A child witness was available for confrontation purposes under the 2004 U.S. Supreme Court case of Crawford v. Washington where the lack of cross-examination resulted from a strategic election by the defendant and the witness could have been cross-examined on, for example, her memory and understandings of truth and fantasy. Following a jury trial, Cameron M. was convicted of risk of injury to a child in violation of C.G.S. §53-21(a)(1) and §53a-21(a)(2) in connection with the alleged oral sexual contact with the buttocks and genitals of his daughter when she was approximately three years old. The defendant appealed claiming, inter alia, that the trial court improperly admitted into evidence a video recording and transcript of a multidisciplinary forensic interview of the victim pursuant to the tender years exception to the hearsay rule, Connecticut Code of Evidence §8-10, and in violation of Crawford. He essentially contended that the tender years exception must be read consistently with Crawford's preclusion of testimonial hearsay and the Supreme Court's 2007 decision in State v. Arroyo, concluding that statements made during a multidisciplinary forensic interview were not testimonial, was distinguishable and wrongly decided. The Supreme Court affirmed the judgment relying on the state's proffered alternate ground for affirmance, that the forensic interview was admissible substantively as a prior inconsistent statement under the 1986 Connecticut Supreme Court case of State v. Whelan. The defendant's confrontation rights under Crawford were not violated because the victim testified at trial and could have been cross-examined. The defendant's claim was rejected that the victim, then six years old, was "functionally unavailable" because she could not remember the forensic interview, other than going to it, or the allegations from three years earlier due to her age. The Court previously rejected the functional unavailability theory including in its 2008 decision in State v. Simpson. Simpson was not distinguishable based on the defendant's election not to cross-examine the victim. Whelan provided a proper alternate evidentiary basis to admit the forensic interview because the victim testified to not remembering the interview or the period surrounding the abuse and denied any abusive behavior by the defendant. Whelan is not limited to feigned memory loss, as contended. The record was inadequate to review the defendant's unpreserved double jeopardy claims.

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