Talk to Me (Out of Court)

By Jennifer McDonald

State v. Hoch, 2011 VT 4 (mem.).

This case warrants only a very short blog post.  The decision’s utility is in its affirmation that videotaped interviews of a child victim are admissible and its application of Crawford v. Washington, 541 U.S. 36 (2004), which held that a witness must be available for cross-examination on any prior statement introduced, which is also testimonial.

The facts are simple.  Defendant was convicted for lewd and lascivious conduct with a child.  He appealed the admission of a videotaped recording made during an interview of the child on the grounds that its admission violated the Vermont Rules of Evidence and his constitutional right to confront a witness.  Since Defendant did not object to the admission of the videotaped evidence at trial, the SCOV reviewed the decision only for plain error.  It unanimously affirmed the jury’s ruling and the trial court’s determinations. 

Rule 804a provides that a witness may testify to hearsay statements made by a child 10 years old or younger if the statements are offered in prosecution of lewd and lascivious conduct, where the child is an alleged victim; the statements were taken in preparation for a legal proceeding; the child is available to testify; and the time, content, and circumstances of the statements show indicia of trustworthiness.

Defendant did not claim that the child’s statements did not meet the Rule 804a criteria, only that videotaped testimony is not the type of statement that is admissible under 804a.  The SCOV held that there was no error in admitting the videotaped testimony, since 804a does not differentiate between statements recounted during another witness’s testimony and those replaced on videotape.  The SCOV also held that Defendant’s sixth amendment was not violated, since Crawford and the Confrontation Clause do not limit the use of prior testimonial statements once a declarant appears for cross-examination at trial.  Since the child testified in court prior to admission of the videotape, and Defendant did not call the child for cross-examination, his right to confront child was not violated by admission of the videotaped testimony. 

Defendant in this appeal appears to have been grasping at straws, which is an improvement given what he was charged with grasping before.