Legal Crossroads: the Hearsay Rule Meets the Sixth Amendment Confrontation Clause in Crawford v. Washington

• Publication year: 2003

38 Creighton L. Rev. 999. LEGAL CROSSROADS: THE HEARSAY RULE MEETS THE SIXTH AMENDMENT CONFRONTATION CLAUSE IN CRAWFORD V. WASHINGTON

Creighton Law Review

Vol. 38

"Few tasks in criminal evidence are more perplexing than to describe the effect of the Confrontation Clause of the Sixth Amendment upon the hearsay doctrine."(fn1)

INTRODUCTION

In Crawford v. Washington,(fn2) the Supreme Court overruled precedent in favor of a new interpretation of the Confrontation Clause.(fn3) The Crawford Court mistakenly abandoned the Roberts test for gauging reliability of out-of-court statements although the test applied to Crawford and produced the same result the majority achieved.(fn4) The Crawford Court narrowly interpreted Sixth Amendment history to exclude all testimonial hearsay, making confrontation the only method for gauging admissibility, but the majority failed to acknowledge that the law surrounding testimonial statements was unsettled at common law.(fn5) Indeed, civil-law witness examination dates back to the famous 1603 trial of Sir Walter Raleigh for treason.(fn6) Raleigh's trial concerned an incriminating out-of-court statement by Raleigh's alleged accomplice, Lord Cobham, given during an examination before the Privy Council.(fn7) Raleigh disputed Cobham's testimony and urged the court to call Cobham as a witness so he could confront him face to face.(fn8) The judges refused and sentenced Raleigh to death despite Raleigh's protests that he had been tried "by the Spanish Inquisition."(fn9) In Crawford v. Washington the Supreme Court cited the Raleigh case as proof that English law developed confrontation rights to limit abuses like those suffered by Raleigh.(fn10) However, the Crawford concurrence noted introduction of an unsworn examination at Raleigh's trial did not result in categorical differentiation between testimonial and nontestimonial statements.(fn11)

In Crawford, Sylvia Crawford ("Sylvia") provided the police with two taped statements about Michael Crawford ("Crawford") stabbing Kenneth Lee.(fn12) At Crawford's trial, the State intended to call Sylvia as a witness to prove that Crawford had not acted in self-defense, but Crawford invoked Washington's marital privilege to prevent Sylvia from testifying against him.(fn13) The State attempted to introduce transcripts of Sylvia's testimony, but Crawford argued introduction of the incriminating statements violated his Sixth Amendment(fn14) right to confront witnesses against him.(fn15) The trial court and State Supreme Court determined the out-of-court statements were reliable because the statements bore particularized guarantees of trustworthiness.(fn16) In Ohio v. Roberts,(fn17) the United States Supreme Court held that statements by an unavailable witness were admissible provided the declarant was unavailable and the statement contained adequate indicia of reliability.(fn18) The Roberts Court noted a statement contained adequate indicia of reliability if the statement fell within a firmly rooted hearsay exception or bore particularized guarantees of trustworthiness.(fn19) The Supreme Court in Roberts stated the indicia of reliability test and its components comported with the Confrontation Clause based on solid foundations and judicial and legislative experience.(fn20)

In Crawford, the Court determined confrontation was the only constitutionally prescribed method for assessing reliability of testimonial statements.(fn21) The Court in Crawford effectively overruled Ohio v. Roberts, and decided the Roberts test was unpredictable and admitted testimonial statements the Confrontation Clause intended to exclude.(fn22) The Crawford Court did not define "testimonial" and decided to leave it for another day.(fn23) The Crawford concurrence criticized the majority's distinction between non-testimonial and testimonial hearsay and noted such distinction was not rooted in common law.(fn24) The concurrence maintained that deference to Idaho v. Wright(fn25) would have achieved the same result the majority reached without overruling Roberts.(fn26)

This Note will discuss the Supreme Court's erroneous determination in Crawford to overrule Roberts, and thereby abandon a workable test for gauging the admissibility of out-of-court statements by an unavailable witness.(fn27) First, this Note will review the facts and holding of Crawford.(fn28) Second, this Note will review three cases addressing the requirements for admissibility of hearsay statements by an unavailable witness.(fn29) Finally, this Note will evaluate the Supreme Court's decision in Crawford and illustrate the Crawford Court incorrectly interpreted Sixth Amendment history and abandoned a workable test for assessing reliability of out-of-court statements.(fn30)

