childs identification of a perpetrator.95 Some evidence corroborates the identification of a perpetrator; for example, defendants access to the victim, but would not specifically corroborate a hearsay statement describing sexual contact.96 Colin C. merely recites the requirement that the child hearsay be corroborated without addressing whether each of the subject areas within that hearsay must be corroborated.
V.

MASSACHUSETTS CONFRONTATION CLAUSE LIMITS AFTER CRAWFORD

The Supreme Judicial Court has not announced whether it will harmonize its state confrontation clause analysis with Crawfords federal analysis with respect to the admission of non-testimonial hearsay.97 If the court were to harmonize its state confrontation clause analysis with Crawford, then those Colin C. requirements which rested solely upon the state confrontation clause would be eliminated as limits on the admission of non-testimonial child hearsay. On the other hand, nothing prevents the court from rejecting the Crawford majoritys reasoning and reaffirming its pre-Crawford confrontation clause jurisprudence as a matter of state law. If it does that, it must nevertheless honor Crawford with respect to testimonial hearsay. Colin C. would control the admission of nontestimonial hearsay. A number of post-Crawford Massachusetts decisions, addressing the admissibility of forms of hearsay other than child hearsay, have stated that the Massachusetts and Federal Confrontation Clause requirements are coextensive98 or that the Massachusetts Confrontation Clause offers defendants no greater protection than does the Federal Confrontation Clause.99 In so observing, the court may be signaling its wholesale adoption of the Crawford reasoning as appropriate for the state confrontation clause analysis. In other words, with respect to nontestimonial hearsay, the court may be saying that the Massachusetts
95. See Opinion of the Justices to the Senate, 547 N.E.2d 8, 16 (Mass. 1989) (expressing this reservation regarding the capacity of corroborating evidence to bolster trustworthiness). 96. Id. 97. It is true that in Commonwealth v. Gonsalves, after determining that the childs spontaneous utterance was non-testimonial, the Court simply said, Only the Commonwealths rules of evidence would apply. 833 N.E.2d 549, 562 (Mass. 2005). This Article takes the position that this cryptic statement begs the question whether the Commonwealths rules of evidence include only the common law and statutory rules governing evidence or also include the state constitutional rules governing hearsay evidence. 98. E.g., Commonwealth v. Linton, 924 N.E.2d 722, 737 n.11 (Mass. 2010); Commonwealth v. Simon, 923 N.E.2d 58, 72 n.9 (Mass. 2010); Commonwealth v. Lao, 877 N.E.2d 557, 563 (Mass. 2007). 99. E.g., Commonwealth v. Tang, 845 N.E.2d 407, 411 n.6 (Mass. App. Ct. 2006).

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Confrontation Clause offers no greater protection than does the Federal Confrontation Clause, which offers no protection at all. In other post-Crawford decisions, the Supreme Judicial Court has qualified its language regarding whether the state confrontation clause analysis mirrors the federal analysis in Crawford. In Commonwealth v. King, the court stated that the state and Federal Confrontation Clause analyses were the same, but added in this context.100 In Commonwealth v. DeOliveira, rather than firmly concluding that the federal and state confrontation clause analyses were identical, the court cited pre-Crawford precedent holding the analysis to be coextensive, but added that the defendant in the case had presented no independent argument that would persuade us to change this view.101 In Commonwealth v. Sena, the court acknowledged that the state approach to admitting prior recorded testimony, with its focus on reliability, was somewhat different from the federal approach.102 The language in these decisions suggests that the Supreme Judicial Court is reserving for itself the liberty to employ state confrontation clause limits in addition to the Crawford requirements.103 The Supreme Judicial Court has continued to acknowledge, postCrawford, that its state confrontation clause limits will exceed those of the Federal Confrontation Clause as to taking a childs recorded trial testimony out of defendants presence.104 The court has explained, however, that such rulings do not focus on the admissibility of hearsay or the role of crossexamination, but rather the defendants paramount fundamental right to be in the childs presence when the child delivers trial testimony.105 Consequently, these rulings do not answer, one way or the other, whether there remain state confrontation clause limits on the admission of nontestimonial child hearsay. In 1994, the Supreme Judicial Court crafted its confrontation clause requirements in Colin C. without citation to, and imposing limits distinguishable from, those federal limits on child hearsay announced four years earlier by the Supreme Court in Wright.106 Missing from Colin C.

