§ 36.05 CONFRONTATION AND HEARSAY

• Jurisdiction: United States

§ 36.05. CONFRONTATION AND HEARSAY

Because a hearsay declarant is, in effect, a witness, a literal application of the Confrontation Clause would preclude the prosecution from introducing any hearsay statement, notwithstanding the applicability of a recognized hearsay exception.⁴² The Supreme Court has never adopted such an extreme view.⁴³

The Clause also could be interpreted as requiring only the right to cross-examine in-court witnesses and not out-of-court declarants. Under this view, all hearsay exceptions would satisfy constitutional requirements. The Supreme Court also has rejected this view, writing that although the Confrontation Clause and the hearsay rule "stem from the same roots," the Court "has never equated the two."⁴⁴ In a later case, the Court noted: "[W]e once again reject the view that the Confrontation Clause applies of its own force only to in-court testimony. . . ."⁴⁵

Instead of adopting either of these two approaches, the Court has attempted to steer a middle course, a task that has proved elusive.⁴⁶ Indeed, the Court is still attempting to define the relationship between the Confrontation Clause and the hearsay rule.

[A] Ohio v. Roberts

In Ohio v. Roberts,⁴⁷ decided in 1980, the Supreme Court identified two values underlying the Confrontation Clause: the "Framers' preference for face-to-face accusation" and an "underlying purpose to augment accuracy in the factfinding process."⁴⁸ From these values, the Court derived a two-pronged analysis that focused on (1) the unavailability of the declarant⁴⁹ and (2) the reliability of the hearsay statement.⁵⁰ Reliability was presumed for "firmly rooted" hearsay exceptions; otherwise, a showing of "particularized guarantees of trustworthiness" was required.

In subsequent cases, the Court found a number of hearsay exceptions "firmly rooted" — co-conspirator admissions, excited utterances, and medical diagnosis.⁵¹ In a child abuse case involving the residual hearsay exception, it also defined what was meant by "particularized guarantees of trustworthiness."⁵² Further, in Lilly v. Virginia,⁵³ the Court held that a declaration against interest in the form of an accomplice's confession to the police, which also implicated the defendant, did not fall within a firmly rooted exception. As for the second prong of the Roberts test (unavailability), the Court soon cut back on its potential impact, limiting it to cases involving the former testimony exception.⁵⁴

[B] Crawford v. Washington

And then the sky fell. The Court, in Crawford v. Washington,⁵⁵ decided in 2004, jettisoned nearly 25 years of confrontation jurisprudence by overruling Roberts. Crawford rejected reliance on reliability as a relevant factor. Instead, the Court focused on cross-examination as the determinative consideration when hearsay statements have a "testimonial" component.

The defendant was charged with assault and attempted murder. To rebut his claim of self-defense, the prosecution offered a statement made by his wife during a videotaped stationhouse interrogation, as a declaration against her penal interest. Asserting the spousal privilege, she did not testify at the trial.⁵⁶

Justice Scalia, writing for the majority, quickly dispatched Roberts.⁵⁷ It was too unpredictable, too amorphous, and too subjective.⁵⁸ More importantly, the "Roberts test allows a jury to hear evidence, untested by the adversary process, based on a mere judicial determination of reliability. It thus replaces the constitutionally prescribed method of assessing reliability [cross-examination] with a wholly foreign one."⁵⁹ The Confrontation Clause, in his view, "commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination."⁶⁰

History. Much of the Crawford opinion traced the historical roots of the Confrontation Clause. Sir Walter Raleigh's 1603 trial for treason was cited as the paradigmatic example of abuse. In that case, Lord Cobham, an alleged accomplice, implicated Raleigh in an examination before the Privy Council and in a letter. Raleigh argued that Cobham had lied to save himself, and so Raleigh demanded the right to confront his accuser face-to-face. The judges refused to call Cobham, and Raleigh was found guilty and sentenced to death. In addition, statutes from the time of Queen Mary also imported inquisitorial procedures into English legal practice. These Marian statutes involved ex parte examinations at bail and commitment hearings. As with Raleigh's trial, they were later denounced in both England and the colonies as "trial by affidavit."

In the Crawford majority's view, history established two insights. "First, the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused."⁶¹ Hence, out-of-court "testimonial" statements were the root concern of the Framers, rather than off-hand remarks. The second inference that can be drawn from history, according to the Court, was "that the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination."⁶²

Although the Court noted that the results (if not the rationale) of most of its past cases were consistent with this new approach, Crawford has had have far-reaching consequences.

[C] "Testimonial" Statements

The critical task is defining what "testimonial" means in this context. Although the Crawford Court wrote that it was leaving for another day any effort to spell out a comprehensive definition of the term, it quoted several possible definitions. In one passage, the Court cited three definitions of "testimonial" without adopting any:

(1) "ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially" [petitioner's brief];
(2) "extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions," [taken from Justice Thomas's concurrence in White];
(3) "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial" [brief for defense lawyers association].⁶³

In addition to a definitional approach, the Court identified certain types of statements with testimonial characteristics, contrasting them with casual or off-hand remarks, which do not qualify as testimonial.⁶⁴ First, the Court mentioned (1) affidavits and (2) testimony at preliminary hearings, former trials, and grand juries.⁶⁵ Second, statements to law enforcement officers were repeatedly singled out in Crawford.⁶⁶ These statements can take various forms — e.g., declarations against interest as in Crawford. The Court, however, emphasized "interrogation" and "structured" questioning.⁶⁷

[1] Davis v. Washington

The Supreme Court consolidated two domestic violence cases for review in Davis v. Washington.⁶⁸ In Davis, Michelle McCottry made a 911 call, stating that her former boyfriend, Davis, had assaulted her and just fled the scene. Davis was tried for violating a domestic no-contact order. Although McCottry did not testify, the 911 recording was admitted at Davis' trial. Writing for the majority, Justice Scalia commented:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.⁶⁹

Applying the "primary purpose" test, Justice Scalia wrote that the 911 call, at least initially, was not designed primarily to establish or prove past facts but to relate current circumstances requiring police assistance — i.e., McCottry was speaking about contemporaneous events as they were occurring; her call was a cry for help, unlike the interrogation in Crawford, which occurred in a police station, hours after the crime. In the Court's view, even inquiring about the identity of the assailant was primarily for the purpose of resolving an ongoing situation. Ascertaining the identity of the assailant was important to the police's rescue mission because the dispatched officers needed to "know whether they would be encountering a violent felon."⁷⁰ The Court then wrote:

[F]inally, the difference in the level of formality between the two interviews is striking. [Mrs.] Crawford was responding calmly, at the station house, to a series of questions, with the officer-interrogator taping and making notes of her answers; McCottry's frantic answers were provided over the phone, in an environment that was not tranquil, or even (as far as any reasonable 911 operator could make out) safe.
We conclude from all this that the circumstances of McCottry's interrogation objectively indicate its primary purpose was to enable police assistance to meet an ongoing emergency. She simply was not acting as a witness; she was not testifying.⁷¹

[2] Hammon v. Indiana

In the second case, Hammon v. Indiana, the police responded to a domestic disturbance report. When the officers arrived at the residence, Amy Hammon told them that nothing was wrong but permitted them to enter. One officer kept Hershel Hammon, her husband, in the kitchen while the other interviewed Amy. She completed and signed a battery affidavit but did not appear at trial. The officer's testimony about her statements as well as...