U.S. v. Cox, No. 16-2404 (KEITH, Batchelder, Sutton).

U.S. v. Cox, No. 16-2404 (KEITH, Batchelder, Sutton).

The defendant was sentenced to 2,880 months in prison for child exploitation and child pornography offenses. He appealed, alleging—among other things—trial errors in violation of the Confrontation Clause of the U.S. Constitution and the Federal Rules of Evidence. The Sixth Circuit affirmed the convictions and sentence.

The Sixth Circuit affirmed the district court’s decision to allow two of the victim-children to testify by closed-circuit television. Reviewing for clear error, the Court found that the district court “made an adequate case-specific showing of necessity for the use of closed-circuit television” to overcome the Confrontation Clause challenge. The district court had heard evidence from a licensed professional counselor with experience treating children who had suffered sexual abuse, and the court also questioned the children directly. Based on the expert testimony and the court’s own questioning of the children, the court found that the children would be traumatized by the presence of the defendant, that the emotional stress that would be endured was more than de minimis, and that the closed-circuit television procedure was also necessary to protect the welfare of the children.

The defendant challenged the district court’s exclusion of a number of statements of an unavailable witness that the witness was good with technology, had performed a variety of technological work in the defendant’s home (including installing cameras), and had never met one of the named defendants and met another on one occasion on the street. The defendant sought to introduce the statements as statements against interest. The Sixth Circuit held that the fact that a defendant invokes his Fifth Amendment rights does not mean the court must assume that the statements are against penal interest. The Court relied on Circuit precedent and Williamson v. United States, 512 U.S. 594 (1994) in holding that a court must break down a proffered narrative and determine the admissibility of each single declaration or remark separately. The Court found that, at least when broken up, each of the witness’s statements was either innocuous or an attempt to exculpate himself and shift the blame, and therefore not admissible under the statement-against-interest exception to hearsay.

Judge Batchelder wrote a concurring opinion in which she noted how the Confrontation Clause rights provided to most criminal suspects in Crawford v. Washington, 541 U.S. 36 (2004), and to sex-offender suspects in Maryland v. Craig, 497 U.S. 836 (1990), differ as to their nature and reach. The opinion points out a number of ways in which the two opinions differ as to their methodology, characterization of the Confrontation Clause guarantee, and relationship to the rules of evidence. “Those accused of sexually abusing children, it’s fair to say, are not sympathetic defendants,” she writes. “But Crawford explained that the Framers drafted the Confrontation Clause to ensure that those accused of the worst crimes have the opportunity to prove their innocence through a specific, time-tested procedure. Craig is in tension with, if not in opposition to, that holding. And yet, both decisions stand.”