Criminal Defense Lawyer Confrontation Issues
It is safe to say that a criminal defense lawyer who does not understand and cannot apply common Confrontation Clause issues cannot provide the basic level of assistance that is guaranteed by the United States Constitution. It is beyond dispute that anyone who holds himself out as a criminal defense lawyer must absolutely be able to first, identify and second, combat the introduction of evidence that runs afoul of the Confrontation Clause. While the Confrontation Clause has been the focus of an enormous amount of criminal-defense-lawyer-generated litigation since the landmark 2004 United States Supreme Court decision of Crawford v. Washington, the core principles and protections that undergird the Confrontation Clause go back centuries and arise from well-documented origins in English common law. A basic understanding of this historical background often assists lawyers, students, and interested litigants in comprehending the legal principles that form twenty-first century American Confrontation Clause doctrine.
The Trial of Sir Walter Raleigh
While some historians have debated the precise applicability of Justice Scalia’s use of the trial of Raleigh in the Crawford decision, the factual rendition of the proceeding that Justice Scalia presented is helpful in understanding the blatant injustice that the Confrontation Clause is designed to prevent. A foundational principle in the Anglo-American system of justice is that the accused’s criminal defense lawyer must be allowed to challenge and test the strength and veracity of the accusations that form the basis of the case against his or her client. When live witnesses testify at trial, the criminal defense lawyer is allowed to question them, confront them with additional evidence that may alter the impact of their testimony, and impeach them by establishing deficiencies in recollection, perception, or even bias and facts that show a motivation on the part of the witness to be untruthful. Without the ability to confront live witnesses, the criminal defense lawyer is severely limited in his ability to establish any problems that may exist in relation to the evidence.
Raleigh’s trial in 1603 demonstrates the dangers and unfairness of using evidence to secure a criminal conviction when the evidence has not been subjected to cross-examination. Raleigh was charged with numerous counts of high treason. The case against Raleigh consisted entirely of hearsay. A letter, an ex-parte affidavit, and testimony that constituted hearsay within hearsay formed the bulk of the case against Raleigh. Raleigh’s primary complaint was that the supposed sworn confession of his alleged co-conspirator was introduced into evidence and used extensively by the prosecution as proof of his culpability for high treason. Understandably, Raleigh argued that basic fairness demanded that he be allowed to call his alleged co-conspirator as a witness and question him about the allegations contained in his ex-parte affidavit. The judges hearing the case denied the request, and after a short deliberation, the jury convicted Raleigh of the capital offense of high treason. Raleigh was later executed as the result of a trial in which he was not allowed to confront a single witness against him. The Crown’s case rested entirely upon allegations that were essentially unchallenged hearsay. Interestingly, years later, one of the trial judges who presided over the case candidly admitted that Raleigh’s trial had “injured and degraded the justice of England.” Again, while various legal historians have debated the issue, it is fairly well-established that Raleigh’s trial and other historical antecedents such as the Confrontation rights that existed in Roman law, at least in part, informed the Framers of the Constitution about the dangers of allowing a legal system in which principles of Confrontation are not required. It is evident that the Framers were well-aware of the dangers of unchallenged hearsay being admitted into evidence in criminal trials. In fact, the extent of their objection to such evidence being used to secure criminal convictions is evidenced in the codification of the Sixth Amendment to the United States Constitution.
Confrontation Clause of the Sixth Amendment
The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that “In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” This seemingly straightforward constitutional mandate has resulted in a constantly-evolving string of case law that continues to evolve up to the present day.
The last decade and a half of Confrontation Clause jurisprudence have been dominated by the United States Supreme Court decision in Crawford v. Washington. Prior to Crawford, Confrontation rights largely depended upon hearsay standards and various “indicia of reliability” (see the United States Supreme Court decision in Ohio v. Roberts). Roberts largely subjected Confrontation Clause issues to analysis under hearsay exceptions that could be deemed “firmly rooted hearsay exceptions” or those hearsay statements that had “particularized guarantees of trustworthiness.” The unfortunate, practical effect of Roberts was that it essentially created a system that made adherence to the hearsay rules and adherence to Roberts synonymous. Effectively, Roberts provided no additional Confrontation protections above and beyond those provided by the basic state and federal hearsay evidentiary rules already used in courtrooms across the nation. Crawford radically changed this long-held standard and reinvigorated Confrontation protections originating from the explicit text of the Constitution that had been diluted to the point that they provided no more protection than a rule of evidence created by statute.
