Wrestling with Crawford v. Washington and the new constitutional law of confrontation.

• Author: Yetter, John F.

On March 8, 2004, the U.S. Supreme Court handed down Crawford v. Washington, 124 S. Ct. 1354 (2004), reversing a decision of the Washington Supreme Court that had upheld Crawford's conviction for assault. (1) A hearsay statement Crawford's wife gave to a police officer during interrogation was erroneously admitted against Crawford at trial. (2) A majority of seven, in an opinion written by Justice Scalia, (3) seized the moment to reinvent the constitutional law of confrontation. (4) The Court erased a body of precedent that was, if not completely favorable to the prosecution, well understood and generally accommodating to the use of hearsay evidence without the necessity of calling the declarant as a witness. Prosecutors now must operate under the less friendly rules of Crawford. The rules themselves are at least clearly stated, although unclear in their application. But, beyond a small group of certain evidentiary situations, there is a decisional void as to when the rules apply. Defense counsel will argue for an expansive interpretation, and state and federal judges will have to wrestle with a difficult and incomplete precedent. Compounding that interpretive problem are a number of difficult issues surrounding the application of the Crawford rules.

This article discusses the interpretive problem posed by Crawford and looks at some of the problems facing prosecutors attempting to satisfy the Crawford rules for the admission of evidence that contains testimonial statements of persons who are not witnesses. (5)

Crawford as Precedent

The Court in Crawford decided that some hearsay evidence, (6) that which contains "testimonial" statements, is inadmissible in criminal prosecutions unless the declarant (the person making the out-of-court statement) either testifies or, if not, the prosecution demonstrates both a constitutionally acceptable reason for not producing the declarant as a witness, (7) and, more importantly, that the defendant had an opportunity to confront and cross-examine the declarant at an earlier proceeding. (8) As to what qualifies as a testimonial statement, the Court said:

We leave for another day any effort to spell out a comprehensive definition of "testimonial." Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed. (9)

The law prior to Crawford, summarized in Ohio v. Roberts, 448 U.S. 56, 63 (1980), viewed eye-to-eye confrontation as a provisional right of the defendant, often diluted by or sacrificed to other legitimate state interests such as the need for probative evidence or the protection of vulnerable witnesses. Accordingly, the defendant had no right to confront declarants if the prosecution's hearsay evidence had sufficient indicia of reliability. (10) Such indicia were present, by definition, if the hearsay was admitted under a "firmly rooted" hearsay exception. (11) If the exception was not "firmly rooted," admission was contingent on a judicial finding that the hearsay statement was made in circumstances that endowed it with "particularized guarantees of trustworthiness." (12) This "trustworthiness" requirement for the "non-firmly rooted" hearsay was ultimately an evaluative judicial opinion, not a historical fact, and just as in Crawford itself, where the Washington Court of Appeals disagreed with both the trial court and the Washington Supreme Court on the trustworthiness of the claimed statement against penal interest, the judicial outcomes were conflicting and unpredictable. (13)

Under Crawford, on the other hand, confrontation of persons making testimonial statements is not just one of a number of conflicting interests; it is a constitutional mandate.

Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of "reliability." ... Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. (14)

The Crawford opinion is an "original meaning" archetype. It applies the words of the constitutional text informed by the historical context in which they were written and adopted. The Court thought that the purpose of the framers was to prohibit the practice of obtaining testimony of persons in ex parte judicial proceedings and then using that testimony to convict defendants without ever producing the accusers as witnesses. (15)

The Court concluded further that custodial police interrogations were within this category of practice although they are not formal testimonial events:

Statements taken by police officers in the course of interrogations are also testimonial.... Police interrogations bear a striking resemblance to examinations by justices of the peace in England. The statements are not sworn testimony, but the absence of oath was not dispositive. ... That interrogators are police officers rather than magistrates does not change the picture either. Justices of the peace conducting examinations ... were not magistrates as we understand that office today, but had an essentially investigative and prosecutorial function. ... England did not have a professional police force until the 19th century ... so it is not surprising that other government officers performed the investigative functions now associated primarily with the police. The involvement of government officers in the production of testimonial evidence presents the same risk, whether the officers are police or justices of the peace.

In sum, even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class. (16)

As mentioned earlier, the most problematic aspect of Crawford is its failure to describe the general defining criteria for testimonial statements. That being said, it is possible to construct a current list from the Court's language, comprising three formal testimonial situations: 1) testimony at a preliminary hearing; 2) testimony before a grand jury; and 3) testimony at a former trial; (17) and two substantial equivalents: 4) statements made in police interrogation (the situation before the Court in Crawford); and 5) statements made by a defendant incident to entering a guilty plea ("plea allocutions"). (18)

If this list turns out to be exclusive, Crawford will have no remarkable effect on criminal prosecutions in Florida because it will construct no new barriers to the admissibility of hearsay evidence that are not already in place, either in our evidence law or in our existing decisional law applying the confrontation clause. (19) The list is almost certainly not exclusive, however, and the critical question is what the governing criteria for judgment should be.

There are two potential interpretive approaches to the Crawford precedent. The first would leave to the Supreme Court the decisional task of describing more completely the defining characteristics of testimonial statements. It would accept the Court's historical conclusions and search for statements elicited by state agents in contexts analogous to ex parte judicial proceedings, the target evil of the framers. (20) The defining characteristic of these ex parte proceedings was that they were procedural events with easily recognizable trappings. Further, the formality of the procedural context endowed the statements with the solemnity essential to the idea of "testimony." (21) The motivating purpose of the event--to obtain testimonial evidence for later use--could be inferred from its objective characteristics without reference to the ultimately unknowable inner thoughts or expectations of the participants.

Of course, in Crawford itself, the Court took the critical interpretive step of extending the "testimonial statement" idea beyond formal testimony, while still focusing on a procedural context identifiable from its objective characteristics, i.e., post-custody interrogation of a suspect. The raison d'etre of these interactions is the generation of statements that might be used later against a defendant at trial. (22) If courts interpreting and applying Crawford engage in a similar effort, one can anticipate the development over time of a relatively clear set of state-citizen interactions that produce "testimonial statements." This approach would avoid returning confrontation law to that same unpredictable quality that the Court sought to escape in Crawford. (23)

Under this method, the scenario that comes immediately to mind as very possibly producing testimonial statements is the interviewing of complainants of sexual abuse by members of child protection units and similar personnel. (24) These events are motivated in large part by the search for evidence and they are the type of repetitive procedural events that are defined by their context and not by the evanescent expectations of the participants. Furthermore, the personnel of these units have been treated as members of the extended prosecutorial team. (25)

On the other hand, this contextual approach would exclude from the testimonial category statements made in contexts generated or provoked by the declarant or other citizen complainants. Thus, the statements made to 911 operators or to police officers who have responded to a citizen's request for investigation or help--usually admitted under the firmly rooted hearsay exception for excited utterances that had a constitutional carte...