Crawford's impact on Florida criminal law: what's in and what's out in the world of hearsay.

• Author: Matthewman, William D.

In 2004, the U.S. Supreme Court issued a groundbreaking opinion, Crawford v. Washington, 541 U.S. 36 (2004), which is destined to have a far-reaching impact on Florida criminal law. This article will specifically address Crawford's impact on the admissibility of certain types of hearsay statements in criminal cases in Florida, and what we may expect in the future. (1)

In Crawford, the Supreme Court held that a testimonial hearsay statement is inadmissible at a criminal trial unless the declarant is shown to be unavailable and the party against whom the statement is admitted had an opportunity for cross-examination. Crawford abrogated the long-standing rule of Ohio v. Roberts, 448 U.S. 56 (1980), which had previously permitted courts to admit testimonial hearsay if those statements possessed adequate "indicia of reliability." Roberts conditioned admissibility of hearsay statements on whether the statement fell under a "firmly rooted hearsay exception" or bore "particularized guarantees of trust worthiness." In overruling Roberts, the U.S. Supreme Court carefully analyzed the Sixth Amendment's confrontation clause and determined that "testimonial hearsay" could only be admitted: a) upon a demonstration that the declarant is unavailable, and b) that the defendant had a prior opportunity for cross-examination.

The Supreme Court, in dispatching to obscurity its prior "indicia of reliability" requirement, noted that the confrontation clause does not require that evidence be reliable "but that reliability be assessed in a particular manner." Thus, Crawford has changed the admissibility of certain categories of hearsay statements in Florida criminal cases.

Police-controlled Taped Phone Calls

What happens when the state seeks to introduce an audiotape of a police-controlled phone conversation between a nontestifying co-defendant and the defendant? A survey of post-Crawford Florida cases reflects the likelihood that police-controlled phone calls are inadmissible in a criminal trial unless the declarant testifies at trial and is subject to cross-examination. In State v. Hernandez, 875 So. 2d 1271 (Fla. 3d DCA 2004), rev. granted, 894 So. 2d 972, rev. dism'd., 911 So. 2d 95 (Fla. 2005), the court held that admission of a nontestifying co-defendant's out-of-court statement to the defendant during a police-controlled, audiotaped phone conversation would, in light of Crawford, violate the Sixth Amendment confrontation clause because the defendant did not have an opportunity to cross-examine the co-defendant. In Hernandez, after the co-defendant's arrest, the police persuaded him to engage in a controlled, audiotaped phone call to the defendant in an effort to obtain admissions from the defendant in the hopes that the he would incriminate himself. The Third District Court of Appeal had no difficulty finding such statements to be "testimonial." The court also ruled that the statements of the co-defendant were inadmissible, even if the statements could have been classified as "adoptive admissions." The Hernandez court found that it was not bound by the Florida Supreme Court's prior and very recent decision in Globe v. State, 877 So. 2d 663 (Fla. 2004), which held that admission of a co-defendant's statements as adoptive admissions did not violate the confrontation clause, since Globe relied on Roberts which was overruled by Crawford. Accordingly, in cases of police-controlled telephone conversations, such conversations are likely inadmissible at trial unless the declarant testifies and is subject to cross-examination.

Excited Utterances

Prosecutors commonly rely upon the "excited utterance" hearsay exception which permits the admission of damaging hearsay statements of a declarant against a defendant relating to a startling event when the statement was made while the declarant was under the stress of the event. (2) However, in light of Crawford, use of the excited utterance hearsay exception is now much more difficult for prosecutors. Whether an out-of-court statement asserted to be an "excited utterance" is admissible in a Florida criminal trial is a question of both state evidence law and constitutional confrontation law. (3) The proffered excited utterance must first be admissible under the excited utterance exception in F.S. [section] 90.803(2). If the proffered statement is admissible as an excited utterance, that does not end the analysis. A determination that an out-of-court statement is an "excited utterance" under [section] 90.803(2) merely means that the statement will not be excluded as hearsay. (4) It may still be inadmissible for other reasons, however, such as a Sixth Amendment confrontation clause violation. Accordingly, before an excited utterance may be admissible in a state criminal trial, it must meet the hearsay exception requirements of [section] 90.803(2), and it must meet the confrontation clause requirements of Crawford. In Lopez v. State. 888 So. 2d 693 (Fla. 1st DCA 1994), the First District Court of Appeal reversed a defendant's conviction for possession of a firearm by a convicted felon because the admitted excited utterance was testimonial and violative of the confrontation clause despite the defendant's prior taking of a discovery deposition of the victim.5

In Howard v. State, 902 So. 2d 878 (Fla. 1st DCA 2005), the defendant was convicted of kidnapping to inflict bodily harm or to terrorize, and felony battery. The trial court admitted the "excited utterances" to a deputy sheriff made by a victim who was unavailable to testify at trial. The First District found such excited utterances to be "testimonial" and violative of the defendant's confrontation rights. The defendant's conviction was reversed.

In Manuel v. State, 30 Fla. L. Weekly D1248 (Fla. 1st DCA 2005), the defendant was convicted of aggravated battery based in part on the victim's "excited utterance" to a police officer as to how the victim was injured. The First District held that the victim's statement was testimonial because it was made in response...