Crumbling patchwork: Massachusetts's efforts to fill the gaps left by Crawford are now redundant.

• Author: Fiorentino, Christopher J.
• Position: Confrontation clause jurisprudence

1. INTRODUCTION

   In the Confrontation Clause, the United States Constitution gives criminal defendants the right to confront their accusers. (1) That right has ancient roots preceding the Constitution. (2) However, nearly as long as the right to confront one's accusers has existed, exceptions have been recognized. (3) Until recently, the Supreme Court interpreted the Confrontation Clause to include all the exceptions afforded to the hearsay doctrine, as well as evidence that bore "particularized guarantees of trustworthiness" that indicated the statements were "reliable." (4) Eventually, scholars, judges, and commentators criticized this approach, arguing that judges implementing the reliability standard had developed a confusing body of caselaw that made predicting the admissibility of out-of-court statements an unreliable process. (5) Seeking to remedy this perceived unfairness, the Supreme Court rendered Crawford v. Washington. (6) In that decision, the Court held that under the Confrontation Clause, out-of-court statements elicited by police interrogation were testimonial, and therefore inadmissible, unless the defendant had the opportunity to cross examine the declarant. (7)

   Crawford sent ripples through the legal community in three ways: (1) it revealed that the protections provided by the Confrontation Clause are separate from stare decisis hearsay; (2) it emphasized the need to distinguish testimonial and non-testimonial out-of-court statements, but failed to provide a clear definition of "testimonial statements"; and (3) it suggested all statements made in the course of law enforcement interrogations are testimonial, but lacked a clear description of what constitutes an interrogation. (8) The Massachusetts Supreme Judicial Court (SJC) addressed these issues in Commonwealth v. Gonsalves, (9) clarifying the definitions of "testimonial" and "interrogation," as well as creating a two-part procedure courts could use to determine whether a statement is testimonial per se or testimonial in fact. (10)

   Despite its initial value to the Massachusetts courts, Gonsalves has become less applicable in the wake of the Supreme Court decisions in Davis v. Washington (11) and Michigan v. Bryant, (12) as these decisions have caused the SJC to adjust its analytical method of evaluating the admissibility of testimonial evidence. (13) The Supreme Court, however, has not addressed all the questions left open by Crawford, and Gonsalves remains applicable in Massachusetts under some circumstances. 14 Nevertheless, to the extent Gonsalves can be interpreted to create procedural steps or substantive law, it should be abandoned by all Massachusetts courts. (15)

2. A DAM AGAINST HEARSAY: THE DEVELOPMENT OF

   CONFRONTATION CLAUSE JURISPRUDENCE

   Despite its ancient roots, the right to confront one's accusers in the American criminal justice system has evolved along with Western civilization. (16) The Framers, who were familiar with Sir Walter Raleigh's infamous trial for treason, were influenced heavily by British common law and saw fit to enshrine the right in the Sixth Amendment of the U.S. Constitution. (17) For as long as the right has been recognized, courts have made exceptions by allowing the admission of statements made by absent persons into evidence. (18) For a generation, the admissibility of these words was controlled by hearsay common law and by the judiciary's notions of the evidentiary reliability. (19) If the declarant was unavailable, their statements remained admissible if the offering party showed "particularized guarantees of trustworthiness." (20)

   1. The Levy Breaks: Crawford v. Washington

      As a result of this open-ended policy, courts and academics worried the ever-growing number of hearsay exceptions would render the Confrontation Clause moot. (21) Uneasy with this development, the Supreme Court recognized the procedural protections guaranteed by the Confrontation Clause in Crawford v. Washington (22) In Crawford, the prosecution sought to admit voice-recorded inculpatory statements made by the defendant's wife to police while they were investigating the stabbing of a man who allegedly attempted to rape her. (23) Citing spousal privilege, she refused to testify at trial. (24) Over the defendant's objection, the prosecution persuaded the trial court to allow the recording to be admitted, arguing it was sufficiently trustworthy. (25) The defendant's appeal went all the way to the Supreme Court, who unanimously held that the statement should have been excluded because its admission violated the defendant's Sixth Amendment confrontation right. (26)

