The Right to Confront Witnesses After Crawford v. Washington

• Jurisdiction: United States,Federal,Colorado
• Citation: Vol. 33 No. 9 Pg. 83
• Pages: 83
• Publication year: 2004

33 Colo.Law. 83 Colorado Lawyer 2004.

2004, September, Pg. 83. The Right to Confront Witnesses After Crawford v. Washington

Vol. 33, No. 9, Pg. 83

The Colorado Lawyer
September 2004
Vol. 33, No. 9 [Page 83]

Specialty Law Columns
Criminal Law Newsletter
The Right to Confront Witnesses After Crawford v Washington
by Will Hood III, Lucia Padilla

This column is sponsored by the CBA Criminal Law Section. It features articles written by prosecutors, defense lawyers and judges to provide information about case law legislation, and advocacy affecting the prosecution, defense, and administration of criminal cases in Colorado state and federal courts.

Column Editors:

Leonard Frieling, a criminal defense attorney in private practice, Boulder - (303) 449-0092, lfrieling@lfrieling. com; and Morris Hoffman, a judge for the Second Judicial District

Court, Denver

About The Authors:

Will Hood III Lucia Padilla

This month's article was written by Will Hood III, Denver, Of Counsel at Isaacson, Rosenbaum, Woods & Levy, P.C. - (303) 292-5656, whood@irwl. com; and Lucia Padilla, Denver, an associate at the same firm - (303) 292-5656, lpadilla@irwl.com. The authors thank Terrance Carroll and Lara Marks for their research contributions while working as summer associates at the firm.

This article examines a landmark 2004 U.S. Supreme Court decision, Crawford v. Washington, in which the Supreme Court abrogated the long-standing constitutional framework for evaluating the admissibility of out-of-court statements in criminal trials.

The Sixth Amendment to the U.S. Constitution guarantees a criminal defendant the right at trial1 to be "confronted with the witnesses against him."2 Colorado's Constitution similarly provides the right at trial3 to "meet the witnesses against him face to face."4

In Crawford v. Washington,5 the U.S. Supreme Court set aside nearly a quarter century of precedent in holding that a "testimonial" statement by a witness not present at trial is inadmissible unless: (1) the witness is unavailable; and (2) the defendant had a prior opportunity for cross-examination of the witness at the time the statement was made. In reaching this conclusion, the Crawford Court overruled the now familiar, yet often unpredictable, "indicia of reliability" test set forth in Ohio v. Roberts.6

This article discusses the analytical framework for the constitutional admissibility of hearsay before Crawford. It provides a summary of Crawford and identifies some of the major questions that it left unresolved. Finally, this article explores, in a factually thematic fashion, decisions in Colorado and other jurisdictions that have emerged in the wake of the Crawford decision.

Historical Perspective

As the U.S. Supreme Court has previously noted, the right of confrontation "comes to us on faded parchment, with a lineage that traces back to the beginnings of Western legal culture."7 To appreciate the magnitude of Crawford, it is helpful to briefly examine the historical backdrop against which the decision occurred.

The origins of the right of confrontation may be traced back to Roman times.8 However, it is Sir Walter Raleigh's seventeenth century execution for treason based on the hearsay of his alleged accomplice and accuser Lord Cobham that became "the ember which stoked the fire for the right to confrontation."9 Raleigh argued that Cobham had lied to save himself. Suspecting that Cobham would recant if confronted, Raleigh demanded that the judges call him to appear, arguing that "[t]he Proof of the Common Law is by witness and jury: let Cobham be here, let him speak it. Call my accuser before my face. . . ."10 (Emphasis added.) In the United States, concerns about pre-revolutionary inquisitorial practices and other governmental abuses caused confrontation to become a central feature of the Bill of Rights.11

Although the importance of the right to confront witnesses is universally acknowledged in modern jurisprudence, the procedure for fulfilling its mandate has sparked tremendous debate. For almost a century prior to Roberts, the law seemingly required unavailability and the opportunity of "seeing the witness face to face, and of subjecting him to the ordeal of cross-examination."12 However, Professor Wigmore, the renowned evidence scholar and author, emphasized the "truth-seeking" function of the right. He maintained that evidence that meets any hearsay exception also meets the requirements of confrontation, because the reliability component required to satisfy the hearsay exception obviated the need for cross-examination.13 Gradually, this view emerged in opinions blending hearsay analysis and the law governing confrontation.14

