SC Lawyer, Sept. 2004, #1. The Confrontation Clause and Justice Scalia: everything old is new again.

• Author: By Warren Mo\xEFse

South Carolina Lawyer

2004.

SC Lawyer, Sept. 2004, #1.

The Confrontation Clause and Justice Scalia: everything old is new again

South Carolina LawyerSeptember 2004The Confrontation Clause and Justice Scalia: everything old is new againBy Warren MoïseSlowly they danced, intertwined in one another's arms, the tall and aristocratic Confrontation Clause looking deeply into the eyes of the hearsay rule, a diminutive southern belle. The romance had begun 24 years ago when the band began playing that beautiful beach music melody, Ohio v. Roberts, 448 U.S. 56 (1980). But now the band changes its tune. It breaks into a loud, brash rhumba - Crawford v. Washington, 124 S. Ct. 1354 (2004)! The dancers separate. The romance is over, although not this tortured analogy.

Crawford v. Roberts

In Crawford, the defendant's wife told him that the victim had assaulted her. They went to the victim's apartment where the accused stabbed the victim. At trial the prosecutor claimed that the stabbing was a unilateral assault, but the accused alleged he had done it in self-defense.

Both the defendant and his wife gave separate recorded statements to the police that were consistent, except that the wife's statement arguably contradicted her husband's claim of self-defense. The husband invoked the marital privilege so his wife could not testify at trial. Using the Roberts analysis, the judge found the wife's statement trustworthy, in part because she was being interrogated by the investigating police officers, who according to the judge, were "neutral." The prosecutor introduced the wife's statement, although the husband had no prior opportunity to cross-examine her.

Appellate review was a ping pong game. The Washington Court of Appeals reversed the trial judge, the Washington Supreme Court reversed the court of appeals and the U.S. Supreme Court reversed the Washington Supreme Court, throwing the Roberts analysis in the appellate trash can. In support, the Crawford Court cited a South Carolina Court of Appeals opinion dating back 160 years.

Tell mama (all about it)

How does Crawford work? Think of it as if Federal and South Carolina Rules of Evidence 801 through 807 regarding hearsay have been amended. Previously if a hearsay statement fell within a firmly rooted hearsay exception (or, for statements admitted under Federal Rule of Evidence 807, had "particularized guarantees of trustworthiness") and bore sufficient indicia of reliability, admission of the out-of-court statement did not violate the Confrontation Clause. No longer. Now when a party attempts to introduce prior testimonial evidence from an unavailable witness, there must be a foundation showing that there was an opportunity for cross-examination. When the witness is actually at trial and testifies, Crawford is no bar to admission of a prior out-of-court testimonial statement. Whether a testimonial dying declaration is not covered by the Crawford rule remains to be seen.

In People v. Fry, 2004 WL 1432548 (Colo. 2004), the Colorado Supreme Court considered whether an adverse witness's testimony at a preliminary hearing was admissible against the defendant when the adverse witness had died between the preliminary hearing and trial. The Fry court refused to consider whether the prior testimony fell within the hearsay exception for an unavailable witness because such an analysis was irrelevant under Crawford.

Can I get a witnessssss?

Crawford is concerned with testimonial evidence. In the past, courts generally referred to such evidence as oral statements given under oath. See, e.g., State v. Brannon, 341 S.C. 271, 533 S.E.2d 345 (Ct. App. 2000) (Stilwell, J.). However, under Crawford, "testimonial" evidence need not be under oath. Think of testimonial evidence in the biblical sense of someone who simply "bears witness" against another. "Testimony" is generally "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." 1 N. Webster, An American Dictionary of the English Language (1828) (emphasis added). The idea is that a testimonial statement is one intended or expected to have some legal effect. Thus, information given to police officers investigating a crime is testimonial, whereas a casual remark to a friend is not. Crawford stands for the proposition that testimonial evidence includes, at a minimum, testimony at a prior trial, preliminary hearing and before a grand jury, as well as formal statements given to law enforcement agents. Affidavits, depositions, prior testimony and confessions might fit this bill if made for the purpose of establishing or proving some fact. Cf. White v. Illinois, 502 U.S. 346, 365 (1992) (Thomas, J., joined by Scalia, J., concurring in part and concurring in judgment). One commentator opines that laboratory reports in criminal cases generally should be considered testimonial. See Richard D. Friedman, Adjusting to Crawford, 19 Crim. J. 4, 11 (Summer 2004).

