After Crawford: using the confrontation clause in Massachusetts courts.

• Author: Lowy, David A.
• Position: Crawford v. Washington 541 U.S. 36 (2004

TABLE OF CONTENTS I. INTRODUCTION II. APPLICABILITY OF THE CLAUSE III. CONFRONTATION CLAUSE JURISPRUDENCE: CRAWFORD AND BEYOND A. Crawford B. Gonsalves C. Davis IV. ANALYSIS FOR "TESTIMONIAL" STATEMENTS UNDER US/MA LAW A. Testimonial Per Se B. Testimonial in Fact C. Forfeiture by Wrongdoing V. CONCLUSION I. INTRODUCTION *

The sea change in interpretation of the Confrontation Clause that followed the United States Supreme Court's decision in Crawford v. Washington (2) has been disconcerting to litigator and jurist alike. The Confrontation Clause, once a fleeting thought in constitutional jurisprudence, now stands as an obstacle to admissibility separate from whether or not evidence satisfies a hearsay exception. The source of the confusion is twofold: (1) a failure to recognize precisely that the Confrontation Clause analysis is "distinct but symbiotic" to the hearsay analysis; (3) and (2) the failure of appellate courts to provide a broadly applicable definition as to when hearsay violates the Confrontation Clause. This article seeks to demystify the Confrontation Clause, with a specific focus on Massachusetts, and provide suggestions for analyzing Confrontation Clause evidentiary issues.

In Crawford, the United States Supreme Court held that "testimonial hearsay" is inadmissible unless the out of court declarant is both unavailable as a matter of law and was previously subject to crossexamination. (4) The Court chose, however, not to provide a functional definition of "testimonial." (5) Other courts did only marginally better. In Commonwealth v. Gonsalves, (6) the Massachusetts Supreme Judicial Court ("SJC") provided a clear definition of testimonial in its own interpretation of the Sixth Amendment. (7) Following the Gonsalves decision, the United States Supreme Court revisited the definition of testimonial in Davis v. Washington and Hammon v. Indiana. (8) While the Court's most recent holdings leave many questions and provide few answers, the holdings narrow down several areas of uncertainty. These cases will be discussed throughout this article.

2. APPLICABILITY OF THE CLAUSE

   The Confrontation Clause (9) protects the right to cross-examine hearsay declarants in certain defined circumstances. (10) The role of cross-examination is to both seek the truth and to promote confidence in convictions as well as justice overall. This idea has a long history in Anglo-American jurisprudence.

   Sir Walter Raleigh, demanding the justice he would never see, promoted confidence in the maintenance of the social compact through ordered liberty as manifested in courts of law when he proclaimed:

   If you proceed to condemn me here by bare inferences, without an oath, without a subscription, without witnesses, upon a paper accusation, you try me by the Spanish Inquisition. If my accuser were dead or abroad, it were something but he liveth ... Why, then, I beseech you, my Lords, let Cobham be sent for; let him be charged upon his soul; upon his allegiance to the King, and if he will then maintain his accusation to my face, I will confess myself guilty. (11) Raleigh's plea for confrontation occurred during his famous trial for treason, in which he was subsequently convicted and sentenced to death. Raleigh had no opportunity to cross-examine his accuser.

   Professor Wigmore referred to cross-examination as the "greatest legal engine ever invented for the discovery of truth." (12) Without cross-examination, under oath, under the gaze of a jury observing the witness's demeanor, truth may prove elusive. Thus, the danger of hearsay is that it cannot be adequately tested by cross-examination. The infirmities of hearsay are well-known and often discussed in the law school classroom. The trial lawyer and judge would be well served to have these infirmities on the tip of their tongue. The infirmities of an out-of-court declarant's statement, which cannot be tested at the time they are made through cross-examination are (1) misperception; (2) faulty memory; (3) misstatement or "faulty narration"; and (4) distortion or deception. (13) The Confrontation Clause stands as the constitutional limit by which our system of justice challenges these infirmities.

