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Testimonial Hearsay: The Supreme Court's Radical Revisision in Crawford v. Washington

by Joel Harvey Slomsky

Summer 2005, Vol. 68, No.2

On March 8, 2004, the United States Supreme Court dramatically altered the legal landscape by limiting the kind of admissible hearsay that complies with the Sixth Amendment guarantee that in all criminal prosecutions the accused shall enjoy the right to be confronted with witnesses against him.

In Crawford v. Washington, 541 U.S. 36 (2004), the court overruled in part Ohio v. Roberts, 448 U.S. 56 (1980), its 1980 decision that held that the Confrontation Clause does not bar admission of an unavailable witness’ hearsay statement against a defendant if the statement bears adequate indicia of reliability or particularized guarantees of trustworthiness.

In Crawford, the offending evidence offered by the prosecution at the defendant’s trial for stabbing a man who tried to rape his wife was the wife’s station house tape-recorded statement to the police describing the stabbing. The wife did not testify at trial and was deemed “unavailable” because of the marital privilege. The prosecution was permitted by the trial judge to introduce her statement because it bore particularized guarantees of trustworthiness. The Supreme Court rejected this test and held that the use of her statement violated the Confrontation Clause, which now will require a prior opportunity by the defendant to cross-examine an unavailable witness, regardless of whether the statement is deemed reliable by the court.

The court held in Crawford that the “reliability” test is too malleable and subjective a standard to protect against confrontation violations. At a minimum, where “testimonial” evidence is at issue, the Sixth Amendment demands that before such evidence is admissible, there must be both present unavailability of the witness and a prior opportunity for cross-examination. Ex parte “testimonial” evidence, untested by cross-examination, no longer complies with constitutional requirements even if a judge believes it to be reliable.

The Supreme Court stated in Crawford that it would leave for another day the effort to spell out a comprehensive definition of “testimonial” evidence. The court did opine, however, that at a minimum “testimonial” evidence includes prior testimony at a preliminary hearing or trial that a defendant was unable to cross-examine, testimony before a grand jury, and custodial police interrogations. “Testimonial” also encompasses any statement made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. An example of a non-testimonial statement would be an off-hand, overheard remark. The use of non-testimonial hearsay by the prosecution at a court proceeding would not violate the Confrontation Clause.

The net effect of the Crawford decision on a criminal case is that except for certain exceptions to the hearsay rule, such as business records or statements in furtherance of a conspiracy, every kind of hearsay, whether it be oral or written statements, documentary evidence or any other form of out-of-court evidence offered by the prosecution, should be subject to a rigorous Crawford analysis. Over the past year, as courts attempt to establish uniform law to guide future cases, various forms of hearsay have been tested against the Crawford ruling to determine whether they are “testimonial” and subject to exclusion.

Application of the Crawford Decision
Some examples follow of how courts have grappled with the minimum requirements of the Confrontation Clause described in Crawford. One exception to the hearsay rule extensively discussed in court decisions is the “excited utterance” exception. Emergency 911 calls usually qualify for admission at a trial as “excited utterances.”

In one opinion, People v. Moscat, 777 N.Y.S.2d 875 (N.Y. City Crim. Ct. 2004), a New York court held that a 911 call for help was not testimonial in nature as the term “testimonial” is described in the examples provided in Crawford. Mostly, 911 calls are initiated by the victim and are not the product of a police investigation seeking evidence against a suspect. They are usually motivated by an urgent desire to be rescued from imminent danger and not by a need to create evidence for a trial. Consequently, they are not “testimonial.”

In another case, State v. Powers, 99 P.3d 1262 (Wash. Ct. of App. 2004), however, a court in in the state of Washington held that a 911 call made to assist authorities in the apprehension and prosecution of a suspect rather than for help was “testimonial” and therefore inadmissible under Crawford.

In Commonwealth v. Gray, 867 A.2d 560 (2005), the Pennsylvania Superior Court held that excited utterances made by the daughter of an assault victim were not testimonial and not barred from use by the Confrontation Clause. In the Gray case, officers testified that when they exited their patrol cars, the daughter approached them and stated that she had been assaulted, her mother had been stabbed, and that the perpetrator remained upstairs with her mother. The court noted that these were unsolicited statements and not a product of interrogation. Moreover, the daughter did not reasonably expect at the time that her statements would have been used later in court. They were not made in contemplation of prosecution. It was more likely that the statements were given in order to have the police intervene in the alleged assault on her mother.