Whether the Crawford rule applies to non-testimonial evidence is doubtful. See Crawford, 124 S. Ct. at 1370. Some states have continued to apply the Roberts rule to non-testimonial evidence. It is clear that the Confrontation Clause still allows states to develop hearsay rules for non-testimonial evidence and to exempt such statements from Confrontation Clause scrutiny altogether. The Court specifically noted that statements in furtherance of a conspiracy (party admissions under Rule 801(d)(2)(E)) and business records (a hearsay exception under Rule 803(6)) are non-testimonial in nature, see Diaz v. Herbert, 317 F. Supp. 2d 462 (S.D.N.Y. 2004). See also State v. Castilla, 87 P.3d 1211 (Wash. App. Div. 1 2004) (incompetent rape victim's statements for purposes of medical treatment that she had been touched sexually were "non-testimonial"). Moreover, if the testimonial statement is not used to prove the truth of the matter asserted, Crawford is no bar to admissibility.

I hear you knockin' but you can't come in

It's one thing to appeal, but it's quite another to have an appealable issue. You must sing the same melody to the appellate court that you crooned to the trial judge. Although closely tied to one another, a hearsay objection rests on a different ground from a Confrontation Clause objection. An objection to one may be inadequate to preserve the other. Bunton v. State, 136 S.W.3d 355 (Tex. App. 2004) (Crawford does not require appellate review of Confrontation Clause violation when only hearsay objection raised at trial).

Searchin' searchin' for my baby . . .

To what type proceedings does Crawford apply? Crawford does not specifically mention whether it applies to criminal trials, civil trials or parole or probation revocation hearings, or analyze this issue much at all.

The right to confrontation may be viewed in several ways. The easy case is a criminal trial where guilt or innocence, or life or death, are at issue. Where hearsay testimony is offered in such a criminal prosecution, the full spectrum of constitutional rights including the Sixth Amendment right to confrontation apply to protect the accused. The thrust of Crawford and the historical background set forth in the opinion were directed at the Confrontation Clause. The Sixth Amendment right of confrontation deals with criminal law: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ."

On the other hand, when the proceeding is not a criminal proceeding, or is ancillary to a criminal proceeding, courts under Morrissey v. Brewer, 408 U.S. 471 (1972) hold that the right of confrontation applies, but it is a lesser version arising not under the Sixth Amendment but under the 14th Amendment's Due Process Clause. United States v. Barraza, 318 F. Supp. 2d 1031 (S.D. Cal. 2004) (citing United States v. Comito, 177 F.3d 1166 (9th Cir. 1999)). In Barraza, the district court recognized that there was a split of opinion on whether Morrissey was a Sixth Amendment or a due process case, but determined that Crawford applied only to Sixth Amendment rights. Therefore, under the common law of Morrissey, the Crawford rule was inapplicable to a non-criminal proceeding such as a supervised release revocation hearing. How the Supreme Court will deal with this issue is unclear.

Although civil litigants enjoy due process rights, see. e.g., Capitol Mortg. Bankers, Inc. v. Cuomo, 222 F.3d 151, 155-56 (4th Cir. 2000), given the thrust of Crawford toward criminal prosecutions and the Sixth Amendment's history, it seems likely that Crawford will have little effect on the garden variety civil trial. See Commonwealth v. Given, 441 Mass. 741, 808 N.E. 2d 788 (2004) (Crawford inapplicable to civil sexual predator trial).

Ain't that a shame

Judge Emory Widener Jr. of the Fourth Circuit must have been shaking his head as he read Crawford. His prescient dissent in United States v. Payne, 492 F.2d 449 (4th Cir. 1974) 40 years earlier foreshadowed Justice Scalia's juxtaposition of constitutional and evidence law in Crawford. Judge Widener wrote in Payne that "the majority here by its relating the admissibility of the statement solely to rules of evidence rather than giving effect to the prescribed procedure, little or nothing is left of the confrontation clause[.] I cannot conceive that the framers of the Sixth Amendment ever dreamed such a result could be attained." Payne, 492 F.2d at 463 (Widener, J., concurring and dissenting). Nor did Justice Scalia. It just goes to show that good ideas such as confrontation and due process are like facts: stubborn things that don't go away quietly.

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