Confrontation in the Eighth
"Federalism and Criminalization"

Two-Way TVs and the Confrontation Clause

In United States v. Bordeaux, No. 04-1369 (8th Cir., Mar. 7, 2005) (Arnold for Gibson and Smith, JJ.) the court handed the Confrontation Clause two major victories.  First, the court held that allowing the complaining witness in a child molestation case to testify through a two-way circuit television system violated the Confrontation Clause.  Second, the court rejected the assertion that statements made for medial treatment are non-testimonial, and furthermore, that admitting statements made during a forensic interview violate the Confrontation Clause unless the declarant is put through the crucible of cross-examination.  Let's elaborate.

First -- A two-way circuit does not satisfy Craig or the Confrontation Clause:

[A] "confrontation" via a two-way closedcircuit television is not constitutionally equivalent to a face-to-face confrontation. "Confrontation" through a two-way closed-circuit television is not different enough from "confrontation" via a one-way closed-circuit television to justify different treatment under Craig. It is true that a two-way closed-circuit television creates an encounter that more closely approximates a face-to-face confrontation than a one-way closed-circuit television does because a witness can view the defendant with a twoway system. But two-way systems share with one-way systems a trait that by itself justifies the application of Craig: the "confrontations" they create are virtual, and not real in the sense that a face-to-face confrontation is real.

Id. at *5.

Second -- Statements made during a forensic interview, even if made for purposes of medical diagnosis or treatment, are testimonial and therefore subject to Crawford.  Moreover, those statements are testimonial to the extent that they are made in anticipation of a criminal investigation.  Judge Arnold wrote:

First of all, [the complaining witness'] statements are testimonial. Statements elicited during police interrogations lie at the core of the definition of "testimonial." Crawford, 124 S. Ct. at 1374. A police interrogation is formal (i.e., it comprises more than a series of offhand comments – it has the form of an interview), involves the government, and has a law enforcement purpose. The same is true of the interview here. The formality of the questioning and the government involvement in it are undisputed in this case. The purpose of the interview (and by extension, the purpose of the statements) is disputed, but the evidence requires the conclusion that the purpose was to collect information for law enforcement.

First, as a matter of course, the center made one copy of the videotape of this kind of interview for use by law enforcement. Second, at trial, the prosecutor repeatedly referred to the interview as a "forensic" interview, meaning that it "pertain[ed] to, [was] connected with, or [was to be] used in courts of law." Oxford English Dictionary Online Edition (taken from second print ed. 1989). That AWH's statements may have also had a medical purpose does not change the fact that they were testimonial, because Crawford does not indicate, and logic does not dictate, that multi-purpose statements cannot be testimonial.

Id. at *8.