Many courts are divided over whether “exited utterances” are testimonial in nature. See Stancil v. United States, 866 A.2d 799 (D.C. 2005); Lopez v. State, 888 So. 2nd 693 (Fla. Dist. Ct. App. 2004). Compare Leavitt v. Aave, 383 F.3d 809, 830-31 (pth Cir. 2004); _Commonwealth v. Eichele, 66 Pa. D & C 4th 460 (Ct. of Common Pleas, Carbon Co. 2004); Hammon v. State, 809 N.E. 2d 945 (Ind. App. 2004); Fowler v. State, 809 N.E. 2d 960 (Ind. Ct. App. 2004); People v. Corella, 18 Cal. Rptr. 3d 770 (Cal. Ct. App. 2004). The District of Columbia Court of Appeals, in Stancil v. United States, held that statements made to officers who respond to emergency calls for help and then secure a crime scene may be “testimonial” if they are a product of a declarant’s knowing responses to structured questioning in an investigative environment. As the court noted in Stancil: “Some excited utterances are testimonial, and others are not, depending on the circumstances in which the particular statement was made. Especially in light of the apparent expansion of the kinds of statements which fall under the rubric of the hearsay exception for excited utterances, we conclude that such utterances cannot automatically be exempted from the strictures of Crawford.” Id. at 809.

Recently, two courts came to opposite conclusions on whether “dying declarations” were “testimonial” and therefore violated the Confrontation Clause, United States v. Jordan, 2005 WL 513501 (D. Colo., March 3, 2005); People v. Durio, 2005 WL 545148 (N.Y. Sup.Ct., Kings County, March 2, 2005). In both cases the facts were quite similar: A dying victim made statements to a law enforcement officer identifying the defendant as the assailant.

In the Jordan desicion, a fedreal court in Colorado held that a dying declaration is covered by the prohibition of Crawford. The court noted “that there is no rationale in Crawford or otherwise under which dying declarations should be treated differently than any other testimonial statement.”

In the Durio deicision, a court in New York rejected this analysis and upheld the admission of a dying declaration in the overwhelming interest of public policy. The court also based its decision on the notion that in Crawford the Supreme Court recognized that the Sixth Amendment right of confrontation is not absolute despite the dying declaration being made in response to police questioning and being testimonial in nature. The court held it was properly admitted at trial.

Another area of Sixth Amendment concern involves “tender years” statutes promulgated in many states. These acts permit a social worker or other third party to interview a child alleging sexual abuse or other serious crimes for the specific purpose of obtaining evidence for use at a trial. They permit the third party to repeat at trial the child complainant’s hearsay statement without requiring the child to testify if a court finds after examining the child that the statement exhibits sufficient indicia of reliability. A court in Maryland held that statements testified to by a social worker were “testimonial” because children were interviewed for the express purpose of enabling the social worker, who was acting in conjunction with the police, to develop the children’s testimony at trial. The testimony was inadmissible unless the defendant had the prior opportunity to cross-examine the children and the children complainants were unavailable to testify. State v. Snowden, 867 A.2d 314 (Md. Ct. of Appeals 2005); see also State v. Mack, 101 P.3d 349 (Or. 2004).

Pennsylvania also has a “tender years” statute that allows out-of-court statements made by children 12 years of age or younger to be admissible if “the court finds, in an in-camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability...” 42 Pa.C.S.A. Section 5985.1. This provision may be subject to a Crawford analysis.

The Third Circuit United States v. Hendricks, 395 F.3d 173 (3d. Cir. 2005), applied the Crawford test to conversations intercepted during lawful court-authorized wiretaps. The Third Circuit held that these monitored conversations are not “testimonial” under the Crawford ruling. The conversations intercepted were not the product of police interrogation and were more akin to a casual remark to an acquaintance.

Statements made during the course and in furtherance of a conspiracy are non-testimonial in nature and the Confrontation Clause does not bar their admission. The court in Hendricks remanded the case to the District Court, however, for a determination of whether each of the intercepted conversations qualified as co-conspirator hearsay admissible under Federal Rule of Evidence 80l(d)(2)(e). The District Court had failed to engage in this analysis because of its reliance on Crawford.

Conclusion
After Crawford and its federal and state court progeny, it is evident that the outcome of each Sixth Amendment challenge to hearsay evidence will be based upon a careful examination of the circumstances surrounding how the hearsay was obtained and the purpose behind its procurement. Was the hearsay elicited to assist in the identification of the defendant as the perpetrator of the crime or for some unrelated reason? Was the hearsay a product of questioning initiated by criminal investigators? Was the hearsay elicited with an eye toward use in litigation? After Crawford, these and other questions and circumstances will be operative in determining whether the hearsay is “testimonial.” If it is testimonial, unless the defendant had a prior opportunity to cross-examine the unavailable declarant, its use against a defendant now will violate the Confrontation Clause.