Chapter 6 - § 6.9 • HEARSAY AND THE CONFRONTATION CLAUSE

• Jurisdiction: Colorado

§ 6.9 • HEARSAY AND THE CONFRONTATION CLAUSE

§ 6.9.1—Introduction

Even though a particular hearsay statement may be admissible under the rules of evidence or by statute, that statement may still be barred if it runs afoul of the confrontation clauses of the U.S. and Colorado Constitutions. The U.S. Supreme Court decision in Crawford v. Washington, 541 U.S. 36 (2004), is the seminal case. Crawford holds that "testimonial evidence" is not admissible against a criminal defendant unless the declarant testifies or unless the defendant had an opportunity to cross-examine the declarant at the time of the making of the prior statement. The issue under Crawford is whether a particular statement is "testimonial."

If a statement is not "testimonial" under Crawford, the pre-existing Confrontation Clause analysis, exemplified by Ohio v. Roberts, 448 U.S. 56 (1980), should still be used to determine whether the introduction of a statement violates the defendant's right to confront and cross-examine witnesses.

§ 6.9.2—Crawford and the Confrontation Clause

The defendant in Crawford, 541 U.S. 36, was convicted of murder after a trial in which certain recorded statements of his wife, undercutting his claim of self-defense, were introduced. His wife was barred from testifying by the Washington marital privilege. The trial court admitted the hearsay statements on the ground that it had the "particularized guarantees of trustworthiness" required by Ohio v. Roberts, 448 U.S. 56 (1980).

A majority of the U.S. Supreme Court acknowledged that such particularized guarantees of trustworthiness might well exist, but held, after an examination of the history of the Sixth Amendment and the practices in effect at the time the Bill of Rights was enacted, that the Confrontation Clause of the Sixth Amendment required a particular guarantee of trustworthiness: an opportunity by the defendant to cross-examine the declarant at the time the prior statement was made. "Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." Crawford, 541 U.S. at 68.

Where "non-testimonial" statements are involved, the Crawford court left to the states "flexibility in their development of hearsay law." Id.

§ 6.9.3—The Meaning of "Testimonial" Statements

Since Crawford, courts around the country have scrambled to interpret the phrase "testimonial statements." The majority in Crawford did not attempt a comprehensive definition:

We leave for another day any effort to spell out a comprehensive definition of "testimonial." Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.

Crawford, 541 U.S. at 68.

The Supreme Court did provide some guidance. The Court noted that a chief evil the Confrontation Clause addressed was the use of pre-trial interrogations, which were conducted without the presence of the defendant and subsequently admitted against the defendant at trial. Considering this goal in the context of modern prosecutions, the Court noted that statements obtained through police interrogations would clearly fall within the rule. Other formulations of this protected class of testimonial statements exist: "ex parte in-court testimony or its functional equivalent; . . . extrajudicial statements . . . contained in formalized testimonial materials; . . . 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." Id. at 51-52 (citations omitted).

Since Crawford, the U.S. Supreme Court has issued several opinions addressing issues left unresolved in Crawford, and the Colorado appellate courts have done the same. The first U.S. Supreme Court case of note is Davis v. Washington, 547 U.S. 813 (2006). In Davis, the Court consolidated two domestic violence cases, each of which involved the prosecution's introducing hearsay statements of the alleged victim.

Without attempting to produce an exhaustive classification of all conceivable statements — or even all conceivable statements in response to police interrogation — as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: 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.

Id. at 822.

In the first fact situation addressed in Davis, the statements were made to a 911 operator. The Court noted that 911 calls are ordinarily designed primarily to describe current circumstances requiring police assistance. The declarant was speaking of events as they were actually happening and was facing an ongoing emergency. The statements were elicited to enable the police to resolve the present emergency rather than simply to learn what had happened in the past. The declarant's frantic answers were provided over the phone, in an environment that was not tranquil or even safe. Thus, the circumstances of her interrogation objectively indicated to the Court that its primary purpose was to enable police assistance to meet an ongoing emergency. These statements were deemed "non-testimonial" and should be analyzed under traditional hearsay law. See § 6.9.4.

The second fact situation addressed in Davis involved statements by the alleged victim of domestic violence made to the police who responded to the scene after a 911 call. The Court noted that this declarant made the statements as part of an investigation into possibly criminal past conduct. There was no emergency in progress. The primary, if not sole, purpose of the investigation was to investigate a possible crime. The declarant was separated from the defendant, the statements recounted how potentially criminal past events began and progressed, and the interrogation took place some time after the events were over. These statements were deemed "testimonial" under Crawford, and their admission was error.

The Colorado Supreme Court addressed the Crawford issue in People v. Vigil, 127 P.3d 916 (Colo. 2006). In Vigil, the court addressed three different statements by the child victim of a sexual assault. The court held that a videotaped interview conducted by police with the alleged child victim constituted a "testimonial statement" and should have been excluded. The court also held that the child's statements to his father and a family friend immediately after the incident did not constitute testimonial hearsay. Finally, the court held that the child's statements to an examining physician did not constitute testimonial hearsay, either, although the court acknowledged that the result might be different if it could be shown that the examining physician's questioning was really the "functional equivalent" of police interrogation. Id. at 922. The latter two statements, deemed "non-testimonial," should be analyzed under traditional hearsay law. See § 6.9.4.

A second Colorado Supreme Court opinion is Compan v. People, 121 P.3d 876 (Colo. 2005). Compan held that statements made by the victim to a friend and to a doctor at the hospital that the defendant hit, kicked, pinched, and pushed her were not testimonial for purposes of Crawford. The court found that "the victim's statements were not made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Rather, the victim was speaking informally to her friend." Id. at 881. Therefore, these statements were not testimonial and should be analyzed under traditional hearsay law. See § 6.9.4.

The court of appeals has addressed the issue of what constitutes...