Understanding the Confrontation Clause

In 2004, the Supreme Court released its opinion in Crawford v. Washington, 541 U.S. 36 (2004). Crawford dramatically changed criminal law for the defense by making the use of out of court testimonial statements by unavailable witnesses inadmissible and ensuring a defendant’s right to confront those witnesses against him. With Crawford, the Court changed the standard for determining when hearsay statements in criminal cases are admissible under the Confrontation Clause of the Sixth Amendment.

Testimonial Statements in Criminal Trials

Crawford applies only to those testimonial statements. While Justice Scalia writing for the majority refrained from fully defining the term “testimonial,” he did provide several proposed definitions of testimonial statements.
Scalia included as testimonial:

• prior testimony
• police interrogations
• affidavits
• pre-trial statements expected to be used for prosecution
• depositions
• confessions
• statements made in anticipation of trial

There are a number of out-of-court statements that do not implicate the Confrontation Clause and thus were not changed by Crawford.
These include:

• statements not offered for the truth of the matter asserted
• statements made by someone who does testify
• statements by an unavailable witness where the defendant had the chance to cross-examine at a prior hearing
• statements presented by the defense (the State does not have the same right under the Confrontation Clause that the defendant possesses)
• the defendant’s statements
• statements furthering a conspiracy.

The Years Following Crawford: Where are we more than 10 years later?

Criminal Evidence: 911 Calls and Reports to Police

Two years after Crawford, the Court examined these types of statements in Davis v. Washington/Hammon v. Indiana, 547 U.S. 813 (2006). The Court determined that statements to police are testimonial when circumstances objectively show there is not an ongoing emergency and that the “primary purpose” of the statement or interrogation is to establish or prove past events that may be relevant to a future criminal proceeding. Davis, 547 U.S. at 822. If the primary purpose of a statement or interrogation is to allow police to assist in an ongoing emergency, then it is not testimonial. Id. A single statement or interaction with police can contain both testimonial and non-testimonial statements. Id. at 829.

In 2011, the Court examined a statement to police by an injured victim who was identifying the assailant. In Michigan v. Bryant, 562 U.S. 344 (2011), the Court held that when the primary purpose for a statement is to enable police to respond to an current emergency rather than a past event, the statement is non-testimonial. In making its determination as to the primary purpose of the police interrogation, the Court looked at how every participant would reasonably understand their statements, actions and the circumstances.

Criminal Evidence: Lab Reports

In 2009, the Supreme Court put a stop to the use of certificates of analysis with its decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). The Court said that certificates which report the results of forensic testing are testimonial. Id. at 328-29. The Court went on to explain that ordinarily records kept in the ordinary course of business are admissible even though they are hearsay, but not “if the regularly conducted business … is the production of evidence at trial.” Id. at 321.

Criminal Evidence: Forfeiture by Wrongdoing

Forfeiture by wrongdoing is a firmly established exception to the hearsay rule and still admissible following Crawford. In Giles v. California, 554 U.S. 353 (2008), the Court stated that to be admissible, the government must show that the witness is unavailable because of the defendant’s actions and that the witness’s absence was intended by the defendant to prevent the witness from testifying at trial. Id. at 359.

Be on the Lookout! Emerging Issues in the Crawford Arena

Criminal Evidence: Autopsy Reports

The lower courts are split as to whether an autopsy report is testimonial. Ultimately the decision may come down to whether the report was prepared because of neutral obligation to establish a cause of death or for law enforcement purposes. Many courts are making the determination on a case-by-case basis when it comes to autopsy reports. See, Wood v. State, 299 S.W.3d 200 (Tex. App.—Eastland 2009).

Criminal Evidence: Statements to SANE and like professionals

The lower courts are also split as to whether a statement to a sexual assault nurse examiner (or a social worker or another similar professional) is for the primary purpose of seeking medical treatment or criminal investigation. Like autopsy reports, this may come down to a case-by-case basis.

This is a tool that prosecutors often abuse in sexual assault of a child cases. Watch for good Hearsay objections, because the predicate for medical diagnosis is poorly or disingenuously laid. Also, read the SANE report very carefully. The form likely contains information related to communication with law enforcement. This is the kind of evidence that you need to bring out to show these statements are recorded in contemplation of litigation. Don’t forget the Due Process objections here, too.

Criminal Evidence: Statements to Private Citizens

Generally, statements made to people with no relationship to law enforcement are not testimonial. Some lower courts have made the determination though that if the statement was made with the intent that it be delivered to law enforcement or used in prosecution that it can be testimonial. See, State v. Sanchez, 177 P.3d 444 (Mont. 2008).

Do not let statements to a CPS worker slip by. Regardless of how much the prosecutor and the Department try to pretend CPS is not law enforcement, the truth is CPS is an arm of the police. Get on the record that CPS case workers that are assigned sexual abuse cases have meetings (called “staffings”) with detectives and prosecutors. This goes for the Child Advocacy Center workers, too. Everyone is on “Team Screw Your Client,” so don’t let them act like strangers for confrontation issues.

How to Litigate a Confrontation Clause Issue

Break down the statement and determine whether the statement is testimonial. Remember, within a single statement there can be both testimonial and non-testimonial statements. Then determine whether the declarant is unavailable and whether any hearsay exception is applicable. It may be helpful to look beyond your jurisdiction for guidance. There is significant conflict among the lower courts on these issues and helpful cases may exist elsewhere. Preservation of the issue is key. Object under both the Confrontation Clause and the rules of hearsay. Make a record to support your assertion that a statement is testimonial. If a Confrontation Clause objection is overruled, you can still fight the admission of a statement through a Due Process argument.

Tips for Litigation of Confrontation Issues

• Break the statement down for the court, and articulate specifically how some (or all) of the statement is testimonial
• Make a clear record of the declarant’s unavailability. Don’t just argue the point! Put on evidence!
• Hearsay objections DO NOT cover Confrontation Clause Errors!
• Include Due Process objection in your Confrontation Clause Objection
• Object early and often! Every time you get a chance OBJECT!

Friends Don’t Let Friends Try Cases AloneI don’t care what kind of budget you are one. Get someone to sit second chair with you. I love trial. Trial is the reason I am a criminal defense attorney. Call me and I will help all that I can.

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