A woman walks into a police station bleeding, saying that her ex-boyfriend has just punched her in the face. Police officers go to the ex-boyfriend's home, and when he answers the door they ask him where he was when the alleged assault occurred. The man motions to his sister sitting on the couch and says that he was watching TV with her the entire night. When the officers attempt to talk to the sister, she is unresponsive. The brother explains that the sister has schizophrenia and probably won't speak to them. On the basis of the victim's account and the lack of a verifiable alibi, the officers arrest the ex-boyfriend. As he and his attorney prepare for trial, they would like to present an alibi defense, but they are unsure whether the sister may become unresponsive in a formal courtroom setting, as she did with the police officers, and they are concerned about the effects on her mental health of having to testify in court.
This hypothetical example is one of several instances in which the testimony of a person with severe mental illness may be crucial to one side's argument in a criminal case. People with severe mental illnesses are crime victims in disproportionate numbers (1). Like the rest of the population, they can also witness crimes and be called upon to provide alibis. The frequency with which people with severe mental illness are asked to be witnesses has likely increased with the growing prevalence of community-based treatment, because their presence in the community makes them more likely to be the observers or targets of criminal events. Furthermore, as one scholar has noted, the testimony of a person with mental illness may be integral not only to the criminal case at bar: "Admission and acceptability of testimonies by individuals with mental illness is one more step toward the integration of that population into the community as citizens with equal rights and responsibilities" (2).
Attorneys face challenges in procuring the testimony of someone with a severe mental disorder. There may be no question as to the person's competence to testify—that is, the witness can recount events, knows the difference between the truth and a lie, and understands that false statements are punishable as crimes (3). Yet the witness's mental illness, combined with the pressures any person experiences when testifying, may keep her from reaching the witness stand. Alternatively, if the witness does appear in court, she may be cowed by the setting and become unresponsive or disruptive and endure the risk of a psychological response that brings harm to her or the party for whom she is testifying.
In the 1990s, partly in response to these challenges, seven states enacted statutes that in certain circumstances permitted litigants to use out-of-court statements made by people with mental disorders that would normally be barred as hearsay. Litigants could benefit from the introduction of certain evidence without taking the risk that testifying witnesses with mental illness might say or do something in court that would be harmful to the litigants or to themselves. However, two U.S. Supreme Court cases from 2004 and 2006, not dealing specifically with witnesses with severe mental illness, placed substantial limits on the use of out-of-court statements under these state laws.
Hearsay is the in-court use of an out-of-court statement for the truth of the matter asserted in that statement, and it is generally inadmissible (4). For instance, if the witness to a crime told a police officer what she had seen, the police officer could not testify in court as to what the witness said. The witness herself would have to testify in court to the events she observed. The police officer's testimony is barred as hearsay because the officer lacks personal knowledge of the events he would be asked to recount. However, no U.S. jurisdiction absolutely bars hearsay. The Federal Rules of Evidence, for example, contain numerous, long-established exceptions to the hearsay ban. These exceptions for the most part reflect a belief that certain statements that are not made under oath are nonetheless reliable because of the context in which those statements are made. However, legislators have not always been content with these long-established exceptions. They have carved out other exceptions based on the type of crime or victim involved, as opposed to the type of statement made. The new hearsay exceptions likely reflect either the belief that prosecutors need more tools to go after certain criminals or the related belief that certain victims need extra attention and protection.
Legislators first crafted special hearsay provisions for child victims of abuse. As state legislators ramped up the punishments for child abuse in the 1980s, they also made it easier for prosecutors to present the testimony of a child victim who was competent to testify yet unable or unwilling to do so in front of a jury (5). Similarly, the 1990s saw a new prosecutorial focus on crimes committed against the elderly and persons with mental illness (6). Between 1993 and 2000 seven states (California, Delaware, Florida, Illinois, Oklahoma, Oregon, and Vermont) exempted from the hearsay ban certain out-of-court statements related to crimes committed against persons in these categories (7,8,9,10,11,12,13). The statutes in these states are modeled on the child hearsay provisions and were enacted in part because the trait that made someone an attractive victim—their age, mental illness, or disability—could also result in their abuser's not being punished should the victim not be able to testify in court.
The statutes are far from identical in their scope and requirements for the admission of out-of-court statements that would normally be excluded as hearsay. The California statute, for instance, applies only where the defendant is charged under a provision specifically dealing with crimes against the elderly and so-called "dependent adults," who include persons with "mental limitations which restrict his or her ability to carry out normal activities or to protect his or her rights." A law enforcement official is required to videotape the out-of-court statements sought to be used. In contrast, the Illinois hearsay exception covers a litany of crimes perpetrated against someone who is severely mentally ill or retarded and does not require videotaping. Florida's statute also does not require videotaping and permits the use of out-of-court statements in certain civil proceedings in addition to criminal proceedings.
Admission of hearsay evidence against a defendant in a criminal trial raises constitutional concerns derived from the Sixth Amendment's confrontation clause. Thus, even if a state wants to permit the use of certain out-of-court statements, the Constitution is an independent check on their use. On its face the Sixth Amendment gives criminal defendants the right to confront, or question, the witnesses against them. However, the U.S. Supreme Court has not always interpreted the Sixth Amendment literally. In the 1980s and 1990s, when the special hearsay statutes came into being, the Court interpreted the clause flexibly, generally permitting the use of an out-of-court statement where a court satisfied itself that the statement was reliable (14). Indeed, the special hearsay statutes incorporate this test, providing, for instance, that an out-of-court statement can be admitted only where it is "shown to possess particularized guarantees of trustworthiness" or where "the time, content, and circumstances of the statement provide sufficient safeguards of reliability."
