Hearsay and the Confrontation Clause
Jurisdiction | Maryland |
V. Hearsay and the Confrontation Clause
A. Background and evolution
Hearsay statements are out-of-court statements offered by the declarant to prove the truth of the matter asserted.
1. Roberts v. Ohio era (1980 to 2004)
From Roberts v. Ohio, 448 U.S. 56 (1980), until Crawford, the interrelationship between the Confrontation Clause and hearsay evidence was controlled by Roberts. Under Roberts, all hearsay statements—both non-testimonial hearsay statements and testimonial hearsay statements—were treated alike. If a hearsay statement came within one of the "firmly rooted" exceptions to the rule against hearsay, the statement was presumed to have adequate indicia of reliability and, thus, satisfied the Confrontation Clause and was admissible.
On the other hand, if a hearsay statement was not within the firmly rooted exceptions to rule against hearsay, it was presumed unreliable, and its admission violated the Confrontation Clause, unless there were "particularized guarantees of trustworthiness" in the manner in which the statement was created. Corroboration was irrelevant to this analysis. Idaho v. Wright, 497 U.S. 805 (1990). Thus, hearsay statements did not violate the Confrontation Clause if the statements complied with Roberts and Wright.
2. Crawford v. Washington era (2004-2021)
In Crawford, 541 U.S. 36, the Supreme Court held a declarant's out-of-court testimonial hearsay statements (not non-testimonial hearsay statements), offered for the truth of the matter asserted, violate the Confrontation Clause. Out-of-court, testimonial hearsay includes statements made in prior court proceedings and statements made outside of court proceedings. In so holding, the Court overruled Roberts as to testimonial hearsay, but reaffirmed Roberts and Wright as to non-testimonial hearsay statements.
Crawford rejected "adequate indicia of reliability," noting that it does not matter that the trial court believes that the statement is reliable. What matters is what the fact finder believes, following cross-examination. The "unpardonable vice" of Roberts was permitting the jury to hear evidence that was untested by the adversarial process of cross-examination, based solely on a judicial determination of reliability. Crawford stated that trial judges cannot always be trusted to safeguard the defendant's rights. Crawford does not apply to (a) non-testimonial hearsay; or (b) testimonial non-hearsay, i.e., statements not offered to prove the truth of matter contained in the statement. Tennessee v. Street, 471 U.S. 409 (1985).
In Derr v. State I, 422 Md. 211 (2011), vac. and remanded, 567 U.S. 948 (2012), the Court of Appeals provided a useful summary of the Crawford decision, as follows:
In Crawford v. Washington, the Supreme Court of the United States set forth a framework for evaluating violations of the Confrontation Clause of the Sixth Amendment. The Court stated that the Confrontation Clause "applies to 'witnesses' against the [defendant]—in other words, those who 'bear testimony.'" Quoting the American Dictionary of the English Language from 1828, the Court defined testimony as a "solemn declaration or affirmation made for the purpose of establishing or proving some fact." The Court went on to state that the purpose of the Confrontation Clause was to protect against out-of-court statements, specifically formal statements to government officers, being admitted without an opportunity to confront the declarant. Crawford concluded that testimonial statements are subject to the protections of the Confrontation Clause and cannot be admitted without live testimony, unless the witness is unavailable and the Defendant had a prior opportunity to cross-examine the witness.
Id. at 225-26 (internal citations omitted).
B. Testimonial hearsay does not satisfy the Confrontation Clause and requires live testimony subject to cross-examination
In Crawford, the Court held that testimonial hearsay statements are admissible only if the declarant testifies live, subject to cross-examination. The Court stated:
Various formulations of this core class of "testimonial" statements exist: ex-parte in-court testimony or its functional equivalent—that is material, such as affidavits, custodial examinations, prior testimony that the Defendant was unable to cross-examine, or similar pre-trial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness to reasonably believe that the statement would be available for use at a later trial. These formulations all share a common nucleus and then define the Clause's coverage at various levels of abstraction around it.
