Introduction
The Confrontation Clause of the Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him[.]" U.S. Const. Amend. VI. In Crawford v. Washington,
541 U.S. 36 (2004), the United States Supreme Court addressed the interplay between the Confrontation Clause and exceptions to the hearsay
rule and held that the plain language of the Confrontation Clause bars the admission of out-of-court statements by witnesses that are testimonial,
unless the witnesses are unavailable and the defendant has had a prior opportunity to cross-examine the witnesses. The Confrontation Clause
bars such testimony regardless of whether the statements fit within a recognized exception to the hearsay rule or are otherwise deemed reliable by a
court. The decision in Crawford abrogated over two decades of constitutional jurisprudence established in Ohio v. Roberts, 448 U.S. 56
(1980), which had held that an unavailable witness's out-of-court statement could be admitted so long as it had adequate indicia of reliability—i.e.,
fell within a "firmly rooted hearsay exception" or bore "particularized guarantees of trustworthiness." Id. at 66.
Crawford Analysis
Justice Scalia, writing for the Court, looked to the original intent of the founders and determined that the historical record supports two
propositions: (1) the Confrontation Clause is not limited to in-court testimony, id. at 50, and (2) "the Framers would not have allowed admission
of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify[.]" Id. at 53. The analysis,
thus, was quite straightforward. Nothing in the text of the Sixth Amendment suggests any exceptions to the right to confrontation to be developed by
the courts, other than those exceptions that existed at the time of founding. Id. at 54. At the time of the founding, "[t]estimonial statements
of witnesses absent from trial [were] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine."
Id. at 59. Therefore, judge-made exceptions to the hearsay rule do not overrule the bar of the Confrontation Clause, no matter how reliable the statements.
"Dispensing with confrontation because testimony is obviously reliable," wrote the Court, "is akin to dispensing with jury trial because a defendant is obviously guilty.
This is not what the Sixth Amendment prescribes." Id. at 62. In short, "[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." Id. at 68-69.
After Crawford
The clarification of the scope of the Confrontation Clause set forth in Crawford, of course, has not kept hearsay completely out of criminal
proceedings. Whether the rule in Crawford applies to exclude an out-of-court statement of an unavailable witness who has not been subject to
cross-examination depends upon (1) whether the offered statement is testimonial and (2) whether the proceeding in which it is offered is a criminal prosecution
within the meaning of the Confrontation Clause. Accordingly, prosecutors and co-defendants frequently urge that hearsay is admissible against a defendant
because the proceeding is not subject to the protection of the Confrontation Clause or the proffered statement is not testimonial in nature. If the statement
sought to be introduced is determined to be non-testimonial, then the rule in Ohio v. Roberts, summarized in the Introduction, applies. See, e.g.,
State v. Ahmed, 2006 WL 91357 (Minn. Ct. App. 2006).
Of course, if the statement is not offered for proof of the matter asserted, then the statement is not hearsay and the rule in Crawford does not apply.
See, e.g., United States v. Walter, 2006 WL 51398 (1st Cir. 2006); United States v. Eberhart, 2006 WL 44096 (7th Cir. 2006). Furthermore,
if the proceeding in which the statement is offered is civil, then the Confrontation Clause does not apply. See, e.g., In re Detention of Brock, 126
Wash. App. 957, 110 P.3d 791 (2005) (proceeding for further detention under the sexually violent predator statute is civil in nature, and, thus, right to
confrontation does not apply).
Proceedings Covered By Crawford
Courts that have addressed the issue have limited Crawford's application to the actual trial. For example, it has been held that post-trial
proceedings, such as sentencing hearings, United States v. Stone, 432 F.3d 651 (6th Cir. 2005); United States v. Cantellano, 430 F.3d 1132
(11th Cir. 2005); and supervised release revocation hearings, United States v. Rondeau, 430 F.3d 44 (1st Cir. 2005), but see State v. Phillips,
2005 WL 3690731 (N.M. Ct. App. 2005) (certiorari granted), are not subject to the rule against the admission of hearsay in criminal prosecutions. Moreover,
it has been held that Crawford does not apply to pre-trial proceedings, such as a suppression hearing, People v. Robinson, 9 Misc. 3d 676,
802 N.Y.S.2d 868 (Co. Ct. 2005); Vanmeter v. State, 165 S.W.2d 68 (Tex. App.—Dallas 2005) (pet. for disc. writ refused), or to grand jury hearing.
