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

Interviewing Elder Abuse Victims After Crawford  Cannot use videotaped testimony of elder victim as it has been ruled hearsay  Many state laws using videotaping of elders 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 disputed by another party in a court proceeding  Public records such as birth certificates, death certificates and autopsy reports are non- testimonial; that is a matter of official public record  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 part of an official court record  Videotaped by a court reporter in a legal proceeding  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  If the evidence is disputed (testimonial); it does not fall under the business record exception

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 to testify as experts and can give an opinion

How Social Agency Records Can Help Police in Elder Abuse Cases  Neat, orderly records that have Impartial, factual reporting of the case with no opinions; nothing that could be disputed. The defense will always try to have the record excluded under the business record rule or Crawford.  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 still admissible in court, according to the details of the majority opinion for the court.  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 to the Hearsay Rule  Forfeiture Rule: If the defendant caused the 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 which can be difficult with elderly patients due to dementia, stroke or other diseases of aging.  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 (continued)  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

Case Law  Offhand remarks to a police officer were not part of an investigation, thus non-testimonial, thus admissible  Some 911 tapes admissible (e.g., if cry for help)  Some 911 tapes not admissible (e.g., if calling to seek justice for a crime)