• 07
  • February
    2011

Imagine, if you will, that you are working at your job on any given Monday. Suddenly, police officers burst into your office, handcuff you and drag you off to jail in front of your co-workers. You are told you have been accused of assaulting your neighbor. You are taken downtown and "processed" at the jail. You post bail (15% of which will be forfeited to the State of Oregon even if you are found Not Guilty) and go home to prepare for trial.

Months later you learn that your neighbor, the one who is accusing you of assault, will not be appearing at your trial. Rather, his wife and a police officer who he complained to will testify against you, telling the jury what your neighbor told them you did to him. Additionally, you learn that even though there were no marks or bruises on your neighbor after your alleged assault, a doctor who works for an office closely affiliated with the police and prosecution will be coming to court to testify to the jury that, despite the fact there were no physical injuries to your neighbor, this "doctor" has diagnosed your neighbor as being the victim of an assault.

You turn to your lawyer and ask "This can't be right?...Can it?" Turns out, that until recently this was all perfectly acceptable. People were routinely convicted of assault crimes where the alleged victim never appeared in court and a state-sponsored expert gave their medical stamp of approval to the accuser's one-sided version of events.

A recent article in the Oregonian,describes this very scenario, but in the context of a child sexual abuse trial. The tenor of the article is one of frustration at the difficulty in the prosecution of "child molesters". The problem with the article however is that it is the same Constitution that protects all of us. If the Constitution's protections are watered down for one group of people, no matter how vilified, those protections are weakened for us all.

The Sixth Amendment to the U.S. Constitution provides in part that "In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him." This fundamental tenet of the American criminal justice system basically provides that any person charged with a crime has the right to see, hear, and question the witnesses against him or her in open court in front of the jury. A corollary to this rule is that under most circumstances, a witness may not be called to tell a jury what someone else told them about an event - so called "hearsay testimony."

For roughly 200 years this right to confront witnesses was eroded as the state and federal courts provided "exceptions" allowing for hearsay testimony to stand in for the live testimony of the witness. At last count there were some 36 exceptions through which Oregon courts would allow into evidence the hearsay testimony of a witness on some showing that the testimony was otherwise "reliable," and as trustworthy as live testimony.

In 2004, in Crawford v. Washington, the United States Supreme Court reversed this trend and held under most circumstances the testimony of a witness must be presented by that witness in open court where the defendant and his lawyers have an opportunity to question the witness. This ruling had and continues to have a far-reaching and profound effect on all criminal trials here in Oregon. This ruling is not limited to so-called "child molesters."

Compounding this problem was the fact that until recently, doctors were routinely called as witnesses in child-sexual abuse (and other assault type) cases to tell the jury that based on what the child told them, and with no physical evidence whatsoever, they "diagnosed" these children as having been "sexually abused," as if they were diagnosing a disease like diabetes or cancer. Such obviously flawed, prejudicial and inflammatory testimony, usually based only on an interview with the witness, was routinely allowed into court.

 As in the hypothetical that opened this post, how would you feel if you were convicted of assaulting your neighbor based only on the testimony of another person who told the jury that your neighbor had told them that you had assaulted him? How would you feel if a state-sponsored doctor diagnosed your neighbor as having been assaulted (by you)? You probably feel that is unfair and unacceptable. Probably not the same reaction you had to the Oregonian article.

Recent cases from The Oregon Supreme Court and Court of Appeals however have rightly noted that such "medical" testimony often only amounts to "vouching" for the credibility of the witness. "I as a doctor have come to believe this person." (and ladies and gentlemen of the jury, why if a doctor believes it, it must be true...) Additionally, this type of testimony adds nothing to allegations already made and interferes with the jury's proper role in evaluating witness testimony.

The point should not be, as the Oregonian seems to make it, that the result of these cases has made it more difficult to convict child molesters. Rather the point should be that everyone, who is accused of any crime is presumed innocent, and should be given the full protection of the Constitution to which they are entitled. We should not be so naive as to give up the rights of every citizen in the pursuit of a particularly reprehensible few.

Despite years of erosion of these principles, the hard work of dedicated Oregon criminal defense attorneys continues to push back and reclaim the Sixth Amendment's guarantee of the right to confront one's witnesses - and to a fair trial no less. Without the right to cross examine the witnesses against you there can be no fair trial. John Henry Wigmore long ago remarked that "Cross examination is the greatest legal engine ever invented for the discovery of truth." For anyone who has ever been wrongfully accused of a crime, those words have real meaning.