Commonwealth v. King, 834 N.E.2d 1175, 1193 (Mass. 2005). Commonwealth v. DeOliveira, 849 N.E.2d 218, 222 n.1 (Mass. 2006). Commonwealth v. Sena, 809 N.E.2d 505, 514 n. 10 (Mass. 2004). See generally Elizabeth O. Brown, Note, Massachusetts Paves the Way: A Comparison Between the Confrontation Right Guaranteed by the United States and Massachusetts Constitutions in Light of Crawford v. Washington, 41 SUFFOLK U. L. REV. 63, 86 (2007) (noting that Massachusetts has historically accorded defendants greater confrontation rights than the Federal Constitution). 104. E.g., Commonwealth v. Edwards, 830 N.E.2d 158, 168 (Mass. 2005) (citing Commonwealth v. Whelton, 696 N.E.2d 540, 545 (Mass. 1998)). 105. Id. 106. Idaho v. Wright, 497 U.S. 805 (1990).

100. 101. 102. 103.

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was the courts usual statement in its opinions on hearsay, that federal and state confrontation clause limits were roughly equivalent.107 Colin C.s corroboration requirement, adopted in the face of Wrights explicit rejection of it as a feature of federal law, indicated the courts preference for greater confrontation rights than those afforded at the time by the Federal Constitution.108 It would be a major departure from its state confrontation clause jurisprudence for the court to abandon its focus on the trustworthiness of a declarants statement in the admission of child hearsay. This is not, however, to suggest that the Supreme Judicial Court could single out child hearsay for continued confrontation clause testing for reliability, yet accept Crawfords reasoning for other forms of hearsay. If the court accepts the basic premise of Crawford as applying to the state confrontation clause, that is that the confrontation guarantees are not concerned with the reliability of hearsay, it should accept that premise for all forms of hearsay. As to its core concerns, the state confrontation clause does not distinguish any one form from other forms of hearsay.
VI.

STATE CONSTITUTIONAL LIMITS APART FROM THE CONFRONTATION CLAUSE

If the Supreme Judicial Court harmonizes its confrontation clause treatment of child hearsay with the federal treatment, non-testimonial child hearsay will be admissible pursuant to chapter 233, section 81 of the Massachusetts General Laws, free of the state confrontation clause limits described in the previous section. That leaves open the question whether the court will impose limits on the admissibility of child hearsay based on other state constitutional provisions. Earlier in this Article, I concluded that any federal due process limits which might be imposed on the admission of non-testimonial child hearsay would not be more restrictive than the requirements on the face of chapter 233, section 81 of the Massachusetts General Laws. The parallel conclusion as to Massachusetts due process limits is not so certain. The question is whether the right to due process in criminal proceedings affords protections commensurate with those identified by Colin C., and if not, what lesser protections it might extend. On a number of occasions, Massachusetts decisions have suggested that there are due process limits to

107. See Commonwealth v. Linton, 924 N.E.2d 722, 737 n.11 (Mass. 2010); Commonwealth v. Simon, 923 N.E.2d 58, 72 n.9 (Mass. 2010); Commonwealth v. Lao, 877 N.E.2d 557, 563 (Mass. 2007); Commonwealth v. DeOliveria, 849 N.E.2d 218, 221 n.1 (Mass. 2006); Commonwealth v. King, 834 N.E.2d 1175, 1193 (Mass. 2005); Sena, 809 N.E.2d at 514 n.10; Commonwealth v. Tang 845 N.E.2d 407, 411 n.6 (Mass. App. Ct. 2006). 108. Wright, 497 U.S. at 805-06.

