Crawford at Two: Testimonial Hearsay and the Confrontation Clause - May 2006 - Criminal Law
| Publication year | 2006 |
| Pages | 47 |
2006, May, Pg. 47. Crawford at Two: Testimonial Hearsay and the Confrontation Clause - May 2006 - Criminal Law
May 2006
Vol. 35, No. 5 [Page 47]
Criminal Law
Crawford at Two: Testimonial Hearsay and the Confrontation Clause
by H. Patrick Furman
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.
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This article addresses the response of Colorado courts, and that of certain other jurisdictions, to the 2004 U.S. Supreme Court decision in Crawford v. Washington.
On March 8, 2004, the U.S. Supreme Court handed down Crawford v. Washington,(fn1) significantly changing the landscape of hearsay law. Crawford established a new rule by which a certain category of hearsay evidence offered against a criminal defendant must be evaluated. "Testimonial hearsay" was deemed inadmissible unless the defendant had an opportunity to confront and cross-examine the declarant at the time the statement was made.
Since Crawford, virtually all state and federal circuit courts have attempted to delineate the precise boundaries of "testimonial hearsay." This article, on the two-year anniversary of the Court's decision, provides an overview of many of these cases, specifically focusing on Colorado opinions.
Crawford v. Washington
The facts of Crawford were simple. The defendant was on trial for stabbing a man he believed had raped his wife. He claimed self defense. The trial court admitted a tape-recorded statement, made by the defendant's wife to police officers, that undercut the defense. The wife did not testify at trial because of the marital privilege.(fn2)
The U.S. Supreme Court used this setting to re-evaluate the Sixth Amendment right of an accused to confront his or her accusers. The Court determined that the primary object of the amendment was to provide protection against the improper admission of testimonial statements.(fn3) The Court held that when "testimonial hearsay" is offered against a criminal defendant, the Sixth Amendment requires that the witness be unavailable to testify and that the defendant had an opportunity for cross-examination at the time the statement was made.(fn4)
Because the Supreme Court provided little guidance for the application of the "new" rule, lower courts have been struggling with the decision. Significantly, the Court declined to explicitly define "testimonial hearsay," stating that it would instead "leave for another day any effort to spell out a comprehensive definition of 'testimonial.'"(fn5)
History of the Confrontation Clause
The Court's analysis of the history of the Confrontation Clause was central to its decision that the Sixth Amendment required more protection than had been provided by previous decisions. The Court conducted a comprehensive review of early English statutes, common law, colonial practices, and early state constitutions and decisions before concluding that this historical record supported two propositions.(fn6) First, it supported the proposition that the principal evil addressed by the Confrontation Clause was "the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused."(fn7) Second, this history supported the proposition that the Framers would not have allowed the admission of testimonial statements of a witness who did not appear at trial unless the witness was unavailable to testify and the defendant had a prior opportunity to cross-examine him or her.(fn8)
The central purpose of the Confrontation Clause is to ensure that testimony introduced against an accused is reliable.(fn9) Although there are many ways to ensure reliability - most hearsay exceptions are based on reliability grounds - Crawford held that the Confrontation Clause requires that reliability be established by rigorous testing of the sort that occurs in an adversary proceeding before a trier of fact.(fn10) The American judicial system always has placed great value on cross examination as essential to determining the truth of a matter. Crawford takes this a step further and makes the opportunity to cross-examine a precondition to the admission of certain types of hearsay statements.
What is Testimonial Hearsay?
Dictionary definitions served as a starting point for the Court when defining "testimonial hearsay" that might offend the Confrontation Clause. The Court defined "testimony" as "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact."(fn11) The Court also drew a distinction between formal statements (which might be testimonial hearsay) and casual remarks (which generally would not be testimonial hearsay): "An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not."(fn12)
The Court then listed three possible formulations of "testimonial hearsay":
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";
2) "extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions"; and
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."(fn13)
Although it did not explicitly adopt any of these formulations, the Court noted that they all "share a common nucleus."(fn14)
The Court then provided examples of statements that clearly are included within any of these formulations, stating that "at a minimum," testimonial hearsay includes prior testimony at a preliminary hearing, at a prior trial, or before a grand jury, as well as police interrogations.(fn15) However, even this list of core statements has significant limitations. For example, the Court specifically defined statements made in police interrogations as testimonial, but then stated that "[j]ust as many definitions of 'testimonial' exist, one can imagine various definitions of 'interrogation.'"(fn16)
Practice Tip: Objections
Crawford was based on the federal Confrontation Clause, but counsel may object on both federal and state constitutional grounds. Courts generally will not assume that an objection is based on both constitutions; if one constitutional ground is not raised, that issue will be deemed waived unless the reviewing court finds that it was plain error for the trial court to fail to consider it sua sponte.(fn1)
As this article makes clear, Colorado opinions suggest that the state constitutional protection is identical to the Sixth Amendment protection. However, it should be noted that the Colorado Constitution uses different - and arguably stronger - language than the Sixth Amendment. The Sixth Amendment guarantees the right of a defendant "to be confronted with the witnesses against him," and Article II, § 16 of the Colorado Constitution guarantees the right of a defendant to "meet the witnesses against him face to face." At least one court reviewing identical language in another state constitution held that the language created a state constitutional protection greater than that created by the federal Constitution.(fn2) This greater protection, however, did not result in an expansion of the defendant's Crawford-type confrontation right.
A defendant's right to object on Confrontation Clause grounds also is limited by the continued viability of the rule that defendants forfeit their constitutional right to confrontation with respect to witnesses when their own behavior results in the witness's absence.(fn3) This rule has been applied by Colorado courts. In People v. Moore,(fn4) the court of appeals refused to allow a defendant to contest the introduction of excited utterances made by his wife when his own actions caused her death and rendered her unavailable.(fn5)
1. United States v. Solomon, 399 F.3d 1231, 1237-38 (10th Cir. 2005).
2. State v. Maclin, 2006 WL 120341 (Tenn. 2006).
3. Crawford v. Washington, 541 U.S. 36, 62 (2004).
4. People v. Moore, 117 P.3d 1, 5 (Colo.App. 2004).
When Does Crawford Apply?
Before trying to make sense of these definitions and lists, practitioners first must ask: does Crawford even apply to the situation at hand? Crawford does not apply to all criminal proceedings, because the Sixth Amendment right to confront one's accusers is a trial right.(fn17) Colorado courts have held that Crawford does not...
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