Supreme Court of the United States,

In the case of the Supreme Court of the United States, Michael D. Crawford v. Washington. Michael Crawford was tried for assault and attempted murder for stabbing a man who was named, Kenneth Lee. Crawford stabbed Lee at his apartment on on August 5,1999. Police arrested petitioner later that night. Crawford claimed he had acted in self-defense when he believed Lee had picked up a weapon. Lee denied doing anything that might make Crawford believe he was trying to attack him. Michael Crawford contended that Lee had attempted to rape his wife, Sylvia. The police arrested him for the stabbing, and after giving both Michael and his wife, Sylvia, Miranda warnings, they interrogated both husband and wife twice. The statement Michael challenged under the Confrontation Clause came from a tape recorded interrogation of Sylvia. In her second interrogation, she gave a version of the fight between Michael and the alleged victim that at least appeared inconsistent with her husband’s self-defense claim. Sylvia’s tape recorded statement was introduced at trial against Michael even though he had no opportunity for cross examination. In reviewing the statement’s admission by the trial court, the Washington Court of Appeals and Washington Supreme Court applied slightly different tests grounded in the framework described by Ohio v. Roberts, a system that looks for “adequate ‘indicia of reliability.

However, the two courts reached opposite results. The court of appeals reversed the conviction, finding no “particularized guarantees of trustworthiness, while the Washington Supreme Court reinstated the conviction because it bore guarantees of trustworthiness. The United States Supreme Court granted certiorari. It held that admission of the statement violated the Confrontation Clause, which states that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. Generally, the right is to have a face to face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross examination during a trial. The Fourteenth Amendment makes the right to confrontation applicable to the states and not just the federal government. The right only applies to criminal prosecutions, not civil cases or other proceedings.

However, the Court developed a dramatically different theory for the reversal, which breathed new life into the Confrontation Clause, disrupted well established prosecution practices, and created a raft of unanswered questions. General Theory under the New View of the Confrontation Clause Justice Scalia, writing the opinion for seven members of the Supreme Court, concluded on the basis of history and references to the dictionary that the principal evil at which the Confrontation Clause was directed was the civil law mode of criminal procedure, and particularly its use of exparte examinations as evidence against the accused.This civil law procedure, with its roots on the European continent, of private examination by judicial officers stood in sharp contrast to the preferred English common law tradition of live testimony in court subject to adversarial testing. The Court then examined the text of the Confrontation Clause in the Sixth Amendment, which provides that in criminal prosecutions, “the accused shall enjoy the right to be confronted with the witnesses against him (emphasis added). The Court derived from that terminology a focus on “testimonial” statements. Witnesses against the accused indicated in the Court’s judgment that the clause was to be applied to those who bear testimony. Testimony, in turn, is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact. An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common law right of confrontation, thus reflects an especially acute concern with a specific type of out of court statement.The Court left “for another day” an effort to comprehensively define what are testimonial statements.

However, 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. For testimonial statements, the court erected a bold “STOP SIGN” in the absence of the cross examination, rejecting the reliability/trustworthiness analysis of Roberts: Where testimonial” statements are involved, they stated that they do not think the Framers meant to leave the Sixth Amendment’s protections to the vagaries of the rules of evidence, much less to amorphous notions of “reliability. Certainly none of the authorities discussed above acknowledges any general reliability exception to the common law rule. 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. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined. Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes. While deferring adoption of a comprehensive definition for “testimonial” statements, the Court noted some possible formulations of the “core class of ‘testimonial’ statements.” It set out three possible definitions: ex parte in court testimony or its functional equivalent that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross examine, or similar pretrial statements that declarant would reasonably expect to be used prosecutorially, extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; 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. These potential definitions differ on several dimensions. One is whether the statement must be a formal statement, as suggested in the second and narrowest definition. The final definition, which is the most general, abstract, and malleable, provides the opportunity for the broadest application. Because the Court did not pick among these contenders, let alone adopt a comprehensive definition of “testimonial,” there are many unanswered questions about the scope of coverage of Crawford and its “STOP SIGN” in the path of admission of “testimonial” statements. These questions, which are of critical importance, simply can not be answered clearly at the present time because the concept has no established precedent in existing law.

