Confronting Nontestimonial Hearsay: Colorado's Split from Sixth Amendment Precedent and What it Means in Practice

Publication year2016
45 Colo.Law. 21
Confronting Nontestimonial Hearsay: Colorado's Split from Sixth Amendment Precedent and What It Means in Practice
Vol. 45, No. 5 [Page 21]
The Colorado Lawyer
May, 2016

Articles Criminal Law

Confronting Nontestimonial Hearsay: Colorado's Split from Sixth Amendment Precedent and What It Means in Practice

By Christopher G. Breidenbach, Joseph G. Michaels.

Criminal Law articles are sponsored by the CBA Criminal Law Section and generally are 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.

Coordinating Editor

Morris Hoffman, Judge for the Second Judicial District Court, Denver

Over the past decade, the U.S. Supreme Court has revised and clarified the meaning of the Sixth Amendment’s confrontation clause. It has distinguished testimonial from nontestimonial hearsay, imposing heightened requirements for the former, while removing the latter from the amendment’s reach. The Colorado Supreme Court has long followed the U.S. Supreme Court’s lead when analyzing hearsay under Colorado’s confrontation clause. But when it comes to nontestimonial hearsay, the Colorado Supreme Court has not kept pace. This has left lower courts and practitioners navigating muddy waters when analyzing whether nontestimonial hearsay is admissible under the Colorado Constitution. This article summarizes the current state of the law, describes how federal and state confrontation clause jurisprudence diverged, and discusses what this means for trial courts and practitioners.

Criminal defendants have a right under the U.S. and Colorado constitutions to confront the witnesses against them. This means a prosecutor may not admit testimonial hearsay at trial unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine him. The Colorado Supreme Court has long held that Colorado’s confrontation clause protects the same right as its federal counterpart, but since the U.S. Supreme Court’s decision in Davis v. Washington, the meanings of the two provisions have diverged.[1] In Davis, the Court held that admitting nontestimonial hearsay does not violate the federal confrontation clause. But the Colorado Supreme Court has not yet determined whether the same is true under Colorado’s confrontation clause, and Colorado Court of Appeals decisions are mixed. Until the Colorado Supreme Court resolves this issue, trial courts and practitioners must be prepared to analyze nontestimonial hearsay differently under the federal and state confrontation clauses.

Where We Are: The State of the Confrontation Right in Colorado

Criminal defendants have a right, guaranteed by both the U.S. and Colorado constitutions, to confront witnesses against them.[2] The U.S. Supreme Court has held that the Sixth Amendment Confrontation Clause prohibits prosecutors from introducing testimonial hearsay against a defendant unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine him.[3] The Colorado Supreme Court has applied this holding to the state confrontation clause as well.[4]

"Testimonial" hearsay includes ex parte testimony, affidavits, depositions, and statements taken by police during interrogations.[5] More generally, the term includes statements for which the primary purpose is to "creat[e] an out-of-court substitute for trial testimony"[6] or to "establish or prove past events potentially relevant to later criminal prosecution."[7] Courts determine the primary purpose of a statement or interrogation by objectively evaluating the circumstances as well as the statements and actions of the parties.[8] Relevant circumstances include the existence of an ongoing emergency, the identity of the person questioning the declarant, the formality of the encounter, and the declarant’s medical condition.[9] Courts consider the statements and actions of the parties from the perspective of reasonable participants in the parties’ position.[10] For example, courts have found the following statements testimonial: a domestic violence victim’s description of an assault to police made after her attacker was arrested,[11] prior testimony at a preliminary hearing,[12] statements to police describing a domestic violence incident after it had ended and the victim was safe,[13] and a laboratory report prepared by the Colorado Bureau of Investigation stating that a tested substance contained cocaine.[14]