541 U.S. at 51-52 (internal citations and quotations omitted). In Derr, the Court of Appeals held:
When reviewing a case under the Confrontation Clause, the following principle must be followed: a testimonial statement may not be introduced into evidence, through admission or testimony, without the in-court testimony of the declarant. A court must first identify what statements are being offered as evidence in a criminal trial. Then, a court must determine whether the statements are testimonial in nature. Unless the declarant is unavailable and the Defendant had a prior opportunity for cross-examination, when an out-of-court statement is testimonial in nature, it may not be introduced against the [defendant] at trial, and its admission violates the Confrontation Clause.
422 Md. at 236 (internal citations and quotations omitted). The purpose of the Confrontation Clause is reliability, which must be determined by testing in the crucible of cross-examination. Id. at 262. Testimonial hearsay statements include:
1. Statements are testimonial if made under oath or affirmation
Crawford applies to hearsay statements made under oath or affirmation because such statements are testimonial. The Court defined what constitutes a testimonial statement:
Various formulations of this core class of "testimonial" statements exist: ex-parte in-court testimony or its functional equivalent—that is material, such as affidavits, custodial examinations, prior testimony that the Defendant was unable to cross-examine, or similar pre-trial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness to reasonably believe that the statement would be available for use at a later trial. These formulations all share a common nucleus and then define the Clause's coverage at various levels of abstraction around it.
541 U.S. at 51-52 (internal citations and quotations omitted).
2. Statements made to government officials for use in a subsequent trial are testimonial, even though not under oath
Crawford applies to hearsay statements made to government officials, whether or not under oath or affirmation, when such statements are testimonial. A statement is testimonial if it was made to a government official in anticipation of, or for purpose of, a criminal case, under circumstances that would cause an objective person to reasonably believe that the statement would be available for use in a subsequent trial. In Crawford, the testimonial hearsay statement was a statement made to the police during interrogation. The Court stated that the term "testimonial" is used in its colloquial sense, and not in its legal sense, but the Court failed to provide a comprehensive definition of "testimonial."
3. Crawford inapplicable to non-hearsay
Crawford does not apply to out-of-court statements, even when they are testimonial, if the statements are not hearsay, meaning that the statement is not offered to prove the truth of the matter contained in the statement. Id. at 59 n.9 (citing Street, 471 U.S. at 414). In Williams v. Illinois, 567 U.S. 50 (2012), the Supreme Court stated: "Crawford, while departing from prior Confrontation Clause precedent in other respects, reaffirmed the proposition that the [Confrontation] Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." Id. at 2224 (internal quotations and citations omitted).
4. Crawford inapplicable to non-testimonial hearsay statements
Statements made in furtherance of a conspiracy are non-testimonial
Hearsay statements of non-testifying co-conspirators may be admitted against the defendant because statements of one co-conspirator are imputed to all conspirators. Crawford, 541 U.S. at 55; see United States v. Inadi, 475 U.S. 387, 394-400 (1986).
Statements made when the primary purpose of police-citizen interaction is an ongoing emergency are not testimonial
Statements made in response to questioning regarding an "ongoing emergency" are non-testimonial. In Davis v. Washington, 547 U.S. 813 (2006), the Supreme Court stated: "Statements are non-testimonial 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." Id. at 822. Brock v. State, 203 Md. App. 245, 263-64 (2012) (statements of witness murdered before trial were non-testimonial because statements were made with the primary purpose of meeting an ongoing emergency).
5. Dying declarations may be admissible whether or not they are testimonial
In Crawford, the Supreme Court stated that dying declarations may be admissible even if they are testimonial: "Although many dying declarations may not be testimonial, there is authority for admitting even those that clearly are. We need not decide in this case whether the Sixth Amendment incorporates any exception for...
To continue reading
Request your trial