Although not adopting a comprehensive definition, the Court did give a few specific examples of statements that are “testimonial.” These include: “prior testimony at a preliminary hearing, before a grand jury, or at a former trial” and police interrogations, plea allocution showing existence of a conspiracy,” and presumably plea allocutions generally used to incriminate another. The Court gave the following example of statements that are not “testimonial”. An off-hand, overheard remark, which it suggested might be a good candidate for exclusion under the hearsay rule, bears little resemblance to the abuses that were the target of the Confrontation Clause. It also contrasted, “an accuser who makes a formal statement to government officers, which is clearly “testimonial, with a person who makes a casual remark to an acquaintance, which is not. Although hearsay exceptions do not match up with the concept of “testimonial” statements, the Court indicated that most, if not all, statements in two hearsay exceptions were not testimonial. It stated that business records and statements in furtherance of a conspiracy are “by their nature not testimonial.” On the other hand, the Court took a different view of excited utterances (also known as spontaneous declarations). It stated that its decision in White v. Illinois was arguably incorrect in that it involved a statement of a child victim to an investigating police officer admitted as a “spontaneous declaration.” The Court implied that the child’s statement might have been “testimonial” and doubted it would have been admissible at the time the Sixth Amendment was adopted because “to the extent the hearsay exception for spontaneous declarations existed at all, it required that the statements be made ‘immediately upon the hurt received, and before (the declarant) had time to devise or contrive any thing for her own advantage. The child’s statement was made 45 minutes after the alleged assault. The Court set out a limited number of exceptions where “testimonial” statements may be received. Given the clear “STOP SIGN,” Crawford places in the way of admitting “testimonial” statements and the absence of any balancing test or relatively forgiving search for reliability/trustworthiness as existed under Roberts, great pressure will be exerted either to exclude statements from the definition or to fit them within an exception. The Court noted four exceptions and suggested there might be a fifth.

First, “when the declarant appears for cross examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.” This constituted a separate route for satisfying confrontation before Crawford, and it continues to work even if the statement is considered “testimonial.” The most important cases here are California v. Green, and United States v. Owens. Owens is particularly expansive in ruling that very little more is required than that the prosecutor call the witness and that the witness “respond willingly to questions” in some form. Neither failures in memory, real or contrived, nor inadequate responses short of a blanket refusal to answer questions will render the opportunity to cross examine insufficient. Almost the only barriers to cross examination that are constitutionally significant are (a) the successful invocation by the witness of an evidentiary privilege or (b) excessive and improper judicial interference with such cross examination. Thus, as far as the United States Supreme Court is concerned, the Confrontation Clause gives total freedom to the states and Congress to admit hearsay in whatever form they wish if the prosecution calls the declarant to the stand and that person submits willingly to questioning.

The second exception recognized by Crawford is a well established method of satisfying the Confrontation Clause that the Court explicitly carried forward apparently without change. The confrontation right may be satisfied through a prior opportunity for cross examination rather than through cross examination at the current trial. However, the unavailability of the declarant, under a constitutionally defined standard, is specifically required, even if there has been prior cross examination by the defendant.

Third, the Court recognized that its concept of “forfeiture by wrongdoing” is consistent with the new approach. Under that concept which now is perhaps a slightly different form also constitutes a hearsay exception under the Federal Rule of Evidence 804(b)(6), the accused is held to have forfeited his or her confrontation right by, for example, killing a witness for the purpose of preventing that person’s testimony at trial. While the concept of “forfeiture by wrongdoing” as a constitutional principle applicable to confrontation issues is not new, it has not been fully defined. Given that “testimonial” statements will now often be excluding how narrowly or broadly this concept will be treated is of increased importance, and it will no doubt be given greater attention.

Fourth, Crawford does not bar the admission of out of court “testimonial” statements where they are used for a purpose other than establishing the truth of the matter asserted where they are not used for a hearsay purpose. The Court cited its decision in Tennessee v. Street as an example. In Street, a confession made by another participant in the crime was introduced by the prosecution, not to prove its contents, but to rebut the defendant’s claim that his statement was made in response to having that accomplice’s statement read to him by the sheriff and further claimed that he was directed to say “the same thing.” The sheriff denied both allegations. In this context, the Court reasoned that the written statement of the other participant was useful for a purpose other than its truth here, to aid the jury’s evaluation of the plausibility of the defendant’s claims and the sheriff ’s denial.