People v. Laumeyer, 10 Misc. 3d 184, 801 N.Y.S.2d 880 (Co. Ct. 2005).
Testimonial Statements
The Court in Crawford specifically left "for another day any effort to spell out a comprehensive definition of 'testimonial.'" 541 U.S. at 68
(footnote omitted). However, the Court observed that "[w]hatever 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." Id. Moreover, in examining the historical basis for the Confrontation Clause,
the Court mentioned affidavits, depositions, confessions, custodial examinations, and other "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" as probable testimonial statements. Id. at
52.
If the declarant made the statement to other than a law enforcement official under circumstances in which the declarant was not anticipating a later trial,
then courts are willing the find the statement to be non-testimonial. For example, in State v. Ahmed, supra, the Minnesota Court of Appeals
affirmed the admission of testimony by the passenger in a vehicle that rolled over after being chased by another driver that the driver of the vehicle in which
she was a passenger told her that the driver of the errant vehicle was his former girlfriend, the defendant. The court determined that the statement was not
testimonial because a reasonable person in the declarant's position would not have been thinking of a future trial, but would have been trying to avoid the
dangerous driver. See also United States v. Peneaux, 432 F.3d 882 (8th Cir. 2005) (statements made to a physician by a child who was taken to the
physician by foster parents was non-testimonial); State v. Mizenko, 2006 WL 59793 (Mont. 2006) (victim's statement to neighbor that defendant had been
drinking and was trying to hurt her was non-testimonial).
Moreover, hearsay has been found to be admissible against a defendant under circumstances in which the defendant waived his right to confront adverse witnesses
by killing the declarant in order to eliminate him as a witness against the defendant. State v. Hand, 107 Ohio 3d. 378, 840 N.E. 151 (2006).
The day in which the Court will spell out a comprehensive definition of "testimonial" may have arrived, courtesy, once again, of the Washington Supreme Court, as
well as the Indiana Supreme Court. The United States Supreme Court recently granted petitions for writs of certiorari in two domestic abuse cases, Davis
v. Washington, 126 S. Ct. 547 (2005), and Hammon v. Indiana, 126 S. Ct. 552 (2005), which will be argued together. Id. at 547, 552.
In State v. Davis, 154 Wash. 2d 291, 111 P.3d 844 (2005), the Washington Supreme Court affirmed the admission of a 911 call against an assertion that it
violated the Confrontation Clause on the basis that it was non-testimonial, since the purpose of the call was to seek assistance and protection from peril. To
the extent that information provided in the 911 call was not specifically related to seeking assistance and protection from peril, the admission of that information
was harmless error. Similarly, in Hammon v. State, 829 N.E.2d 444 (Ind. 2005), the court upheld the admission of the oral statement of the defendant's wife
to police officers who responded to a reported domestic disturbance on the basis that such statement was not testimonial since the wife's motivation was to convey
basic facts to assist in determining whether police action was necessary, and there was no suggestion that the wife wanted her initial responses to be preserved
or otherwise used against defendant at trial. The court also found that although a signed and sworn written statement provided by the wife to the police was
testimonial, its admission was harmless error.
Conclusion
Although Crawford has not eliminated the need for criminal defense counsel and prosecutors to stay abreast of developments in the law of hearsay, it
has confirmed the primacy of the Confrontation Clause when out-of-court testimonial statements of an unavailable witness who has not been subject to cross-examination
are sought to be introduced against a criminal defendant. Given that in the 24 years immediately preceding Crawford, the rule under Ohio v. Roberts
had been that such statements may be admitted if they fit within an exception to the hearsay rule or are otherwise reliable, defense counsel must remain vigilant in
protecting the right of defendants to confront adverse witnesses and reminding courts and prosecutors alike of the rule in Crawford.
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