Hearsay after Crawford: a practitioner's guide.

AuthorCooke, Marcia G.

    The Sixth Amendment to the U.S. Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." (2)

    Although it may appear simple, concise and direct, the language of the Sixth Amendment has been the subject of much discussion. (3) The Confrontation Clause has been inevitably comingled with the hearsay rules, (4) and determining when an out-of-court statement violates the rights of criminal defendants has been no easy task. (5) For many years, it was uncontested, as established in Ohio v. Roberts, that to avoid violating a criminal defendant's Sixth Amendment rights, the Confrontation Clause required a prosecutor who sought to introduce hearsay evidence to establish that the hearsay declarant was unavailable and that the out-of-court statement bore "adequate indicia of reliability." (6) Showing the statement fell under one of numerous hearsay exceptions or bore particularized guarantees of trustworthiness established the necessary level of reliability. (7) However, in 2004, the Supreme Court departed from the rule in Roberts. (8) In Crawford v. Washington, the Supreme Court held that compliance with the Sixth Amendment's Confrontation Clause requires more than an "adequate indicia of reliability." (9)

    Pursuant to Crawford, out-of court statements that are testimonial are barred by the Confrontation Clause, unless the declarants are unavailable and the defendant had the prior opportunity to cross-examine the witnesses. (10) Contrary to Roberts, whether a court deems such statements reliable is irrelevant. (11) Despite this direct ruling, the Crawford holding failed to provide a clear answer to the correlation between out-of-court statements and the rights of criminal defendants. (12) Uncertainty has reigned in courts' interpretation of the meaning of "testimonial." (13) A study of the post-Crawford jurisprudence is therefore a must for the practitioner to be able to understand the current connection between hearsay and the Confrontation Clause. This article will focus on the meaning the courts have given to the word "testimonial," which has proven to be a complex and determinative factor when operating under the Confrontation Clause. It will also attempt to create a guide for practitioners with the ambitious goal of facilitating the sometimes-arduous task of determining whether a particular piece of evidence is likely to be deemed testimonial and, consequentially, subject to the Confrontation Clause.



      In 2004, and after more than twenty years of established Confrontation Clause jurisprudence, the Supreme Court revisited the Sixth Amendment in Crawford v. Washington. (14) In that case, the State charged the defendant with assault and attempted murder. (15) Because the marital privilege prohibited the wife's in-court testimony, the prosecution, as part of its case in chief, introduced into evidence a recorded statement the defendant's wife gave to police after the incident and which cast doubt on her husband's claim of self defense. (16) The defendant was convicted, and he appealed. (17)

      The Court found the introduction of the wife's out-of-court statement violated the Confrontation Clause and held:

      Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law--as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. (18) In reaching this decision, the Court departed from Roberts and noted that the "adequate indicia of reliability" principle that for many years guided the courts' decisions is no longer good law. (19) Departing from Roberts also meant that a dividing line between hearsay and the Sixth Amendment's Confrontation Clause was now in place. (20) Roberts employed a reliability analysis specifically focused on whether the evidence fell under one of the exceptions to the hearsay rule. (21) To the contrary, Crawford separated the constitutional standard from the hearsay rule, requiring that any out-of-court testimonial statement offered by the prosecution be subjected to cross-examination. (22)

      Therefore, in criminal cases, to determine whether the admissibility of a statement will proceed under the hearsay rules or the Confrontation Clause, a prosecutor must solve the threshold issue of whether a particular out-of-court statement is testimonial. (23) If so, cross-examination becomes a must, and unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the declarant, the statement is inadmissible. (24) Unlike in Roberts, whether the statement is reliable or not--that is, whether the statement falls under one of the hearsay exceptions--is irrelevant. (25) Although the Crawford Court did not expressly adopt a definition of "testimonial," it shed light on the issue, describing testimonial statements as "solemn declarations or affirmations made for the purpose of establishing or proving some fact." (26) The Court gave several examples, including (1) ex-parte in court testimony or materials such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross examine or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; (2) extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony or confessions; (3) 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; and (4) statements taken by police officers in the course of interrogations. (27)

      In the consolidated cases of Davis v. Washington and Hammon v. Indiana, the Court further explained what a testimonial statement entails. (28) More specifically, the Court had to determine the circumstances under which statements made to law enforcement personnel are testimonial. (29) In so doing, the Court established a primary-purpose test. (30)

      In Davis, the state charged the defendant with a felony violation of a domestic no-contact order. (31) During trial, the prosecution sought to introduce a series of statements the defendant's wife made during the course of a 911 call that took place as the defendant was allegedly attacking her. (32) These statements not only identified the defendant as the victim's assailant but also described the way in which he was attacking her. (33) To the contrary, in Hammon, the statements the prosecutor sought to introduce were not made during the course of a 911 call but rather during a police interrogation that took place after the incident was over, (34) but while the victim was still "somewhat frightened." (35)

      In determining whether the statements in Hammon and Davis were testimonial and, thus, in violation of the defendants' Sixth Amendment rights, the court focused on the precise moment the call took place. (36) The Court, carefully noting its holding applies only to interrogations, (37) found that "[s]tatements are nontestimonial when made in the course of police interrogations under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency." (38) Therefore, because in Davis the victim made the statements as the battery was ongoing, the Court found those statements were nontestimonial and thus admissible against the defendant. (39) The Court, however, found the statements in Hammon were testimonial. (40) It reasoned:

      It is entirely clear from the circumstances that the interrogation [in Hammon] was part of an investigation into possibly criminal past conduct.... There was no emergency in progress; the interrogating officer testified that he had heard no arguments or crashing and saw no one throw or break anything. [T]here was no immediate threat to her person. When the officer questioned [the victim] for the second time, and elicited the challenged statements, he was not seeking to determine (as in Davis) "what is happening," but rather "what happened." Objectively viewed, the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime-which is, of course, precisely what the officer should have done. (41) In reaching a decision, the Court additionally noted how a conversation that begins as an interrogation to determine the need for emergency assistance may evolve into a testimonial statement, once the emergency-solving purpose has been achieved. (42)

      Recently, in Melendez-Diaz v. Massachusetts, the Supreme Court visited, once again, the Confrontation Clause. (43) The defendant in Melendez-Diaz was charged with distribution and trafficking of cocaine. (44) The prosecution introduced into evidence certificates reporting the results of forensic analysis showing the material police seized, and connected to the defendant, was cocaine. (45) The Court found the analysts were witnesses for the purposes of the Sixth Amendment and the certificates were the equivalent of affidavits within the category of extrajudicial statements the Court identified as testimonial in Crawford. (46) The Court reasoned the certificates were affidavits because they were "declaration[s] of facts written down and sworn to by the declarant before an officer authorized to administer oaths." (47)...

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