Fifth, the Court recognized that dying declarations, even dying declarations that are clearly “testimonial” under its definition, might be admissible on historical grounds. At the time the Constitution was adopted, the established practice appeared to admit such statements as an exception to the common law principle of confrontation, which under the Court’s analysis might mean it should stand as an exception to confrontation today as well. However, the Supreme Court stated that this exception, if it exists, is a very limited one. If this exception must be accepted on historical grounds, it is suigeneris.

A number of critical issues must be resolved, ultimately by the United States Supreme Court, but immediately by the lower state and federal courts. I will examine the general dimensions of several of these.
How Broadly or Narrowly is Police Questioning Included?
Perhaps the most obvious unsettled question is what type of statements to the police are covered by Crawford’s analysis? The Supreme Court did not tell us whether the circumstances in the case defined the outer boundaries of when police questioning/ interrogation was covered by the new analysis or whether that case was at the core of a broader range of statements to the police that were covered. It did not need to refine its definition of such interrogations because it concluded that what occurred in Crawford “qualified under any conceivable definition. These were “recorded statements, knowingly given in response to structured police questioning.
Several lower court cases have taken quite a narrow view of the type of police questioning that is covered, limiting Crawford’s analysis to statements obtained under circumstances closely similar to the interrogation of Sylvia Crawford. One of the most extreme is People v. Cage, where the California Court of Appeals found that highly accusatory statements made by an assault victim to the police when interviewed in the hospital emergency room were not “testimonial.” The test used by the court was one of analogy, did this conversation closely resemble the type of formal inquisitorial proceedings that occurred before examining magistrates who interrogated suspects and witnesses brought before them in hearings under English statutes enacted at the time of Queen Mary to determine bail and commitment? Since the statement in Cage did not, it was treated as non testimonial and admitted in the absence of confrontation. Similarly, an intermediate appellate court in Indiana drew a distinction between police questioning, which was not covered, and interrogation, which Crawford had clearly covered. Two panels of the court of appeals in Texas took completely different views of such police questioning, one treating it as non testimonial and the other explicitly disagreeing.
A panel of the North Carolina Court of Appeals took what might be seen as even a more extreme view. After the defendant had been forcibly subdued in a public police stand off/kidnapping, it treated statements by the victim to a police officer as non testimonial because they began spontaneously. Apparently by contrast, another panel of the North Carolina Court of Appeals found statements to police early in the investigation testimonial, and courts in other jurisdictions have found generally that statements during field investigations are similarly testimonial.

One could state an opinion as to how this conflict should be resolved, and my personal view of part of that resolution is that accussatory statements knowlingly made to the police should be treated as testimonial. Whether formally recorded or not, they are effectively on the record, and unless barred by some rule of evidence, they are destined for admission in court if helpful to the prosecution. However, the resolution of this issue must come from the United States Supreme Court.

Another question is whether the government must have a role in creating the statements. The conflict among the lower courts is undeniable present. An appellate court in Michigan ruled that a statement made to a private individual working for an agency that deals with child abuse, rather than a government agent, was decisive in rendering the statement non testimonial. An appellate court in California reached the opposite conclusion on very similar facts. Another major conflict exists as to the treatment of emergency calls to 9-1-1 numbers.These calls involve sub issues having to do with the treatment of excited utterances/spontaneous declarations; the distinction between statements made to public agencies and to private organizations conducting public functions; and issues dealing with whether the only perspective that matters is the appreciation of the witness/declarant that he or she is making a “testimonial” statement or whether the intention of the person receiving the statement is also considered. Two courts in New York took radically different views of whether 9-1-1 calls were covered by Crawford or whether they were generally outside the scope of the opinion. The New York court in People v. Moscat found that such a statement was not testimonial because it was not the equivalent of formal pretrial examination, but rather it was typically made by the victim as a cry for help for the purpose of saving her life. By contrast, another New York court in People v. Cortes, reached the opposite result. Rather than the caller’s perspective, it focused much more on the standard protocols followed in New York and most jurisdictions by the receiver of 9-1-1 calls that have the operator work through a series of questions designed to establish facts that would be significant to any prosecution that might result from the call.