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the admission of hearsay in criminal trials.109 There has been little development of state due process criteria for the admission of hearsay at criminal trials because admissibility has traditionally been treated as a matter governed by the more specific confrontation clause in Article 12 of the Declaration of Rights.110 Defendants in criminal trials have a fundamental right to a fair trial, and that right is likely broad enough to guarantee some degree of protection from untrustworthy child hearsay or hearsay admitted in a manner defeating a defendants ability to respond to, or appeal from, its admission. Because the due process rights of criminal defendants opposing hearsay are not well developed, it is instructive to review the law governing the admission of child hearsay in other proceedings. Child hearsay is admissible, pursuant to chapter 233, section 81 of the Massachusetts General Laws, in criminal proceedings like probation revocation hearings, in which the defendant does not enjoy confrontation clause rights.111 In such hearings, defendants enjoy due process rights which are not necessarily coextensive with due process or confrontation rights enjoyed by defendants in criminal trials.112 In the sole Massachusetts appellate decision, which addresses the admission of child hearsay in a probation revocation hearing, the court held that the statutory criterions were not satisfied.113 Consequently, the court did not delineate the due process limits which attach to admission of child hearsay. The court did, however, suggest that the reliability test and corroboration requirements of Colin C. would apply to admission of child hearsay as a matter of due process.114 If
109. See, e.g., Commonwealth v. Edwards, 830 N.E.2d 158, 170-71 n.21-22 (Mass. 2005) (stating that by misconduct one forfeits objections under the rules of evidence and confrontation clause but there may remain due process limits); Commonwealth v. Bohannon, 434 N.E.2d 163, 168 (Mass. 1982) (holding that a fair trial is long recognized as a requirement of due process). The Supreme Judicial Court has also demanded fundamental fairness in the admission of hearsay as a matter of the confrontation clause. See, e.g., Commonwealth v. Childs, 596 N.E.2d 351, 357 (Mass. 1992) (holding that, with prior recorded testimony, adequacy of prior cross-examination is a matter of fundamental fairness). Fundamental fairness is classic due process terminology. See, e.g., Commonwealth v. Durling, 551 N.E.2d 1193, 1196-1200 (Mass. 1990) (holding that due process demands that hearsay be reliable in probation revocation hearings in which defendants do not enjoy confrontation clause rights). 110. See David Skeels, Due Process and the Massachusetts Constitution, 84 MASS. L. REV. 76, 76-77 (1999). 111. Commonwealth v. Joubert, 647 N.E.2d 1238, 1241 (Mass. App. Ct. 1995). 112. See Durling, 551 N.E.2d at 1196-1200. 113. Joubert, 647 N.E.2d at 1241. 114. Id. Revocation was sought based on unlawful touching of a child. Id. The court did note that there was expert testimony of bruising of the child, but determined that this did not sufficiently corroborate the childs hearsay statement to make her accusation substantially reliable. Id. at 1241-42. Because corroboration is not a statutory criterion, the

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Colin C. describes the due process rights in surrender hearings, then certainly it argues for at least that much due process in criminal trials. The strongest indication that Massachusetts would apply Colin C.s limits as a matter of due process and in the absence of confrontation clause rights, is Adoption of Quentin.115 That decision involved an appeal from the Probate and Family Courts decision to terminate parental rights, following a proceeding in which child hearsay was admitted pursuant to chapter 233, section 82 of the Massachusetts General Laws.116 That statute permits the admission of child hearsay in civil proceedings.117 Its requirements are nearly identical to those statutory limits for criminal proceedings.118 Quentin affirmed the termination of parental rights without reliance on the child hearsay; in dictum, the court addressed the civil due process limits on the admission of child hearsay.119 Quentin summarized Colin C. as approving the statutory child hearsay requirements for demonstrating necessity and reliability, as modified by its additional confrontation clause procedures.120 Acknowledging that a civil
court must have been addressing a due process test which either permits corroborating evidence to establish reliability or requires it in addition to reliability. 115. Adoption of Quentin, 678 N.E.2d 1325, 1331-32 (Mass. 1997). 116. Id. at 1326. 117. MASS. GEN. LAWS ch. 233, 82(a) (2008). It does not, however, control in care and protection proceedings, to which the more lenient child hearsay exception of chapter 233, section 83 of the Massachusetts General Laws applies. See Care & Protection of Rebecca, 643 N.E.2d 26, 32 (Mass. 1994) (recognizing due process limits on the admission of child hearsay in care and protection proceedings, the court upheld the constitutionality of the statute without imposing requirements coextensive with or as stringent as those imposed by Colin C.). Of particular significance is the Rebecca courts handling of corroboration, a matter not mentioned by the statute. The court stated: [I]n deciding what weight to give statements admitted pursuant to 83, a judge also should consider whether other admissible evidence corroborates the existence of child abuse. Id. at 33. Thus, corroboration is a valid consideration in the courts assessment of the weight of the evidence but not a due process prerequisite for the admission of child hearsay in care and protection proceedings. 118. See 82(c) (directing the court to consider corroborating evidence in passing on the reliability of the hearsay; section 81 is silent with respect to corroboration). Permitting consideration of corroborating evidence in the reliability assessment is viewed as favoring the proponent of the child hearsay, since corroborating evidence can make reliable a hearsay statement otherwise lacking the guarantees of reliability. Idaho v. Wright, 497 U.S. 805, 828-35 (1990) (Kennedy, J., dissenting). The holding in Idaho v. Wright, that the Confrontation Clause does not permit consideration of corroborating evidence in passing on reliability in criminal trials, probably accounts for the omission of corroboration in the reliability test in chapter 233, section 81 of the Massachusetts General Laws (criminal proceedings), but its inclusion in section 82 (civil proceedings not governed by Wright). Id. at 822 (majority opinion). The Massachusetts statutes were approved just months following the issuance of the Wright opinion. 119. Adoption of Quentin, 678 N.E.2d at 1330-32. 120. Id.