      Writing for the Court in Crawford, Justice Scalia declared that judicial determination of a statement's reliability absent the cross-examination of the declarant fails to satisfy the Confrontation Clause. (27) Testimonial statements must be subject to cross-examination not only because judicial assessment of reliability is unpredictable, but also because courts might mistakenly admit "core testimonial statements that the Confrontation Clause plainly meant to exclude." (28) To restore the protections against false testimony offered by the procedure, the Court ruled a defendant must have the opportunity to cross-examine witnesses regarding their out-of-court testimonial statements in order for them to be admissible. (29)

      Leaving room for the admission of some out-of-court statements made by unavailable declarants, Justice Scalia distinguished testimonial statements from non-testimonial statements in the Crawford opinion. (30) Although the Court offered a number of formulations, it left the "comprehensive definition of 'testimonial'" to future decisions, ruling that the statements at bar--statements taken by police officers in the course of interrogation--fit the definition under any standard. (31) Additionally, Justice Scalia left the definition of "interrogation" open, suggesting only that he intended the term "in its colloquial, rather than any technical legal, sense." (32) In his concurrence, Justice Rehnquist criticized the testimonial/nontestimonial distinction, arguing that it not only lacked historical basis, but also that leaving these definitions unresolved left lower courts and prosecutors "in the dark." (33)

   2. The SJC Stacks Sandbags: Commonwealth v. Gonsalves

      As Justice Rehnquist predicted in his concurring opinion in Crawford, the SJC quickly found itself stumbling in the dark with Commonwealth v. Gonsalves: a case Crawford controlled but could not be resolved without further interpretation of what constituted a "testimonial" statement or an "interrogation." (34) In its decision, the SJC noted that it had insufficient guidance from the Supreme Court to determine whether statements made to persons other than law enforcement officers or statements spontaneously offered should be considered testimonial. (35) In its attempt to refine the definition of "testimonial," the SJC drew another distinction, parsing a line between statements that are testimonial per se and those that are testimonial in fact. (36) Statements are testimonial per se when they are made in response to police interrogations. (37) Alternatively, statements are testimonial in fact when they are made under circumstances that the "declarant would reasonably believe that his or her statement might be used at trial." (38) Neither formulation relies upon "the declarant's knowledge of trial procedure or the formality of the statement," but instead "focuses on the declarant's intent by evaluating the specific circumstances in which the out-of-court statement is made." (39) From this viewpoint, "all statements the declarant knew or should have known might be used to investigate or prosecute an accused" are testimonial. (40) No other state has explicitly adopted the testimonial-per-se/testimonial-in-fact distinction as part of their Crawford analysis.

      The SJC also struggled to ascertain what Justice Scalia described as the "colloquial" understanding of interrogation, settling upon "all law enforcement questioning related to the investigation or prosecution of a crime." (41) Under this broad definition, a law enforcement officer's preliminary fact-gathering to determine if a crime has taken place is an interrogation, and the statements those interrogations elicit are testimonial. (42) The SJC refused to limit the scope of testimony to "formal, solemnized, recorded accounts," arguing law enforcement officers would attempt to circumvent the Confrontation Clause by taking statements in the most informal circumstances possible. (43)

      Because not all statements made to police are related to the investigation or prosecution of a crime, the SJC created an exception to its broad definition of "interrogation." (44) When police ask questions in the course of ongoing emergencies--to secure volatile scenes or provide medical care--those questions do not qualify as interrogations, and so, under Gonsalves, they were not definitively testimonial per se; nevertheless, courts could still categorize these statements as testimonial in fact. (45)

      The Gonsalves Court also had to address another scenario unlike the fact pattern addressed by the Supreme Court in Crawford: the circumstances under which statements from one private citizen to another might be considered testimonial. (46) While those statements could never qualify as testimonial per se, the SJC ruled they were nevertheless subject to testimonial-in-fact analysis. (47) While the victim's statements to her mother in Gonsalves were nontestimonial, the court admitted there could be circumstances where a reasonable declarant would expect his statements to be used against the accused at trial, even though the listener was not a member of the law enforcement community. (48)

   3. The Supreme Court Stems the Tide: Davis v. Washington

      The open definitions of "testimonial" and "interrogation" led to a number of discordant interpretations, and the Supreme Court soon took...