Was Maine's proposed LD 275, expanding admissibility of child sexual abuse victims' hearsay statements, constitutional under Crawford v. Washington?

Subject

Whether L.D. 275, "An Act to Protect Child Victims of Sexual Abuse," would survive Sixth Amendment Confrontation Clause review under Crawford v. Washington and the Roberts trustworthiness test.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Plain-English summary

In 2007, Representative Jeremy Fischer asked the Maine AG whether L.D. 275, a proposed statute that would have spelled out when out-of-court statements by child sexual abuse victims could be admitted at trial, was constitutional. AG G. Steven Rowe concluded that a court would likely uphold L.D. 275 if properly applied, but he recommended rewriting it to track Sixth Amendment case law more closely.

The AG's analysis turned on the U.S. Supreme Court's 2004 decision in Crawford v. Washington, which divided hearsay statements into "testimonial" and "nontestimonial" categories and applied different admissibility rules to each. Under Crawford, "testimonial" statements (former trial testimony, grand jury testimony, statements during police interrogation) cannot be admitted at trial unless the speaker is unavailable and the defendant had a prior opportunity to cross-examine. "Nontestimonial" statements still had to satisfy either a "firmly rooted hearsay exception" or "particularized guarantees of trustworthiness" under Ohio v. Roberts, 448 U.S. 56 (1980), as the First Circuit clarified in Horton v. Allen.

The AG identified two drafting issues. Subsection A of the bill, governing testimonial statements, was actually narrower than Crawford because it required statements to have been recorded under oath in the presence of a judge or justice. Crawford itself would admit unrecorded testimonial statements if unavailability and prior cross-examination were satisfied. Subsection B, governing nontestimonial statements, was probably constitutional as drafted but did not expressly incorporate the Roberts requirements.

The AG also questioned whether the bill was needed at all, since it largely codified case law that already bound Maine courts and risked being out of step if the Supreme Court further refined the doctrine.

Common questions

Q: What did Crawford v. Washington change about hearsay at criminal trials?

Before Crawford, the test was whether a hearsay statement bore "particular guarantees of trustworthiness." After Crawford (2004), the test became whether the statement was "testimonial." Testimonial statements require unavailability and prior cross-examination; nontestimonial statements still go through the older Roberts trustworthiness analysis.

Q: Why did the AG say Subsection A might be unconstitutionally narrow?

The bill required testimonial statements to have been made under oath before a judge or justice. Crawford does not require that. A police-interview statement, for example, can be testimonial even though it was not under oath, and Crawford allows it in if unavailability and a prior cross-examination opportunity are met. Locking the statute to the under-oath-and-judge requirement would exclude statements Crawford would allow.

Q: Did the AG say the bill should not be passed?

The AG did not recommend against passage outright. He noted that the bill mostly restated existing case law that already binds Maine trial courts, so its purpose was unclear, and that codifying constitutional doctrine in statute risks creating inconsistency if the Supreme Court keeps refining it. He suggested the Legislature might want to consider whether the bill was necessary.

Background and statutory framework

The constitutional backdrop is the Sixth Amendment's Confrontation Clause, which gives criminal defendants the right to confront witnesses against them. Out-of-court statements (hearsay) by alleged child sexual abuse victims have been a recurring problem because young victims may not be reliable trial witnesses, but their out-of-court statements may be the strongest evidence. Different states have tried different ways of admitting these statements without violating the Confrontation Clause.

Crawford v. Washington (2004) was the U.S. Supreme Court's most significant rewrite of Confrontation Clause doctrine in decades. It replaced the "particularized guarantees of trustworthiness" test of Ohio v. Roberts (1980) for testimonial statements with the unavailability + prior cross-examination requirement. After Crawford, lower federal courts (including the First Circuit in Horton v. Allen) clarified that the Roberts test still governed nontestimonial statements.

L.D. 275 attempted to codify this two-track admissibility framework in Maine statute. The AG read it carefully against the case law and concluded the bill mostly tracked the framework but had drafting flaws on the testimonial side that would have made the statute narrower than the Constitution requires.