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case might arise that would not require the full panoply of procedures discussed in Colin C., the court stated that the better part of caution would be for judges to incorporate these procedures into 82 proceedings as well.121 The court concluded by repeating the Colin C. confrontation clause requirements to which it referred: prior notice; the Commonwealths obligation to show the need for child hearsay by more than a preponderance of evidence; that the determination of reliability produce specific findings on the record; and that there be independently admitted evidence that corroborates the out-of-court statement.122 Lower Massachusetts courts have followed Quentins admonition to honor the Colin C. requirements as a matter of due process in termination of parental rights cases.123 It is axiomatic that a defendant in a criminal trial enjoys at least the due process rights equivalent to those enjoyed by a parent facing the termination of parental rights.124 Consequently, if the Supreme Judicial Court harmonizes its state confrontation clause jurisprudence with Crawford, it could instead demand due process scrutiny of the reliability of non-testimonial child hearsay. The test it crafts could impose due process limits on the admission of child hearsay similar to, or even identical to, those limits under Colin C. which were thought, when articulated, to emanate from the state confrontation clause. If the Supreme Judicial Court takes this route, it is arguably justifiable to distinguish among forms of hearsay when determining the contours of the due process test for trustworthiness. Firmly rooted hearsay exceptions are said to possess inherent indices of reliability.125 Satisfaction of the rule of evidence for admission of a firmly rooted exception would normally satisfy due process reliability concerns. The additional safeguards Colin C. framed would perhaps be unnecessary. Those exceptions which are not firmly rooted, including the child hearsay exception, are said to be presumptively unreliable and thus require particularized guarantees of

Id. at 1332. Id. See, e.g., Adoption of Arnold, 741 N.E.2d 456, 463-64 (Mass. App. Ct. 2001) (applying the Colin C. requirements, as approved for termination of parental rights proceedings by Quentin, the court upheld the admission of child hearsay pursuant to section 82). 124. See Santosky v. Kramer, 455 U.S. 745, 769 (1982) (explaining that while the governments burden in criminal cases is to prove guilt by proof beyond a reasonable doubt, due process rights in termination proceeding satisfied by clear and convincing standard of proof). 125. See White v. Illinois, 502 U.S. 346, 352 (1992) (characterizing the spontaneous utterance exception in passing on its admissibility under the Confrontation Clause, preCrawford).

121. 122. 123.

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trustworthiness.126 This special concern with reliability arguably supports imposing the Colin C. requirements as a matter of due process. On the other hand, the Supreme Judicial Court could determine that all hearsay is subject to the same broad requirement that hearsay not be so lacking in reliability that its admission would contravene a defendants right to a fair trial.127 This approach would align Massachusetts with the federal approach to due process in criminal cases, discussed above.128 It would largely leave the regulation of hearsay to the statutes and common law rules creating the exceptions.129 This avoids constitutionalizing the hearsay law of the Commonwealth, an objective the Massachusetts Supreme Judicial Court has viewed as worthwhile,130 without necessarily degrading the fairness desirable in criminal proceedings.131
VII.