But in Crawford v. Washington in 2004, the Supreme Court held that the confrontation clause barred any out-of-court statement that is testimonial in nature, even if a judge would find that statement reliable, if the person who made the statement was unavailable to testify and the defendant did not have a prior opportunity to cross-examine the person (15). The Court has not defined the outer bounds of what constitutes a testimonial statement, but Crawford makes it clear that at the very least the category includes statements made in a formal interview for the purposes of criminal investigation and prosecution.
Following Crawford and a subsequent case, Davis v. Washington (16), any statement made pursuant to statutes such as California's is barred as testimonial, because the statute requires that a law enforcement officer videotape the statement, which necessarily entails a formal interview process for the purposes of criminal investigation. The other state statutes do not have a videotaping requirement, but Crawford and Davis reduce the relevance of the open-ended inquiry into reliability that these statutes, following the confrontation clause analysis of the 1980s and 1990s, put into place. A subset of statements could still be admitted under these statutes (where the statements are nontestimonial and reliable). However, the subset is small, because "testimonial" appears to encompass statements made in any situation where the questioner is conducting an interview for law enforcement purposes. Statements that a person with a mental illness makes to police, prosecutors, or medical personnel are inadmissible if they were solicited for the purposes of building a criminal case.
The gravitation toward special hearsay statutes is understandable, especially among prosecutors. A prosecutor may be justifiably convinced that a certain crime occurred—for example, that a man physically abused his mentally ill wife. The wife may be able to tell the prosecutor what happened but be unable or unwilling to tell the same to the jury (in fact, this scenario plays out every day among victims who do not have mental illness). After losing a few cases involving victims with mental illness, the prosecutor believes that she needs a new tool, a new hearsay exception that will even out the playing field or tilt it to her advantage. But before petitioning the legislature for a new carveout to the hearsay rule, the prosecutor has existing tools that she can exhaust.
A look at the Federal Rules of Evidence, the provisions of which have been adopted almost word for word in many state evidence codes, is instructive. Rule 803 contains numerous hearsay exceptions permitting the use of out-of-court statements for their truth. Several of these exceptions are applicable to cases involving witnesses with mental illness who do not testify. The first three exceptions, permitting the use of "present-sense impression(s)," "excited utterance(s)," and statements of "then-existing mental, emotional, or physical condition," would cover statements that a person with mental illness makes shortly before, during, or shortly after a crime's occurrence. For instance, if a person called 911 and said, "Please come quickly.… I'm scared, my boyfriend just attacked me with a chair, he hit me in my stomach, I can hardly breathe.… I see him in the parking lot with the chair," her entire statement to the 911 operator would be admissible under one or more of these exceptions, even if she did not testify in court.
In a case involving a witness with mental illness, the most important exception may be Rule 803(4), providing for the admissibility of "statements for purposes of medical diagnosis or treatment." The exception covers "statements … describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." The rationale for the hearsay exception is "selfish interest," the belief that people tell the truth to medical care providers, because lying imperils the effectiveness of the medical care they receive (17). A generous interpretation of Rule 803(4), for example, would admit statements that a battered woman made to a nurse—for example, how and where she got hurt—while the woman was being treated in the emergency room.
Finally, prosecutors can get around any confrontation clause problems by simply putting the witness with severe mental illness on the stand. However, prosecutors may have a host of concerns with doing so. The witness may be unresponsive, disruptive, delusional, or hurtful to the prosecution's case—hence the existence of special hearsay statutes. Or he or she may be coherent and persuasive. Without the benefit of foresight, however, prosecutors might err on the side of caution and keep the witness out of court. If the courts are to give full effect to the testimony of a witness with mental illness, a narrowly tailored hearsay exception may still be needed. Defendants—whose alibi witness or other witnesses may be severely mentally ill—may benefit from such an exception as well. The special hearsay statutes enacted in the 1990s helped only the prosecution. Because those statutes are for the most part unconstitutional, the opportunity exists to rewrite them to permit the limited use of out-of-court statements by any witness with mental illness, regardless of whether that witness is called by the prosecution or defense.
A possible approach that would not offend the confrontation clause would be to have the witness testify in a location less formal than a courtroom, perhaps a judge's chambers or law office. Both parties would have rights identical to what they would have in open court (including the right to cross-examination). The witness's testimony would be videotaped and later played to the jury. The number of people present would be kept to a minimum, perhaps only the witness, judge, prosecutor, defendant, defense counsel, and videographer. This approach resembles Vermont's special hearsay statute.
With such a statute, the reliability of the witness's statements would be tested through full cross-examination, as it would be in open court. Furthermore, the opportunity for cross-examination would satisfy a defendant's Sixth Amendment rights, even if the witness did not testify at trial. The jury, later watching the taped testimony, could evaluate the witness's demeanor and make a determination as to whether the witness has been manipulated or has impaired perception, memory, or veracity. For the witness, the risk of traumatization would be reduced, although not eliminated. For instance, the witness with mental illness would still be subject to rigorous cross-examination, and if the witness was also a victim, she would be in the same room as her attacker. However, for the witness and the proponent of the witness's testimony, even a modest reduction in the risk of traumatization may be better than exposing the witness to all the stresses of the courtroom. Under this alternative, a litigant whose essential witness has a severe mental illness is more likely to put that witness on the stand than currently, because the benefits of doing so remain the same while the costs would be reduced. The Supreme Court decisions in Crawford and Davis give legislators another opportunity to craft better hearsay statutes, narrowly tailored to the problem, an opportunity that they should be encouraged to seize.