SC Lawyer, Nov. 2005, #2. Crawford v. Washington: a retro protection guaranteeing the right to confrontation?.

AuthorBy D.C. Kennedy

South Carolina Lawyer


SC Lawyer, Nov. 2005, #2.

Crawford v. Washington: a retro protection guaranteeing the right to confrontation?

South Carolina LawyerNovember 2005Crawford v. Washington: a retro protection guaranteeing the right to confrontation?By D.C. KennedyIn 2004, the U.S. Supreme Court changed the legal landscape between hearsay and the Confrontation Clause with its decision in Crawford v. Washington, 541 U.S. 36 (2004). In Crawford, the Court held that "[t]estimonial statements of witnesses absent from trial [are to be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Id. at 59. The breadth of this ruling will be determined by court decisions regarding (1) the definition of the term "testimonial" and (2) whether the rule laid down in Crawford is applied retroactively to cases on collateral review.

I. The legal landscape between hearsay and the Confrontation Clause: pre-Crawford and post-Crawford

The Confrontation Clause of the Sixth Amendment to the U.S. Constitution guarantees a defendant the right "to be confronted with the witnesses against him." U.S. Const. amend. VI. Until 2004, the interaction between hearsay and the Confrontation Clause appeared to be a settled issue. According to the seminal case of Ohio v. Roberts, the Sixth Amendment did not bar admission of an unavailable declarant's out-of-court statements if an adequate "indicia of reliability" could be shown. Ohio v. Roberts, 448 U.S. 56, 66 (1980). A hearsay statement met the requirements of an adequate "indicia of reliability" if it fell under a "firmly rooted hearsay exception" or bore "particularized guarantees of trustworthiness." Id. Generally speaking, Roberts rested on the evidentiary principle of reliability rather than on the constitutional principle of confrontation. Bockting v. Bayer, 399 F.3d 1010, 1015 (9th Cir. 2005).

In its 2004 decision in Crawford, the U.S. Supreme Court altered the understanding of the interaction between hearsay and the Confrontation Clause in criminal trials. Crawford, 541 U.S. at 68. The underlying facts in the case revolved around a defendant's claim of self-defense to a charge of assault. Id. at 40. Because the state's spousal privilege rule prevented the defendant's wife from testifying but a hearsay rule allowed the wife's out-of-court statements to be considered for admission, the prosecutor sought to admit a taped statement made by the wife to police. Id. After the judge ruled that the statement bore "particularized guarantees of trustworthiness," the prosecutor played the tape for the jury and argued in closing that the wife's statement refuted the defendant's claim of self-defense. Id. at 40-41 (citing Roberts, 448 U.S. at 66). The jury found the defendant guilty of assault. Crawford, 541 U.S. at 41.

In reviewing the defendant's conviction for violations of the Confrontation Clause, the U.S. Supreme Court announced "testimonial statements of a declarant are not admissible against the accused unless (1) the prosecution calls the declarant as a witness, thus giving the accused a present opportunity for cross-examination; (2) the declarant is now unavailable, and the accused had a prior opportunity to cross-examine him or her; or (3) the accused has wrongfully procured the declarant's unavailability." Ralph Ruebner & Timothy Scahill, Crawford v. Washington, the Confrontation Clause, and Hearsay: A New Paradigm for Illinois Evidence Law, 36 Loy. U. Chi. L.J. 703, 714 (Spring 2005) (citing Crawford, 541 U.S. at 53-54, 59 n.9, 62) [hereinafter "New Paradigm"]. "In other words, '[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.'" Bockting, 399 F.3d at 1015 (quoting Crawford, 541 U.S. at 68).

In its ruling in Crawford, "the Court divided out-of-court statements into two categories, those that are testimonial in nature and those that are not." Mungo v. Duncan, 393 F.3d 327, 335 (2nd Cir. 2004). Because the Court held that nontestimonial statements of witnesses would not be subject to exclusion based on Confrontation Clause violations, the impact of Crawford will largely be determined by the definition of "testimonial," a definition that the U.S. Supreme Court left for another day. Crawford, 541 U.S. at 68 (holding nontestimonial hearsay was exempted from Confrontation Clause scrutiny); id. (holding the definition of "testimonial" was left undecided); see State v. Davis, 364 S.C. 364...

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