CONCLUSION

Non-testimonial child hearsay must satisfy chapter 233, section 81 of the Massachusetts General Laws. It is currently unclear what additional requirements exist for the admission of non-testimonial child hearsay when the Commonwealth is the proponent. The potential sources of additional limits are the Federal Due Process Clause and state confrontation and due process guarantees. The Supreme Court has indicated that the admission of non-testimonial
126. See Idaho v. Wright, 497 U.S. 805, 816-17 (1990) (quoting Lee v. Illinois, 476 U.S. 530, 543 (1986)) (characterizing child hearsay in passing on its reliability under the Confrontation Clause, pre-Crawford). 127. See Commonwealth v. Edwards, 830 N.E.2d 158, 170 n.21 (Mass. 2005) (citing United States v. Aguair, 975 F.2d 45, 47 (2d Cir. 1992)) (finding that by misconduct one forfeits objections under the rules of evidence and confrontation clause but [t]here may be some statements so lacking in reliability that their admission would raise due process concerns.). 128. See Dowling v. United States, 493 U.S. 342, 352-53 (1990) (claiming the Supreme Court has been disinclined to use the Due Process Clause to extend rights in criminal cases beyond those specific guarantees enumerated in the Bill of Rights); Mooney v. Holohan, 294 U.S. 103, 112 (1935) (citing Herbert v. Louisiana, 272 U.S. 312, 316-17 (1926)) (asserting that judges are to determine only whether challenged actions violate fundamental conceptions of justice which lie at the base of our civil and political institutions.). 129. See Tom Lininger, Reconceptualizing Confrontation After Davis, 85 TEX. L. REV. 271, 315 (2006) (recommending tightening the criteria for the admission of hearsay by revitalizing rule-based limits and enacting clarifying legislation). 130. See Opinion of the Justices to the Senate, 547 N.E.2d 8, 15 (Mass. 1989) (We seek to avoid consitutionalizing the hearsay law of the Commonwealth.). 131. Eileen A. Scallen, Coping with Crawford: Confrontation of Children and Other Challenging Witnesses, 35 WM. MITCHELL L. REV. 1558, 1603-06 (2009) (suggesting greater rigor in application of hearsay rules could fill void left by absence of Confrontation Clause limits).

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hearsay is a matter left to state law or, in the federal system, to the Federal Rules of Evidence.132 This indicates that the Court will not fill the vacuum left by the elimination of pre-Crawford confrontation clause requirements with due process limits, but it has not yet so held. Whatever, if any, those federal due process limits might be, it is implausible that they would be any more restrictive than the statutory limits on child hearsay in Massachusetts. It may be that state confrontation clause limits on non-testimonial child hearsay will survive Crawfords elimination of Federal Confrontation Clause limits. State and Federal Confrontation Clause analyses have historically, but not always, been similar. Pre-Crawford, the Supreme Judicial Court announced that state confrontation clause limits on child hearsay differ from existing Federal Confrontation Clause limits. The difference, however, was not in the core requirement of reliability, but rather in the strictness of the measures for assuring reliability. If Massachusetts retains pre-Crawford state confrontation clause limits on non-testimonial child hearsay, the difference between federal and state confrontation analyses would be much more substantial than in the past. In this event, the Commonwealth will have to satisfy both the statutory and confrontation clause limits elucidated by Colin C. If the Supreme Judicial Court does harmonize the state analysis with the Federal Confrontation Clause analysis, there remains the question whether there are state due process limits on the admission of child hearsay. The court has announced state due process limits on the admission of child hearsay in termination of parental rights proceedings coextensive with those confrontation clause guarantees it articulated for criminal trials. Certainly, a criminal defendant would have at least the same due process rights as a respondent in a termination of parental rights proceeding. Unless the Supreme Judicial Court generally de-constitutionalizes the admission of non-testimonial hearsay or alters its child hearsay jurisprudence, the requirements Colin C. articulated will continue to control the admission of child hearsay in criminal trials, if not as a matter of the state confrontation clause, then as a matter of state due process.

132.

Crawford v. Washington, 541 U.S. 36, 68 (2004).