“Cornerhouse” Interview of Child Sexual Abuse Victim is “Testimonial” under Crawford.

Bobadilla v. Carlson, 2009 WL 2392182, C.A.8 (Minn. 2009).  See State v. Bobadilla, 709 N.W.2d 243 (Minn. 2006).   The Minnesota Supreme Court had ruled that a social worker’s interview of a child sexual abuse victim was not “testimonial” under Crawford v. Washington, 541 U.S. 36 (2004).  The trial court could, therefore, admit the interview when the child was unavailable because of young age (incompetent).  The Eighth Circuit effectively reversed the Minnesota Supreme Court.  Here’s the salient paragraph from the Opinion of the Eighth Circuit, granting Mr. Bobadilla’s federal habeas petition and ordering a new trial:

Crawford held that statements taken by police officers in the course of interrogations are testimonial under even the narrowest standard, and it was unreasonable for the Minnesota Supreme Court not to conclude the interview of T.B. was, in all relevant aspects, a form of police interrogation. First, the interview was initiated by a police officer. Second, the interview was conducted for the purpose of the criminal investigation. Although Molden contacted T.B.’s mother, the evidence demonstrates it was Detective Akerson who requested Molden to do so. Furthermore, Molden stated Detective Akerson asked her to “assist him” in questioning T.B. and
that she was not involved in the criminal investigation until Detective Akerson “asked [her] to assist him.” Third, the interview was not conducted until five days after the
abuse was first alleged, which indicates the purpose of the interview was to confirm a past allegation of abuse rather than to assess immediate threats to T.B.’s health and welfare. Because of these circumstances, this interview was no different than any other police interrogation: it was initiated by a police officer a significant time after the incident occurred for the purpose of gathering evidence during a criminal investigation.

The Eighth Circuit also points to two more recent U.S. Supreme Court Opinions, which it says “strongly supports” its conclusion:  Davis v. Washington, 126 S. Ct. 2266 (2006) (holding that statements made during a 911 emergency call were not testimonial, while statements made to a police officer after the danger had passed were testimonial); and Melendez-Diaz v. Mass., 129 S. Ct. 2527 (2009) (holding that lab analyses introduced into trial are testimonial).

The Eighth Circuit also rejected the state’s reliance on Minn.Stat. 626.526, which authorizes social workers to interview alleged victims of abuse for the purpose of protecting their health and welfare.  At the same time, the statute requires that the interview be recorded and that the social worker coordinate the interview with the police in order to eliminate the need for multiple interviews.