In Roberts, the Supreme Court noted that the Confrontation Clause and the hearsay rule are "designed to protect similar values" and they "stem from the same roots."15 Thus, until Crawford, the Court had held that out-of-court statements were constitutionally admissible if: (1) the declarant was unavailable; and (2) the statements were reliable, either because they fell within a "firmly rooted" exception to the rule against hearsay or demonstrated "particularized guarantees of trustworthiness."16 In 1983, the Colorado Supreme Court adopted this approach in People v. Dement.17 In subsequent decisions, the Colorado Supreme Court held that trial courts must look at the totality of the circumstances surrounding the statement to decide whether it possessed requisite guarantees of trustworthiness.18

This approach drew heavy criticism from scholars who felt that it blurred analysis of the Confrontation Clause with notions of reliability derived from the law governing hearsay. Practitioners also bemoaned the amorphous and unpredictable nature of the Roberts/Dement inquiry and the inconsistent results it would sometimes yield. Crawford represents the culmination of these scholarly and practical concerns.

Summary of Crawford

Crawford retains the unavailability requirement, but rejects the reliability prong of the Roberts framework in favor of a test that focuses on whether the statement at issue is "testimonial":

Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one that the Constitution actually prescribes: confrontation.19

The Colorado Supreme Court recently embraced the holding in Crawford, explicitly overruling Colorado cases that had cropped up since Roberts and Dement.20

The relatively simple facts of Crawford belie the complexity of the constitutional principles involved. Crawford stabbed a man who allegedly had tried to rape Crawford's wife. Both Crawford and his wife, Sylvia, made statements about the stabbing during police interrogation. Because spousal privilege enabled Crawford to keep Sylvia off the witness stand, the state played for the jury Sylvia's tape-recorded statement to refute Crawford's claim of self-defense.

The trial court admitted the statement because it constituted a declaration against Sylvia's penal interest.21 The jury convicted Crawford of assault. Using a nine-factor test under the Roberts framework, the Washington Court of Appeals reversed. However, the Washington Supreme Court reinstated the conviction, based primarily on what it perceived as the "interlocking" nature of the statements made by Crawford and Sylvia.22 A seven-member majority of the U.S. Supreme Court reversed and remanded the case for a new trial.23

The U.S. Supreme Court first observed that the text of the Confrontation Clause is ambiguous, and turned to the historical background of the Confrontation Clause to support two principles. First, the primary evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, particularly the use of ex parte examinations of those who "bear testimony" as evidence against the accused. Second, the Framers of the U.S. Constitution would not have admitted testimonial statements of a witness unless he or she was unavailable to testify and the defendant had had a prior opportunity to cross-examine the witness.24 The Court found that, although the results of its decisions had generally remained faithful to these principles, the rationales employed by the Court had not.25

The Court also found that the Roberts framework is unpredictable: "Whether a statement is deemed reliable depends heavily on which factors the judge considers and how much weight he accords each of them."26 In making this point, the Court cited two Colorado Supreme Court decisions.27

The U.S. Supreme Court decided to "leave for another day any effort to spell out a comprehensive definition of 'testimonial.'"28 Instead, the Court discussed proposed formulations of a "core class" of testimonial statements, noting that some statements qualify under any definition. Some foraging through the opinion reveals that these statements are made during: (1) police "interrogations" - the latter term employed "in its colloquial, rather than any technical, legal sense";29 (2) prior trial testimony; (3) preliminary hearing testimony; and (4) grand jury testimony.30

The Court also stated that business records and statements in furtherance of a conspiracy are examples of types of hearsay that do not qualify as "testimonial."31 Finally, the Court noted that dying declarations may be exempt from Confrontation Clause scrutiny on historical grounds.32

Major Issues Left
Unresolved by Crawford

The U.S. Supreme Court's vague discussion of what constitutes a "testimonial" statement is the most significant of several major...