Federal Evidence Review

On habeas review of state trial concerning sexual abuse of a child, Eighth Circuit concludes video-taped testimonial statements of the minor to a police officer and social worker describing the details of the abuse were admissible despite the inability of the minor to recall the events during her trial testimony since she testified at trial and the defense was provided a full and fair opportunity to cross-examine her; the minor was not made “unavailable,” under the Confrontation Clause, by her inability to recall the events during testimony, in Yanez v. Minnesota, 562 F.3d 958 (8th Cir. Apr. 15, 2009) (No. 08-2034)

In the landmark Confrontation Clause decision in 2004, the Supreme Court explained the operation of the right of confrontation:

“Our cases have thus remained faithful to the Framers’ understanding: Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.”

Crawford v. Washington, 541 U.S. 36, 59 (2004) (footnote omitted). When a minor witness testifies at trial and is unable to recall the details of the charged sexual abuse, has the defendant been provided a meaningful opportunity to cross-examine the witness? Can prior testimonial statements describing the details of the offense be admitted? The Eighth Circuit recently addressed these issues and concluded there was no constitutional violation.

In the case, defendant Yanez was prosecuted in state court for criminal sexual conduct for abusing the nine-year old daughter of his girlfriend. The incident was reported to the police by the minor’s grandmother. At the police station, a video recording of an interview of the minor was made by a deputy and a social worker. The video interview provided specific and graphic details about the abuse.

At trial, the government played the videotaped interview under a state statute permitting out of court minor statements in cases involving sexual abuse. See Minnesota Statute § 595.02 subdivision 3.2. The minor then testified but could not remember details of the abuse or what she stated during the interview. The minor did acknowledge that the defendant had laid down beside her at night but did not recall how many times or what he did.

During cross-examination, defense counsel asked the minor if she could recall the events noted in the videotape. She responded she could not remember what she had mentioned to her grandmother, her aunt, or the police. In an effort to highlight possible bias, the defense counsel elicited that she “did not want to move to Texas with Yanez, as the family had been planning to do prior to the allegations.” She was not aware of any conflict between the defendant and her grandmother. Other witnesses included the police officer and social worked involved in the video interview, the minor’s grandmother and other family members who recounted statements the minor made that the defendant had touched her. No medical examination of the minor was performed. The jury convicted the defendant on four counts.

The Minnesota Court of Appeals affirmed Yanez's conviction after concluding that Crawford v. Washington, 541 U.S. 36 (2004) did not bar the video statements since the minor was available and testified at trial. The court rejected the defendant’s contention that her inability to remember the event effectively made her unavailable. See State v. Yanez, No. A04-276, 2005 WL 894649, at *2 (Minn. Ct. App. Apr. 19, 2005) (unpublished). Review was denied by the Minnesota Supreme Court.

The defendant filed a writ of habeas corpus in federal court, alleging his Confrontation Clause rights were violated. The district court found no violation since the minor testified and was subject to cross-examination. Specifically, the minor’s inability “to remember salient facts does not render her an unavailable witness for purposes of a Confrontation Clause inquiry” under Crawford. See Yanez v. Minn., No.06-2890, 2007 WL 3138639 (D. Minn. Oct. 17, 2007) (unpublished). A certificate of appealability was issued on the Confrontation Clause issue. The defendant appealed.

The circuit affirmed the denial of the habeas petition. There was no violation of the Confrontation Clause. The testimonial statements of the minor were admissible since she testified at trial and the defense was provided an opportunity to cross-examine her. The circuit cited favorably United States v. Owens, 484 U.S. 554, 558 (1988), in which the Court clarified that the Confrontation Clause “includes no guarantee that every witness . . . will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion” and that “the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the fact finder the reasons for giving scant weight to the witness’ testimony.” (quotations omitted).

The defendant had a full and fair opportunity to cross-examine the minor. He was able to underscore the minor’s inability to recall the details, and highlight potential bias or other motives. The jury determined her credibility and assessed her demeanor. As the circuit noted, “Ultimately, the jury credited [victim] L.P.’s testimony to the detriment of Yanez, but that does not mean that there was a constitutional defect in the proceedings or that Yanez’s cross examination was not “effective.” Yanez, 562 F.3d at 964 (citing Delaware v. Fensterer, 474 U.S. 15, 19–20 (1985) (“But it does not follow that the right to cross-examine is denied by the State whenever the witness' lapse of memory impedes one method of discrediting him. Quite obviously, an expert witness who cannot recall the basis for his opinion invites the jury to find that his opinion is as unreliable as his memory. That the defense might prefer the expert to embrace a particular theory, which it is prepared to refute with special vigor, is irrelevant. ‘The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.’”) (citation omitted); United States v. Boesen, 541 F.3d 838, 844 (8th Cir. 2008) (“[The Supreme Court] has emphasized that the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” (quotations omitted)); United States v. Spotted War Bonnet, 933 F.2d 1471, 1474 (8th Cir. 1991) (“Under Owens . . . a perfectly satisfactory cross-examination is not required by the Clause. . . .”))]

The circuit noted: “At a minimum, whether there may ever be an instance in which memory loss can inhibit cross-examination to such a degree as to violate the Constitution is still an ‘open question.’” Yanez, 562 F.3d at 964 (citing Carey v. Musladin, 549 U.S. 70, 76-77 (2006)). Under habeas review, “The state court’s decision was not an unreasonable application of clearly established Supreme Court precedent such that habeas relief is warranted.” Yanez, 562 F.3d at 964.

As the circuit noted, the Yanez case was considered under the more deferential review afforded to challenges of state court judgments. Under the Antiterrorism and Effective Death Penalty Act of 1996, habeas relief of a state court decision is limited to a decision that (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). Would a different result occur under a de novo standard of review, which is commonly used to review constitutional evidence issues on appeal?