   To the extent these infirmities or frailties are mitigated by the nature of certain hearsay statements and to some extent, in conjunction with the loss of highly probative evidence, hearsay exceptions developed at common law. (14) Certain familiar exceptions to the rule come to mind, such as dying declarations, spontaneous utterances, business records, present sense impressions, then-existing physical condition, and statements made to medical personnel. The Sixth Amendment may serve as a constitutional limit when these hearsay exceptions are advanced to admit evidence against a criminal defendant. With these thoughts in mind, the following circumstances pose no Confrontation Clause impediments to admissibility. A firm understanding of the Clause's inapplicability in these circumstances will instill confidence and hope in the Massachusetts litigator as he attempts to understand this difficult topic. Accordingly, the Confrontation Clause does not apply:

   1. in any civil case, including sexually dangerous person proceedings; (15)

   2. anytime the out of court statement is being offered for a purpose other than its truth; (16)

   3. when offered by the defendant;

   4. when the declarant is available for cross-examination at trial; (17)

   5. if the out-of-court declarant is unavailable as a matter of law but was previously subject to cross-examination by the defendant; (18) and

   6. when the hearsay is not "testimonial" (whatever that means). (19)

   Numbers one through four are easy to understand and require little clarification. Number five requires a definition of "unavailability" and "cross-examination"--easy enough (20)--and also an understanding of the doctrinal goal of the Confrontation Clause as referenced briefly above. If the declarant is unavailable and has been subject to prior cross-examination, the Confrontation Clause is satisfied and the hearsay statement is admissible. In order to understand number six, however, a definition clarifying the testimonial/nontestimonial distinction is required. Much of the remainder of this article will be dedicated to understanding this distinction. Let us begin then by discussing the Confrontation Clause under Ohio v. Roberts (21) and the Crawford tidal wave that struck courtrooms across the land, wreaking havoc and confusion upon lawyers and judges alike while also fostering constitutional fairness.

3. CONFRONTATION CLAUSE JURISPRUDENCE: CRAWFORD AND BEYOND

   1. Crawford

      During the period between Roberts and Crawford, in almost all circumstances, if the government satisfied a hearsay exception, it satisfied the Confrontation Clause. (22) In Roberts, the Court held that "when a hearsay declarant is not available for cross examination at trial ... the statement is admissible only if it bears adequate 'indicia of reliability' ... [or] falls within a firmly rooted hearsay exception." (23) For the Court, this test was sufficient to satisfy the Confrontation Clause because the purpose of the clause was the same as that of the rules of hearsay: "to augment accuracy in the fact finding process by ensuring the defendant an effective means to test adverse evidence." (24) The Roberts test, however, proved ineffectual in protecting confrontation rights and, as a result, the Confrontation Clause became "increasingly anemic" under its guise. (25)

      A litany of academics and judges, no doubt inspired by Sir Walter Raleigh, denounced the state of the law. (26) Professor Margaret Berger explained that "the [Court's] insistence [in Roberts] that the sole function of the Confrontation Clause is to promote more accurate fact-finding ignores the historical background against which the Clause was drafted and overlooks the context in which it is placed." (27) Professor Berger insisted that the purpose of the Clause was to monitor and deter governmental abuse and should be refocused according to that purpose. (28) Justice Thomas echoed this sentiment by stating that the Roberts test was "inconsistent with the text and history of the Clause." (29)

      Justice Scalia illuminated this point when he said: "The purpose of enshrining the [Confrontation Clause] in the Constitution was to assure that none of the many policy interests from time to time pursued by statutory law could overcome a defendant's right to face his or her accusers in court." (30) Yet, the post-Roberts Court continued to hold that evidence law controlled the Confrontation Clause. (31) In Roberts and its progeny, the Court "unnecessarily ... complicated and confused the relationship between the constitutional right of confrontation and the hearsay rules of evidence." (32)

      Against this backdrop, the Court attempted to disentangle the confrontation right from the rule against hearsay and re-infuse the Confrontation Clause with its original intent in Crawford v. Washington. (33) The facts of the case were as follows: The defendant Crawford stabbed to death a man who had allegedly tried to rape his wife, Sylvia. (34) At trial, the prosecution played a statement recorded at the police station in which Sylvia described the stabbing. (35) Sylvia was unavailable to testify at trial under the Washington state marital privilege and Michael Crawford had no prior occasion to cross-examine her. (36) Sylvia's statements were admitted over defense objections and Crawford was subsequently convicted of assault. (37) The question on review was whether Sylvia's statements were admitted in violation of Crawford's right to confrontation. (38)

      The United States Supreme Court, in reviewing the Washington State Supreme Court's affirmation of Crawford's conviction, began its analysis by explaining that the purpose of the historical right to confrontation was to prevent the civil-law mode of criminal procedure abused by justices of the peace and other...