First, this Note will demonstrate that the Crawford Court wrongfully abandoned the Roberts test where application of Roberts test would have produced the same conclusion the majority reached.(fn31) Further, this Note will reveal that application of the Supreme Court's analysis in Idaho v. Wright would have also produced the same result the majority achieved in Crawford.(fn32) Secondly, this Note will show the Sixth Amendment Framers did not intend to categorically exclude testimonial statements when they drafted the Confrontation Clause, contrary to the Crawford Court's determination.(fn33) As a result, this Note will conclude that the Crawford Court wrongfully abandoned the Roberts test and determined Sylvia's statements were unreliable and inadmissible because Sylvia had not been cross-examined; a task better achieved through deference to Roberts and its progeny.(fn34)

FACTS AND HOLDING

On August 5, 1999, Michael Crawford ("Crawford") stabbed Kenneth Lee ("Lee") at Lee's home.(fn35) Crawford and his wife, ("Sylvia"), went to Lee's home because Crawford was upset about Lee's alleged attempt to rape Sylvia several weeks earlier.(fn36) Lee, Crawford and Sylvia spoke briefly, but Lee and Crawford began to fight, and the confrontation ended with Crawford stabbing Lee twice in the torso.(fn37) Later that evening, the police arrested Crawford and obtained separate, taped statements from both Crawford and Sylvia.(fn38) Several hours later, the police questioned Crawford and Sylvia separately and obtained a second set of taped statements.(fn39)

Crawford and Sylvia's first taped statements recounted similar stories.(fn40) According to their first taped statements, the Crawfords went to Lee's apartment and Crawford left to buy alcohol.(fn41) When Crawford returned to Lee's apartment, he heard Sylvia yelling and saw Lee make sexual advances toward Sylvia.(fn42) Crawford began fighting with Lee, which led to Crawford stabbing Lee.(fn43) However, the second set of taped statements told a different story.(fn44)

In their second statements, Crawford and Sylvia each stated the alleged rape occurred several weeks prior to the stabbing.(fn45) Sylvia and Crawford also stated they were visiting friends and Crawford became angry when someone mentioned Lee's name.(fn46) Sylvia and Crawford stated they left and began looking for Lee at several bars.(fn47) In their second statements, Sylvia and Crawford stated they were looking for Lee to demand he pay them a debt he owed, that Sylvia had directed Crawford to Lee's apartment, but that they had knocked on the wrong apartment.(fn48) The Crawfords maintained Lee opened his door anyway and spoke briefly with Sylvia and Crawford.(fn49)

The Crawford's second set of statements also differed from each other's; Sylvia's second statement alleged Lee reached to grab something after Crawford stabbed Lee.(fn50) However, Crawford swore he saw Lee reaching for something and thought he saw something in Lee's hands before Crawford stabbed him.(fn51) The State charged Crawford with attempted first degree murder while armed with a deadly weapon and first degree assault while armed with a deadly weapon.(fn52) At trial in the Superior Court for Thurston County, Washington, Crawford claimed he stabbed Lee in self-defense.(fn53) Crawford invoked Washington's marital privilege, precluding Sylvia from testifying against him at trial.(fn54)

Though Sylvia was unavailable to testify because Crawford exercised Washington's marital privilege, the State argued Sylvia's statements were admissible under the Washington martial privilege hearsay exception.(fn55) The State claimed Sylvia's statements were admissible because the statements fell within the hearsay exception for statements against penal interest under Washington Rules of Evidence (ER) 804(b)(3).(fn56) The State wanted to introduce Sylvia's tape recorded statements as evidence that Crawford did not stab Lee in self-defense.(fn57) The State argued that in both of Sylvia's statements to the police she admitted leading Crawford to Lee's apartment, thereby implicating herself in the assault.(fn58) Crawford argued that irrespective of state law, admitting Sylvia's statements into evidence would violate his Sixth Amendment constitutional right to confront witnesses before him.(fn59) Judge Richard A. Strophy admitted both of Sylvia's statements into evidence, reasoning Sylvia's statements were sufficiently reliable to counter any confrontation concerns.(fn60) The trial court noted Sylvia's second statement was reliable because Sylvia was an eyewitness with direct knowledge of the assault.(fn61) Additionally, the trial court determined Sylvia's second...