Wednesday, August 31, 2005

Expanding Crawford v. Washington: The Need for An Absolute Confrontation Clause

Last term, the United States Supreme Court announced its decision in Crawford v. Washington,2 which overruled the "Roberts framework"3 as a means to determine the admissibility of an out of court statement in which the declarant was unavailable to testify at a criminal trial.4 The "Roberts framework" allowed the admission of out of court testimony if the statement bore "adequate 'indicia of reliability'", 5 which meant that the evidence must either fall within a "firmly rooted hearsay exception" or bear "particularized guarantees of trustworthiness."6

Lower courts struggled with the application of Roberts, 7 and the U.S. Supreme Court finally abandoned it in Crawford v. Washington. Justice Scalia's opinion looked to the historic context of the Sixth Amendment and created a test based on the nature of the statement.8 The new test requires a trial court to first determine whether a statement is "testimonial" or "non-testimonial". If the statement is found to be "testimonial" then the out of court statement is not admissible at trial unless the declarant is unavailable and the defendant had "a prior opportunity for cross-examination". If "non-testimonial", then the statement is admissible without requiring the declarant to be available for cross-examination at trial (or an earlier proceeding). This begs the question left unanswered by the Court, what does "testimonial" mean?

The Court provided some guidance by indicating that, while "leav[ing] for another day any effort to spell out a comprehensive definition of 'testimonial'", "at a minimum [testimonial statements include] prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations". 9 The use of the "testimonial" test was favored by amici (including NACDL, the ACLU, and a distinguished group of criminal law professors) and on its face appeared to be a step toward strengthening the Confrontation Clause, but it has unfortunately quickly created confusion among the lower courts 10 and at least one instance where the trial court seems to avoid the Crawford ruling. 11

The major reason for the inconsistency in the lower courts is the lack of a uniform definition of "testimonial," so courts can clearly and uniformly determine if statements are testimonial or nontestimonial. A comprehensive definition would remedy a great deal of the inconsistency in the application of the Supreme Court's test. For example, the 6th Circuit Court of Appeals has adopted Professor Robert Friedman's logical approach that a statement is "testimonial" if it was "made in circumstances in which a reasonable person would realize that it likely would be used in investigation and prosecution of a crime."12

The other concern arising from the Crawford opinion is that Justice Scalia has arguably invited inconsistent results in applying the Confrontation Clause in cases of nontestimonial hearsay. Given the undefined nature of the term "testimonial", that concern extends to the application of the Crawford test in any instance other than those circumstances specifically described in the Supreme Court opinion. In Crawford, Justice Scalia wrote that "[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law-as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether." 13

Justice Scalia's language appears to invite State court's to create their own hearsay rules for nontestimonial statements. It opens the door for an interpretation that the Confrontation Clause would not provide an accused with any right to confront a hearsay statement deemed to be non-testimonial. 14 The undefined nature of "testimonial" places discretion with the trial courts to make a determination that can avoid the Confrontation Clause altogether for testimony that they characterize as "non-testimonial." This gives judges, like Judge Greenberg who found that a 911 call was "nontestimonial" apparently under any circumstance, 15 the ability to craft a desired result simply by determining a statement is "non testimonial."

In order to correct these results, at the minimum, a clear standard for testimonial statements should be laid out by the United States Supreme Court. The inconsistencies under both the Roberts framework and the Crawford test support the assertion that, in order for the rights of the Confrontation Clause to be secure, it should apply to all statements to be used in court against a defendant. The Confrontation Clause should be interpreted to provide the right of the accused to cross-examine all statements introduced by the prosecution without the use of a "testimonial"/"nontestimonial" inquiry.

The danger of Justice Scalia's invitation to state court judges's to define types of statements as non testimonial is more than the just lack of consistency in the law. The impact of the Supreme Court's lack of guidance has already been dramatically felt in People v. Moscat. Unfortunately, it is not difficult to imagine even more severe results.

For example, picture a scenario where the prosecution seeks to introduce a statement from "an ancient text" in trying an individual accused of possession of child pornography. The document is a 20 year old article from a poorly-circulated tabloid newspaper which includes a statement that your client "likes them young" and that the commentator "wouldn't leave [your client] alone with her children".

Your client informs you that the individual providing the statement was a former romantic interest, who made negative comments to the press in retaliation to their break-up. Your client has no idea where this individual currently resides. You employ an investigator but are unable to locate the individual. The prosecutor intends to use the statement, and the matter comes before the court. Despite diligent efforts, you inform the court that the person providing the quote to the newspaper can not be located for service.

The trial judge reviews the statement and analyzes it under the Crawford test. The judge finds correctly that the statement was not made in circumstances in which a reasonable person believed would lead to investigation of a crime, focusing on the lack of any investigation at that time, the low circulation of the document, and that the statement did not refer to any specific act. The court finds that the statement was "nontestimonial" in nature, and rules that it will be admissible at trial.

The result does not allow for your client to confront and cross-examine the statement, which can lead to damaging results at trial. It does not provide the defendant with the opportunity to inform the jury as to the rationale behind the statement or to explore or dispute the statement through cross-examination. The jury can not gauge the credibility and truthfulness of the declarant. There is a lack of assurance as to openness of procedure to show that the statement was not coerced earlier. Finally, the lack of open testimony can create doubt as to the accuracy of the declarant's position.

