33rd / 424th District Courts

keywords: confrontation clause, sixth (6th) amendment.
The case: Crawford v. Washington, ___ U.S. ___, 124 S. Ct 1354 (2004) (158 L.Ed.2d 177, 72 USLW 4229, 63 Fed. R. Evid. Serv. 1077, 4 Cal. Daily Op. Serv. 2017, 2004 Daily Journal D.A.R. 2949).

Expressly overrules Ohio v. Roberts, 448 U.S. 56 (1980). Roberts had admitted earlier testimony under (federal) Rule 804(b)(1) where the declarant was absent if the state satisfied a 2-part test: (1) it was unable to produce the witness despite a good faith attempt to do so; and (2) the hearsay statement is sufficiently reliable by either falling under a traditional hearsay exception or if the statement could make a showing of "particularized guarantees of trustworthiness." Roberts, 448 U.S. at 66.

Note: Much of the following analysis is taken from a paper presented by the Hon. Linda B. Thomas, Chief Justice, 5th Court of Appeals, Dallas presented at the 2004 Annual Judicial Conference.

Facts: D Crawford stabbed a man who allegedly tried to rape his wife, Sylvia. D was tried for assault and attempted murder and claimed the stabbing was in self-defense. Sylvia did not testify at trial due to the marital-privilege being invoked. HOWEVER, during a police interrogation she provided a statement that appeared to contradict D's self-defense claim. Sylvia's statement was admitted into evidence.

Issue: Whether the admission of Sylvia's statement violates D's Sixth Amendment "right to be confronted with the witnesses against him."

Holding: The State's use of Sylvia's statement violated the Confrontation Clause. When testimonial statements are at issue, the Confrontation Clause demands that the witness be unavailable and there must have been a prior opportunity for cross-examination. Id. at ___, 124 S.Ct. at 1356.

Rationale: The Court concludes that the principal evil at which the Confrontation Clause was directed was the use of ex parte examinations of witnesses against a defendant at a criminal trial. Based upon a historical analysis, the majority finds that the Clause's ultimate goal is to ensure reliability of evidence and it demands that reliability be assessed in a particular manner: "by testing in the crucible of cross-examination." Id. at ___, 124 S.Ct. at 1370.

Getting that far is fairly easy. For starters, note that we're talking about a situation where the witness is not available for trial. Sylvia was legally not available once the marital privilege was invoked. The question then is whether the statement is testimonial. If it's testimonial, it's out. If not testimonial, then it may come in if it meets one of the usual indicia of reliability such as one of the established exceptions to the hearsay rule or can be found to "otherwise reliable."

How do you tell if it's testimonial in nature? For starters, if the government is involved it's probably testimonial. The Crawford Court declined to provide a definition or test for making the determination but there is a non-exhaustive list of examples of statements that are testimonial: ex-parte testimony at a preliminary hearing, material such as affidavits, depositions or interrogations by law enforcement officers, prior testimony that the defendant was unable to cross-examine, or "similar pretrial statements that declarants would reasonably expect to be used prosecutorially." Id. at ___, 124 S.Ct. at 1364 (emphasis mine).

There are also examples of statements that are not testimonial: business records and statements in furtherance of a conspiracy. Id. at ___, 124 S.Ct. at 1367.

An open question -- Dying Declarations: The Court specifically declined to address whether the Sixth Amendment incorporates an exception for testimonial dying declarations but the opinion does point out that historically this has been treated as an exception. Id. at 1367, fn.6.

Forfeiture of the Right of Confrontation: The D will forfeit his right if he causes the absence of the declarant. I.e. if the shooting victim makes a statement to an officer at the scene and then dies, D caused the absence and lack of ability to confront and therefore forfeits his confrontation claim. Id. at 1370.

A couple of "bright line" tests, at least in my mind:
-- Focus on what the "reasonable person" would reasonably expect to be used prosecutorially. A formal statement to a detective seems pretty obvious. But what about the chattering guy in the back of the patrol car being hauled in? What about a 911 call? If Sally's door is being crashed in by Johnny and she screams over the phone during the 911 call "Johnny's at the door with a gun" and later she is found shot, did Sally expect her statement to be used prosecutorially? Possibly not. But if Freddy across the hall makes the call that Johnny is breaking down Sally's door and has a gun in his hand, might he reasonably expect that statement to be used? I think so and it might have to be if Johnny shoots him also!
-- Is the government involved? If so, start off on the assumption that it's testimonial and try to argue out of it if you are trying to get it admitted.

This case was decided only March of 2004. Already on Westlaw I got 600 hits from the KeyCite. Fortunately, Justice Thomas culled a number of cases finding, and not finding, the testimonial nature.

Examples where statements were found to be admissible
-- Videotaped forensic interview of child sex abuse victim. Child testified at trial, thus Crawford no applicable. People v. Martin 2004 WL 605440 (Cal.App. 1 Dist., 2004).
-- Unavailable witness' prior testimony from a preliminary hearing where D had an opportunity to cross-examine, but had not done so. Merely the opportunity satisfies the Confrontation Clause. State v. Young, 2004 WL 757815 (Kan, 2004); Primeaux v. State, 2004 WL 728402 (Okla. Crim. App., 2004).

Examples where statements were found to be inadmissible
-- The "plea minutes" (I take that to mean the reporter's record) of a co-defendant. Those fall within a hearsay exception (statements against penal interest) but the Confrontation Clause demands presence of the declarant. People v. Carrieri, 2004 WL 877564 (N.Y. Sup. 2004).
-- Non-joined co-defendant's confession to police. He was unavailable due to invoked the 5th. State v. Pullen, 2004 WL 834219 (N.C. App. 2004).
-- Police report used in probation revocation hearing. No opportunity to cross-examine the witness who made the report. United States v. Jarvis, 2004 WL 603446 (9th Cir. 2004).
-- Statement to Justice Department attorney investigating an antitrust case. U.S. v. Saner, 2004 WL 771160 (s.D. Ind. 2004).
-- Child victim statement to CPS social worker. Determined to be testimonial because they were made for the express purpose of presenting them at trial under the state's "tender years" statute. Snowden v. State, 2004 WL 719245 (Md. App. 2004).

Examples where the statements were determined to be nontestimonial
-- Statement of child murder victim made to her mother that her head hurt following her being in the care of D. Held not testimonial and admissible under the declaration of then-existing exception to the hearsay rule. People v. Becerra, 2004 WL 576246 (Ct. App. Cal (4th Dist.) 2004).
-- Child's statement to interviewer at the Children's Assessment Center (which I take to be the equivalent of our child advocacy center). Court determined that because the interviewer was not a government employee, the statement was nontestimonial. Further, the child's answer to the question of whether she had an "owie" was not a statement in the nature of an "ex parte in-court testimony or its functional equivalent." Michigan v. Geno, 2004 WL 893947 (Mich. app. 2004). Frankly, I disagree with that decision to the extent that it is based on the interviewer not being a govenment employee.
-- statements of an indicted co-conspirator made in furtherance of the conspiracy are nontestimonial. U.S. v. Reyes, 2004 WL 613071 (8th Cir. 2004). I think certainly the conspiratorial discussion is not reasonably expected to be used in the prosecution.

Thank you, Justice Thomas.