Confrontation After Crawford v. Washington Jessica Smith, Institute of Government June, 2004

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“New test” “Newly modified course” “Significant change in the law” “Substantially altered the law” “Significant revisions” “Confrontation revolution” Confrontation “radically” redefined

The Battleground

911 Calls Excited utterances to police officers Statements to family & friends “Victimless” domestic violence Affidavits & reports such as autopsy, DNA & drug tests Statements to police during investigations Child victims

Teaching Objectives: Understand Crawford Be able to apply Crawford

Confrontation Before Crawford Ohio v. Roberts, 448 U.S. 56 (1980) Unavailable witness’s statement may be admitted if it bears “adequate indicia of reliability.” To meet that test, the evidence must either fall within a “firmly rooted hearsay exception” or bear “particularized guarantees of trustworthiness.”

Confrontation Before Crawford United States v. Inadi, 475 U.S. 387 (1986), and later White, clarified that under Roberts, unavailability only is required when the challenged statement was prior testimony

Confrontation Before Crawford White v. Illinois, 502 U.S. 346 (1992) Statements of a child victim to mother, babysitter & police officer were admitted as spontaneous declarations; Statements to emergency room nurse & doctor were admitted as statements for the purpose of medical treatment.

Facts of Crawford: Assault & attempted murder Police arrest D & interrogate him & his wife D’s account indicates self-defense; wife’s calls that into question Marital privilege & hearsay exception

Issue: Did the state's use of the wife’s statement violate the Sixth Amendment’s Confrontation Clause?

Held: Yes. “Testimonial” statements of witnesses who are not subject to cross examination at trial may be admitted only when the declarant is unavailable and the defendant has had a prior opportunity to cross- examine.

Confrontation Clause: "[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him."

Scalia’s Analysis: Text of Clause doesn’t answer History supports 2 inferences

Scalia’s Analysis: (1) Clause was directed at the “evil” of using ex parte examinations as evidence against the accused (2) Framers would not have allowed testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination

Scalia’s Analysis: Distinguishes White Rejects part of Roberts

Scalia’s Analysis: Notes that 2 options have been proposed: (1) Apply the Clause only to testimonial statements, leaving the remainder to regulation by hearsay law (2) Impose an absolute bar to statements that are testimonial, absent a prior opportunity to cross-examine

Scalia’s Analysis: Notes that 2 options have been proposed: (1) Apply the Clause only to testimonial statements, leaving the remainder to regulation by hearsay law (2) Impose an absolute bar to statements that are testimonial, absent a prior opportunity to cross-examine X X X

Scalia’s Analysis: Held: Where testimonial evidence is at issue, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.

Scalia’s Analysis: In the end... Confrontation Clause requires reliable evidence But reliability may be assessed in only one way: CROSS EXAMINATION

? What is “testimonial”

“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.”

? What is “testimonial” prior testimony at a preliminary hearing, before a grand jury, or at a former trial police interrogations plea allocution showing existence of a conspiracy

? What is “testimonial” X off-hand remarks X casual remark to acquaintance X business records X statements in furtherance of a conspiracy

? What is “testimonial” What about everything else?!

? What is “testimonial” Scalia notes that the refusal to articulate a comprehensive definition will “cause interim uncertainty”

? What is “testimonial” Rehnquist, CJ, concurring in the judgment stated: The decision “casts a mantle of uncertainty over future criminal trials.”

? What about non- testimonial statements? Roberts still applies But for how long?

1. At defendant’s trial, the state seeks to introduce an accomplice’s statement made during a custodial police interrogation and implicating defendant in the crime. The accomplice testifies and is subject to cross-examination. Does the Confrontation Clause bar admission? YesNoCould go either way

2. At defendant’s trial, the state seeks to introduce a statement made by a non- testifying accomplice during a custodial police interrogation. The statement is offered as impeachment evidence. Does the Confrontation Clause bar admission? YesNoCould go either way

3. Defendant is on trial for robbery. The state seeks to introduce the following statement made by an alleged accomplice to his wife, as the accomplice was dying: “I messed up. I did a robbery with defendant. When I tried to cheat him out of his share, he shot me. Please forgive me.” Does the Confrontation Clause bar admission? YesNoCould go either way

4. Defendant is on trial for drug trafficking. During an interrogation, the police obtained from informant a written statement implicating defendant in the crime. Defendant learns of informant’s identity during discovery and has him killed. At trial, the state seeks to introduce informant’s statement. Does the Confrontation Clause bar admission YesNoCould go either way

5. Defendant is on trial for assaulting his wife. His wife has pressed other charges against him and every time he retaliates with more severe abuse. This time, she is afraid to testify. At trial, the state seeks to introduce her statements, given to the police in response to questioning after the incident at issue. Does the Confrontation Clause bar admission? YesNoCould go either way

6. At defendant’s murder trial, the state seeks to introduce the medical examiner’s autopsy report. The medical examiner has retired and is unavailable to appear at trial. Does the Confrontation Clause bar admission of the autopsy report? YesNoCould go either way

7. D is tried for assault with a deadly weapon. The state seeks to introduce sales records from a gun shop that sold the weapon 1 week before the shooting. The records note that the gun was sold to D & include a notation of his address & driver’s license number. The store owner who created the record is not available to testify. Does the Confrontation Clause bar admission? YesNoCould go either way

8. A 7-year-old child runs home, cut, bleeding and hysterically crying. She immediately tells her mother that defendant sexually assaulted her. The child does not testify at trial and the state seeks to introduce the child’s hearsay statements to her mother. Does the Confrontation Clause bar admission? YesNoCould go either way

9. Same facts but now the mother immediately takes the child to the emergency room. While treating the child, the doctor asks the child what happened to her. The child tells the doctor that defendant sexually assaulted her. The child does not testify at trial and the state seeks to introduce the child’s hearsay statements to the doctor. Does the Confrontation Clause bar admission? YesNoCould go either way

10. Now a police officer sees the child running home. The officer tells her he is a police officer and will help her. He then asks her to tell him what is wrong. The child responds that defendant sexually assaulted her. The child does not testify at trial and the state seeks to introduce the child’s hearsay statements to the officer. Does the Confrontation Clause bar admission? YesNoCould go either way

11. D is on trial for armed robbery. The state offers accomplice’s wife. She will testify that after she heard accomplice on the phone with defendant, she asked him what was going on. He said: “Just get me your dad’s gun. D and I have a plan to get us rich fast.” Accomplice is not available to testify at trial. YesNoCould go either way

12. At defendant’s larceny trial, the state seeks to introduce the plea allocution of a co-defendant, who has already been released from prison. The prosecutor says that he tried to find the co-defendant by checking for him at the address listed in his court file. As it turns out, co-defendant had moved. Does the Confrontation Clause bar admission? YesNoCould go either way

13. After a successful appeal, defendant is being tried a second time for robbery. At the second trial, the state seeks to introduce witness’s testimony, given at the first trial. Witness is unavailable. Does the Confrontation Clause bar admission? YesNoCould go either way

And now... State v. Forrest, -- N.C. App. – (May 18, 2004)

And just when you thought we were finished...

Retroactivity?