The case of Ricky Lee Allshouse v. Pennsylvania is on petition for certiorari before the United States Supreme Court raising the issue of whether the defendant was denied his right of confrontation under the Sixth Amendment by the admission into evidence at trial of his statements to a child protection worker.

Allshouse involves a case of child abuse on an infant where the infant’s brother told a child protection case worker about the abuse committed by the infant’s father. At trial, the State of Pennsylvania admitted the statements pursuant to a Pennslyvania statute authorizing the admission of the testimony as long as the judge finds it reliable.

The criminal defense lawyer objected arguing that the Sixth Amendment to the Constitution precludes the admission of these statements. The Pennsylvania Court affirmed holding that the purpose of the child protection worker was investigatory. The Pennsylvania Supreme Court held that the statements were nontestimonial because in response to an ongoing emergency.

The US Supreme Court remanded the case to the Pennsylvania Supreme Court which again affirmed.

In its petition for certiorari, the defense argued that the issue is of paramount importance requiring guidance from the United States Supreme Court. Both parties for the State and defendant supported the United States Supreme Court granting certiorari, based on the division among lower courts regarding whether statements to child protection workers are testimonial under the Sixth Amendment.

In its brief, the defense argued that statements made to a child protection worker are elicited during an ex parte interview and are in particular need of the adversarial testing granted by the Confrontation Clause. The criminal defense lawyers cited studies showing the degree to which children are susceptible to being influenced, creating a special risk of false convictions.

The defense acknowledged that special accommodations can be made to decrease the stress to the child of testifying, but that the State cannot dispense with the right of confrontation entirely in favor of trial by ex parte affidavit.

Relying on the Davis/Hammon decision, the defense lawyers argued that a witnesses statement to a child protection worker investigating past abuse is testimonial in the same way a witness who complains to the police about past abuse was ruled to be testimonial in Hammon. While acknowledging that the Court has had difficulty constructing the outer boundaries of testimonial, the defense brief asserted that a statement of a witness falls within the core meaning of testimonial.

The defense argued that the Court should reject the argument that the fact that the child protection worker is not a police officer renders the statement nontestimonial. Instead, the defense argued it is the child protections workers primary purpose, which is investigatory, that renders the statement testimonial.

As a Massachusetts criminal defense lawyer, I would expect the United States Supreme Court to reverse the conviction if certiorari were granted. What will make the decision of interest is how Justice Thomas votes in the case. I would expect the dissenting Justice in Williams v. Illinois to remain unified. Justice Thomas vote would be interesting because it does not appear that the statement to a child witness were made under oath. Justice Thomas concurrence in Williams seemed to suggest his test involved whether the statement was a formal statement similar to an oath or affirmation and that an informal interview may not be testimonial. Given Justice Thomas’ vote in the Crawford decision, I do not believe he could find the statement non testimonial in this matter and expect that the United States Supreme Court would reverse the conviction.