In sum, the statements by Justice Scalia provide an opportunity for courts to void the result of Crawford by characterizing a statement as nontestimonial and creates the opportunity for result-oriented judging disregarding the Sixth Amendment's Confrontation Clause protection, just like it created that opportunity under the Roberts framework. The reality is that the result that Justice Scalia indicated that he sought to avoid, though the Crawford decision, has already reared its head.16

While the majority opinion rightly points out that the Crawford framework can "hardly be any worse than the status quo [under the Roberts framework]", it left to the state courts, provided with no definition of "testimonial", to determine whether the new framework will be any better.

Civil libertarians should advocate for a standard in which the Confrontation Clause requires that statements sought to be introduced by the prosecution at a criminal trial are inadmissible unless the prosecution is able to provide the author of that statement at trial. The only exceptions to that rule would be in circumstances where the accused caused the unavailability of the witness,17 or waived objection to the statement. This would eliminate the ability to introduce statements in which the defendant had a prior opportunity to cross-examine that statement but the witness was not available at trial (since this would not allow the jury the opportunity to observe the demeanor of the witness and make credibility determinations) and also not allow the admission of dying declarations in a criminal trial (since the defendant can have no opportunity to cross-examine the declarant for possible animus in making the statement or other bias).

Instead of courts subjectively attempting to interpret the rationale behind an individual providing a statement, as required under Crawford, the Confrontation Clause should be given its proper meaning and require that the defendant have the opportunity to cross-examine any statement used by the prosecution, whose intent to prosecute is clear. Only under this absolute framework, can "the accused enjoy ... the right ... to be confronted with the witnesses against him" as provided for under the Confrontation Clause of the Sixth Amendment.


This article is based on a portion of the materials the author prepared as part of the "Wisconsin Criminal Litigation Update" seminar panel hosted by the Professional Education Systems Institute, LLC.
Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
Crawford, 124 S.Ct. at 1378 (Rehnquist, C.J., concurring). As discussed in this article, it is unclear whether the Roberts framework will be applied to nontestimonial statements consistently by lower courts. However, thus far two reviewing courts have concluded that the Roberts analysis is still valid for nontestimonial statements. State v. Rivera, 844 A.2d 191, 202 (Conn. 2004)("because this statement was nontestimonial in nature, application of the Roberts test remains appropriate"); State v. Blackstock, 598 S.E.2d 412 (N.C. App. 2004) (holding that a nontestimonial statement was still barred by Roberts).
Ohio v. Roberts, 448 U.S. 56 (1980).
Id., at 65.
Id., at 66.
Crawford, 124 S.Ct. at 1371.
The majority opinion was unanimous as to the result, and garnered a 7-2 vote as to overruling Roberts.
Crawford, 124 S.Ct. At 1374.
For example, 911 calls, statements to police officers responding to 911 calls and statements to private victim services organizations have been found to be "testimonial" and also "nontestimonial" by lower courts.
In People v. Moscat, 777 N.Y.S.2d 875, 2004 N.Y. Slip 24090 (N.Y. City Crim. Ct. 2004), a Bronx man was accused of threatening and punching his girlfriend, who refused to testify. Bronx Criminal Court Judge Ethan Greenberg issued an opinion on March 25, 2004, allowing in a 911 call believed to be of the girlfriend to be played to a jury without the defendant having an opportunity to cross-examine the statement in disregard of Crawford. His opinion appeared to be that 911calls are simply not testimonial under any circumstance. This judicial grandstanding ended up coming back to haunt Judge Greenberg and provide a lesson as to the rationale behind the Confrontation Clause. It turns out the caller was not the alleged victim and the call was made roughly nine hours after the incident. Prosecutors abandoned the case. See Sabrina Tavernise, Legal Precedent Doesn't Let Facts Stand in the Way, N.Y. Times, Nov. 26, 2004, p. A1. However, Moscat has been cited approvingly by other courts, and at least one court has extended the rationale to statements made to officers responding to 911 calls. People v. Aubrey, 2004 WL 2378400 (Cal.App. 4 Dist. Oct. 25, 2004).
U.S. v. Cromer, 2004 WL 271130 (November 30, 2004).
Crawford, 124 S.Ct. at 1374.
This interpretation was already suggested by at least one Wisconsin commentator. See Steven M. Biskupic, Hearsay and the Confrontation Clause, Wisconsin Lawyer, May 2004, at 19.
See note 12, supra.
Justice Scalia wrote that "judges, like other government officers, could not always be trusted to safeguard the rights of the people...". and that "[the Framers] were loath to leave too much discretion in judicial hands". Crawford, 124 S.Ct. at 1373.
This is referred to as the "forfeiture by wrongdoing" exception. United States v. Dhinsa, 243 F.3d 635, 651 (2nd. Cir. 2001). In order for the prosecution to admit testimony based on this exception they should be required to show "beyond a reasonable doubt" that the defendant caused the inability of the witness to testify. The prosecution should not be able to show that defendant's complicity through only the lower "preponderance of evidence standard" which has been applied by some courts. See White v. United States, 116 F.3d 903, 911-913 (App. D.C. 1997).


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