In contrast, when a statement’s primary purpose is something other than creating an out-of-court substitute for trial testimony, the statement is nontestimonial.[15] Examples of nontestimonial statements include a child victim’s statements to a doctor, his father, and his father’s friend;[16] statements to a 911 operator describing an ongoing emergency;[17] a co-conspirator’s statements to an undercover officer during drug deals;[18] proofs of service attached to a defendant’s driving record;[19] information contained in pen packs and certified records of prior convictions;[20] a victim’s statements to police in a parking lot shortly after he was shot and before the shooter was apprehended;[21] booking reports and a court mittimus;[22] and a child victim’s statements to his teachers implicating the defendant as his abuser.[23]

If a trial court concludes a statement is nontestimonial, that ends its analysis under the federal confrontation clause because the Sixth Amendment does not apply.[24] But the Colorado Supreme Court has not had a case that required it to decide whether the same limit applies to Colorado’s confrontation clause.[25] So if the defendant objects to a nontestimonial statement on state constitutional grounds,[26] the trial court—which remains bound to follow both high courts—must revert to an analysis created before courts recognized a constitutional distinction between testimonial and nontestimonial statements. This analysis, which the Supreme Court first articulated in Ohio v. Roberts[27] and the Colorado Supreme Court later adopted, requires the court to determine whether the declarant is unavailable and whether the statement bears sufficient indicia of reliability.[28] If both are true, the statement is admissible under the Colorado Constitution.[29]

There are two ways of showing a statement is reliable. First, courts can infer reliability if the statement falls within a "firmly rooted" hearsay exception.[30] For example, the hearsay exception for excited utterances in CRE 803(2) is firmly rooted,[31] as are the exceptions for statements for medical diagnosis or treatment under CRE 803(4),[32] statements by a co-conspirator in the course of the conspiracy under CRE 801(d)(2)(E),[33] and statements describing a then-existing physical condition under CRE 803(3).[34] Second, a statement is reliable if the circumstances that surround the making of the statement show "particularized guarantees of trustworthiness."[35]

How We Got Here: Colorado’s Split from Federal Authority

The Sixth Amendment to the U.S. Constitution states, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." The amendment was ratified in 1791, though it did not apply to state prosecutions until 1965, when the Supreme Court held it was binding on the states through the Fourteenth Amendment.[36]

Colorado’s original constitution included a similar provision (presumably because the Sixth Amendment did not yet apply to state prosecutions), which took effect when Colorado became a state in 1876 and has remained unchanged since.[37] Article II, section 16 of the Colorado Constitution provides, " [i]n criminal prosecutions the accused shall have the right . . . to meet the witnesses against him face to face . . . ."

Although the language in the two provisions is not identical, the Colorado Supreme Court has consistently recognized that Colorado’s confrontation clause protects essentially the same right and shares the same purpose as its federal counterpart: to prevent conviction by ex parte affidavits and allow defendants to test the reliability of witness testimony through cross-examination.[38] The Colorado Supreme Court has never held that Colorado’s confrontation clause provides greater protection than the Sixth Amendment.[39] On the contrary, it has long applied the same analysis to both confrontation clauses.[40] Shortly after the U.S. Supreme Court established the two-part reliability test in Roberts, the Colorado Supreme Court adopted the Roberts test and applied it to the state confrontation clause "[i]n an effort to maintain consistency between Colorado and federal law."[41] When the U.S. Supreme Court later expanded the Roberts test by eliminating the unavailability requirement,[42] the Colorado Supreme Court quickly acknowledged the change, but declined to decide whether the two-part version of the test still applied to Colorado’s confrontation clause.[43]

Two decades after creating the Roberts test, the U.S. Supreme Court abandoned it in Crawford v. Washington.[44] In Crawford, the Court concluded that the text and history of the Sixth Amendment revealed a focus not on reliability, but on testimonial hearsay (like the ex parte examinations used to convict Sir Walter Raleigh of treason in 1603).[45] It therefore held that the Sixth Amendment barred the admission of testimonial hearsay at trial unless the declarant was unavailable and the defendant had a prior opportunity to cross-examine him.[46] The Court did not resolve the fate of nontestimonial statements, but said it was "wholly consistent with the Framers’ design to afford the [s]tates flexibility in their development of hearsay law—as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether."[47]


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