Crawford v. Washington US Supreme Court, March 2004 Implications for Elder Abuse Prosecutions Adapted from material presented June 30, 2004 by Sean Morgan American Prosecutors Research Institute

Interviewing Elder Abuse Victims After Crawford  Cannot use videotaped statements to police by elder victim as it has been ruled hearsay  State laws permitting admission of videotaped statements to police have been, or will be, declared unconstitutional after Crawford  Right to be confronted by your accuser and other witnesses who are testifying are protected under the Sixth Amendment of the Constitution

Crawford is only applicable when:  The case is criminal  The witness is unavailable to testify  The statement is “testimonial”  The defense has not had an opportunity to cross examine the witness

Testimonial Evidence  May be statements disputed by another party in a court proceeding  Police interrogations are testimonial  Social agency records may be non- testimonial if they qualify under the business rule exception

Crawford Does Not Apply When:  The statements were made in a pre- trial deposition where the defense attorney had the ability to cross- examine the witnesses  When social agency records qualify under the business record exception to hearsay

Business Record Rule Exception to Hearsay  A record must be kept; it can be paper, electronic, or videotaped  The record must be regularly made and maintained in the regular course of business

APS, Department for the Aging and other Social Agency Records  Records must be factual, unbiased, and describe the facts and circumstances surrounding the social work investigation  Social workers cannot be agents of the police; the police cannot direct the social work investigation  Joint Interviews with the police are testimonial and do not qualify under the business record hearsay exception rule  Agency representatives can be qualified as experts and can give an opinion

How Social Agency Records Can Help Prosecutors in Elder Abuse Cases  Keep neat, orderly records that have impartial, factual reporting of the case.  Excited utterances made to neighbors or other witnesses may be contained within the records  Make sure that the records were made before suspected crime was reported to the police; in New York State APS workers are mandated to report all suspected crimes against elders to the police. The law does not state at what point in the investigation or a time frame as to when the report must be made

Excited Utterances are an Exception to the Hearsay Rule  They are non-testimonial statements and Crawford does not apply  Excited Utterances are statements made at or near the time of the occurrence of a crime when the victim is shaken or very upset  Social agency records should document exact statements made, who they were made to, the demeanor of the victim at the time, and the circumstances surrounding the statements

Other Exceptions: Forfeiture Rule  Forfeiture Rule: If defendant caused elder to be unavailable for trial, through intimidation, or if the abuse caused the incapacity Must show that the abuse caused the incapacity; not just incidentally contributed to it May have to show it was the only cause--can be difficult with elderly patients due to dementia, stroke or other diseases of aging

Other exceptions: Dying declarations  Dying Declarations: Only applies in homicide and civil cases Person must have believed he was dying and the statement must be about the cause of death such as elder abuse

Other Exceptions to the Hearsay Rule  Medical notes and diagnosis which are made by doctors and nurses which are part of the medical record  Adversarial probable cause case hearings can preserve testimony of elderly victims