Citations

Cases:
- Crawford v. Washington, 541 U.S. 36 (2004), testimonial vs. nontestimonial framework
- Ohio v. Roberts, 448 U.S. 56 (1980), pre-Crawford trustworthiness test for hearsay
- Horton v. Allen, 370 F.3d 75 (1st Cir. 2005): Roberts still governs nontestimonial statements after Crawford

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2007/ag_20070320.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

STATE OF MAINE
OFFICE OF THE ATTORNEY GENERAL
6 STATE HOUSE STATION
AUGUSTA, MAINE 04333-0006

G. STEVEN ROWE
ATTORNEY GENERAL

March 20, 2007

The Honorable Jeremy Fischer
Maine House of Representatives
2 State House Station
Augusta, Maine 04333

RE: L.D. 275, An Act to Protect Child Victims of Sexual Abuse

Dear Representative Fischer:

In response to your request to review the constitutionality of L.D. 275, An Act to Protect Child Victims of Sexual Abuse, it is my opinion that a court would likely conclude that the proposed legislation is constitutional, provided it is properly applied. Should the Legislature decide to enact LD 275, we recommend clarifications to conform the language of the bill more closely to the requirements of the case law.

Relevant Case Law. As the bill summary recognizes, the United States Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004) dramatically changed the focus of Sixth Amendment confrontation clause jurisprudence from whether a hearsay statement contained "particular guarantees of trustworthiness" to whether the statement was "testimonial" or "nontestimonial." Different standards apply to the admissibility of statements in each category.

In Crawford, the Supreme Court did not define what it meant by the term "testimonial," but suggested that former trial testimony, grand jury testimony, and statements obtained during police interrogations would constitute testimonial statements. The Court held that before a "testimonial" out-of-court hearsay statement can be admitted at a criminal defendant's trial, the person who made the statement must be "unavailable" to testify at trial (due to, for example, death, incapacity, or invocation of a privilege) and the defendant must have had a prior opportunity to subject that person to cross-examination about the statement. On the other hand, if the out-of-court hearsay statement was "nontestimonial," then the two prerequisites for admissibility of testimonial statements under Crawford would not apply. The Crawford decision observed that "[m]ost of the hearsay exceptions covered statements that by their nature were not testimonial," 541 U.S. 36, 56, and therefore such nontestimonial statements did not raise the same Sixth Amendment concerns as testimonial statements.

The United States Court of Appeals for the First Circuit subsequently clarified that even if the hearsay statement was considered nontestimonial, the statement would have to meet standards under the Sixth Amendment confrontation clause established by the Supreme Court in Ohio v. Roberts, 448 U.S. 56 (1980) in order to be admissible at trial. Specifically, the out-of-court nontestimonial statements would have to fall within either a "firmly rooted hearsay exception," (such as an excited utterance) or bear "particularized guarantees of trustworthiness." Horton v. Allen, 370 F.3d 75, 84 (1st Cir. 2005).

LD 275 and Recommended Changes. Turning to LD 275, the proposed legislation correctly focuses on the constitutional distinction between "testimonial" and "nontestimonial" statements. The bill, however, does not effectively expand the categories of out of court statements that would already be admissible under the Maine Rules of Evidence and the constitutional standards under Crawford. Indeed, subsection A of the bill, pertaining to "testimonial" statements, may be more restrictive than required by Crawford because it limits admissibility of statements to those recorded under oath in the presence of a judge or justice, whereas Crawford would admit unrecorded "testimonial" statements to if the prerequisites of unavailability and opportunity to cross-examine were met. Unless the bill is intended to further limit the admissibility of testimonial statements, we suggest that subsection A be rewritten to closely follow the standards expressed in the Crawford case.

Subsection B of the bill, pertaining to "nontestimonial" statements, appears to pass constitutional muster as drafted, assuming that the phrase "sufficient guarantees of trustworthiness" is interpreted in the same manner as set forth in the Supreme Court's Roberts test. In order to ensure that the subsection is constitutional and not more limited in scope than is required, we suggest that the bill be modified to expressly incorporate the Roberts requirements that the statement fall within a "firmly rooted hearsay exception" or bear "particularized guarantees of trustworthiness" for admission at trial.

Because LD 275 would enact as statute case law requirements that are already binding on the courts, its purpose is unclear. There is, of course, some risk in putting case law standards in statute, in that further clarifications to the applicable constitutional standards may be made in future cases, creating inconsistency and requiring amendment to the statute. LD 275 does not attempt to reduce to statute the key distinction between testimonial and non-testimonial statements, nor should it do so as this is a matter for case by case determination by the trial court. This area will continue to evolve for some time into the future, given the variety of factual scenarios that can result in such statements being proffered as evidence. For these reasons, you may wish to consider whether LD 275 is necessary.

Please let me know if my Office can provide any other information regarding the proposed bill.

G. STEVEN ROWE
Attorney General