Proposed Maine Law Bases Hearsay Admissibility on the Group You Belong to, or Don’t.
Posted by Ed Folsom, March 22, 2023
Lots of proposed legislation gets presented to the Maine legislature each year. A former colleague from the criminal defense bar recently tipped me off to L.D. 765, An Act to Permit Recordings of a Protected Person to Be Admissible in Evidence. I have no idea what its prospects are for passage. But in its own subversive way, it’s pretty radical stuff.
The bill would make certain hearsay statements, that do not fall within any hearsay exception in the Maine Rules of Evidence, admissible at trial. Statements made by a person under age 18 or a person eligible for adult protective services, that are audio and video recorded during a “forensic interview” conducted by a “forensic interviewer,” would be admissible. To be a “forensic interviewer,” the person must be employed by or affiliated with a child advocacy center, must have at least 32 hours of “specialized instruction on an evidence-supported interview protocol,” and must “participate in ongoing education in the field of child maltreatment or forensic interviewing.” In other words, to be a “forensic interviewer,” a person must be an advocate connected with a child advocacy center.
The proposed statute does require that the statements must be relevant under M.R. Evid. 401; that no relative of the witness and no attorney for the witness may be present during the recorded interview; and that the recording must fairly and accurately capture the witness’s statements, without alteration. But that’s it. As long as the witness is “available to testify or be cross-examined by any party in a criminal matter,” the witness’s hearsay statements during the interview would be admissible in evidence as an exception to M.R. Evid. 802.
The Rules of Evidence have been carefully thought through over a very long period, informed by abundant experience. There are twenty-three separate hearsay exception under Rule 803 and another four for unavailable witnesses under Rule 804. Maine has never found fit to create another exception for relevant audio/video-recorded out-of-court statements of a witness under age 18, made during an interview by a particular type of advocate, as long as the minor’s relatives or attorney were not present during the interview. This is true even though witnesses under age 18 and their out-of-court hearsay statements have been common in Maine criminal trials for a long, long time. By making such statements admissible as exceptions to the hearsay rule, the proposed legislation waters down the procedural protections that the existing hearsay rule and its limited exceptions provide for people facing criminal charges at trial.
Why should the general rules that have for so long applied to evidence in criminal trials no longer apply to this certain category of statements? Is it because statements elicited by trained advocates who work for a “child advocacy center” (defined as “a community-based center that provides multidisciplinary services for children and families affected by child sexual abuse and other child abuse and neglect”) are so much more trustworthy than all the other hearsay statements barred from admissibility by the Maine Rules of Evidence? Or is it because it’s so uniquely difficult for everyone under age 18 to testify on a topic that might bring them into contact with a child advocacy center that we must allow their hearsay statements into evidence, despite the singular weakening of evidentiary standards this would work for people charged with these crimes?
As to the latter possibility, the proposed legislation requires that the witness must be “available to testify or be cross-examined by any party” before the hearsay statement may be admitted at trial anyway. The proposed legislation would therefore not actually protect witnesses under age 18 from testifying and/or being cross-examined during criminal proceedings (and witnesses age 14 and under are already allowed to testify remotely, at a children’s advocacy center, in the presence of an advocate, under 15 M.R.S. section 1321). But the proposed legislation would ensure the admission into evidence of hearsay statements curated by an advocate, to stand alongside the witness’s non-hearsay trial testimony.
And there is no limitation on the use of the evidence once admitted – no requirement that it may only be presented to the jury but not submitted to them for review during deliberations. In this way, the curated hearsay statements would be more readily available to the jury during deliberations than the substance of the trial testimony itself (which is only accessible through readback). This risks elevating the value to the jury of curated hearsay over trial testimony.
What happens if the curated testimony is of good enough quality, and if the quality of the witness at trial promises to be so poor, that the prosecutor decides to skip direct examination, to rest on the curated hearsay, and to simply make the witness available to the defense for cross-examination? This would leave defense counsel alone in appearing to choose to traumatize a clearly disturbed, hesitant, unfriendly witness in front of the jury, through questioning. And this would give the State a sympathetic edge that it might not have if the State were required to elicit its testimonial evidence in the same setting in which the defense is required to conduct cross-examination.
Once the dam is broken by this particular hearsay rule carve-out for these particular groups or categories of witness, why should we think that will that be the end of it? Surely there are other trained advocates who are every bit as capable of eliciting objectively reliable evidence from their clients as “forensic interviewers” from child advocacy centers. And surely, there are other people who, as a group, have difficulty testifying under direct and cross-examination during a trial – maybe adult alleged victims of domestic violence, for instance. If hearsay exceptions can be made for the classes or categories of witnesses covered by the proposed legislation, why not for other classes or categories of witnesses who find it far easier to provide a coherent narrative to an advocate outside court than to a prosecutor during trial — witnesses whose advocates are capable of eliciting hearsay statements that are just as objectively reliable as statements elicited by “forensic interviewers” connected to child advocacy centers?
As a general proposition, it’s a big deal to start down the road of hearsay carve-outs for particular groups or classes of people — making hearsay admissible based on what group you belong to, or don’t. As for specifics, the proposed legislation does nothing to guard against repeated dry runs with the “forensic interviewer”/advocate, possibly even with assistance of family members, friends, and an attorney before the final-cut “forensic interview” is nailed down in relative comfort, for later viewing by a jury.
Granted, other states have enacted somewhat similar procedures for admitting hearsay statements of an alleged child victim as substantive evidence at a trial. But the several statutes I have viewed from Indiana, Tennessee, Virginia and Wisconsin,* all provide that the relevant hearsay is not admissible unless the trial judge determines that sufficient indications of reliability, or of trustworthiness, or particularized guarantees of trustworthiness, have been demonstrated. This has parallels to the catchall hearsay exception that exists in some jurisdictions, but not in Maine. Maine has chosen not to have a catchall hearsay exception that allows a case-by-case determination of admissibility based on reliability or trustworthiness.
In any event, the proposed legislation goes beyond what these other states have done, by essentially, categorically presuming that all hearsay statements meeting its requirements bear sufficient indicia of reliability or trustworthiness to be admitted into evidence. Yet, it does this while failing to guard against untrustworthy circumstances such as off-camera rehearsals, coaching, or more subtle cuing by the trained advocate “forensic interviewer” during the rehearsal phase, as to desired versus undesired responses. In fact, no matter how much the trained advocate might lead or feed the witness during recorded questioning, there is no provision in the proposed statute for the trial judge to exclude the evidence on a finding that it’s just too much, that the circumstances are just too unreliable or untrustworthy to let the evidence in.
Personally, I tried a lot of sex case as an assistant and deputy D.A. in Cumberland County back in the day. Even before that, I defended quite a few people against sex charges in Kennebec County. Those were the days of the McMartin Preschool case, when we were assured that children just don’t make these things up. Well, they don’t usually make these things up. But sometimes, they actually do – sometimes with help, sometimes without it.
If we relax our standards to allow the State to convict more people, the State will no doubt convict more people. But at what price?
There is no necessity for this proposed law and its dangers far outweigh the measure of convenience it would provide the State. But that does not mean it won’t pass. Subversive.