In Ohio v. Roberts, Justice Blackman articulated a general standard of trustworthiness/reliability for all hearsay where the declarant was unavailable that created the now familiar term “firmly rooted hearsay exception,” which was an automatic route to satisfying the Confrontation Clause in many situations. As part of a summary, the opinion stated that the statement is admissible only if it bears adequate “indicia of reliability.” Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.

The Crawford Court did not indicate what, if any, part of that system will remain operable. One part of it is clearly gone. When statements are testimonial as defined by Crawford, the reliability/trustworthiness analysis is irrelevant, and only cross examination or one of the other limited exceptions described above avoid a “STOP SIGN” under the Confrontation Clause. The Roberts system is thus obliterated as to testimonial statements.
Two alternatives are possible for non testimonial statements in the future. Perhaps Roberts’ reliability/trustworthiness analysis remains the operative test as to all non testimonial statements. The other obvious competitor is that the Confrontation Clause has nothing whatsoever to say about non testimonial statements, and admissibility depends only on satisfying hearsay restrictions. Justice Scalia, in his opinion in Crawford, entertained the possibility of resolving this uncertainty and revising the Confrontation Clause to apply only to testimonial statements, leaving the remainder to regulation by hearsay law. He observed that this proposal had been in fact considered and rejected in White, but also noted that their analysis in this case cast doubt on that holding.

Resolving the question will not have a huge impact because the Confrontation Clause was generally easily satisfied under the Roberts test as to most admissible hearsay, and indeed, admissibility under Roberts’ reliability/trustworthiness analysis was most often decided automatically when the statement met a broadly accepted and long established firmly rooted hearsay exception. How this pathway to admissibility is defined will matter, however, when non testimonial hearsay that is highly unreliable and fits no exception is offered. Examples could easily be imagined as to statements by children in child sexual abuse cases. Some of these statements will be considered testimonial, but where the dividing line will be located in statements made by children to family members, doctors, school teachers, social workers, and police officers is yet to be determined. In states that have a broad catchall hearsay exception or a similarly general hearsay exception that applies to children, one can imagine that some of these statements might be found lacking in reliability under Roberts, particularly given that under Idaho v. Wright, reliability/trustworthiness may not be proved by corroboration of the truth of the statement through external evidence. Therefore, whether the “Old System” still applies has real significance.

Lastly, the Crawford case has clearly had a substantial impact on criminal prosecutions by giving teeth to the Confrontation Clause in several frequently encountered and particularly important areas. Statements made by co-participants in crime to authorities during police interrogation can no longer be received against a criminal defendant. Such statements are now clearly excluded, absent limited exceptions. In the areas covered or arguably covered by Crawford, courts are treating Confrontation Clause claims with a seriousness not seen in years. In the area of domestic violence prosecutions, the impact of Crawford may be substantial, but the full ramifications of the decision will take some time to be resolved. In these cases, frequently the complaining witness who is usually the wife or girlfriend, is unavailable at the time of trial. Which was allowable in the Crawford case because, At trial, Mrs. Crawford could not be compelled to testify by the state, since under Washington's spousal privilege law, a spouse cannot testify in court without the defendant spouse's consent (except when a spouse is a complainant).

In many jurisdictions, prosecutors have looked for ways to prosecute these crimes when the alleged victim is absent, and hearsay statements made in 9-1-1 calls and to emergency and medical personnel and investigating officers have been frequently used as an effective alternative method of proof. Whether those alternatives will remain at all viable will likely depend on how broadly testimonial statements are defined and how liberally forfeiture through wrongdoing is interpreted. Crawford, and the decisions following it, also radically changed the handling of domestic violence cases by curtailing evidence based prosecution, a common practice allowing the accused to be prosecuted without the participation of their accusers in the criminal court process. Evidence based prosecution relies heavily on admission of statements under hearsay exceptions to reproduce the evidentiary effect of a victim testifying in court. The Crawford Court's decision renders most of these statements inadmissible without the accuser coming to court and testifying against the person he is accusing.