The holding of Crawford rejected the reasoning and holding of Roberts by finding that Roberts’ dependence on hearsay standards and “reliability” did not satisfy the constitutional protections guaranteed by the Confrontation Clause. Crawford had an immediate and profound impact on the way evidence could be presented in criminal prosecutions. Now, a criminal defense lawyer can assert objections beyond the usual hearsay-related objections that actually have some teeth. Crawford raised the bar by requiring that an out-of-court “testimonial” statement could be used against an accused only if the hearsay declarant is either available to call as a witness at trial, or if shown to be unavailable, the witness’ statement was subject to cross-examination at a prior hearing.
Crawford’s Testimonial Standard
It is essential that the criminal defense lawyer seeking to limit hearsay-related evidence thoroughly understand the core concept at the heart of all Crawford-related analysis. A criminal defense lawyer who has done his or her due diligence and has studied the text of the decision will understand that Crawford changed the analysis to focus on the determination of which out-of-court statements are “testimonial” in nature and therefore trigger the Confrontation Clause. It bears repeating, the primary question for purposes of Crawford analysis is always whether the out-of-court statement that the prosecution seeks to use in court qualifies as a testimonial. It is also worth noting that only testimonial out-of-court statements are constitutionally inadmissible. Non-testimonial out-of-court statements are not inadmissible pursuant to Crawford. They may or may not be admissible based upon other rules of admissibility, but non-testimonial statements are beyond the reach of the Crawford decision. Crawford only precludes the introduction of out-of-court testimonial statements.
In explaining which statements are testimonial, the Court focused on whether the out-of-court declarant anticipated that the statement would be used to prosecute the accused. Because the Supreme Court decides cases as narrowly as possible and only reviews those issues presented before it, this simple standard was essentially the extent of the guidance provided by the decision. Therefore, the Crawford decision correctly did not thoroughly elaborate which statements would be deemed testimonial. It has, therefore, become necessary for the criminal defense lawyer making a Crawford objection to utilize the reasoning of Crawford and its progeny to successfully argue that an out-of-court statement is testimonial and thus inadmissible.
Beyond the basic definition of a testimonial statement, the Court also provided additional guidance to the criminal defense lawyer seeking to preclude the introduction of an out-of-court statement. The term “testimonial” applies “at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” While these examples appear to be self-evident as testimonial out-of-court statements, a number of other out-of-court statement scenarios have resulted in a seemingly never-ending line of Crawford-based decisions that all struggle with essentially the same issue – what is the definition of “testimonial”?
Davis and Hammon
Two years after Crawford announced the testimonial standard, the companion cases of Davis v. Washington and Hammon v. Indiana provided significant clarification as to what types of out-of-court statements constitute testimonial hearsay. The cases involved two types of statements: (1) statements made after the fact where the primary purpose is to establish or prove past events “potentially relevant to later criminal prosecution,” and (2) statements made to the police where the primary purpose is “to enable police assistance to meet an ongoing emergency.” In domestic violence cases, in particular, a criminal defense lawyer must understand the difference between the two.
Davis was a domestic violence prosecution where the victim called 911 immediately after being assaulted and while the perpetrator was still leaving the scene. At trial, the victim who made the 911 call did not appear as a witness. The responding officers testified as to what they believed to be fresh injuries on the victim. Critically, they could not testify as to the cause of the injuries. Due to the non-appearance of the victim, the prosecution was forced to rely on the portion of the 911 tape in which the victim identified the defendant as the cause of her injuries. The defendant was convicted, and his criminal defense lawyer appealed the case. The Washington Supreme Court affirmed the conviction by holding that the 911 call was non-testimonial. Undeterred, the defendant’s criminal defense lawyer then sought and was granted, the United States Supreme Court review of the case.
Justice Scalia, writing for the majority, found that the 911 tape did not constitute a testimonial statement, and therefore, its admission into evidence at trial did not violate the Confrontation Clause. In reaching the determination that the 911 tape was not testimonial, the Court found it significant that the victim was “speaking about events as they were actually happening, rather than describing past events.” The victim was “facing an ongoing emergency and seeking help against a bona fide physical threat.” The Court concluded that because the primary purpose of the victim’s statement “was to enable police assistance to meet an ongoing emergency,” she was not acting as a witness against the defendant for purposes of Confrontation Clause analysis. In other words, her primary purpose was to obtain help for an immediate and ongoing threat. It was not her primary purpose that her statement would be used to prove past events.
Hammon v. Indiana, also a domestic violence case, involved a victim who, at the request of a responding police officer, filled out a handwritten statement describing the assault and naming her husband as the assailant. At trial, the victim did not appear and testify. The prosecution was forced to rely upon her handwritten statement to prove their case. The police officer who spoke to the victim and witnessed her filling out the statement authenticated the statement and testified that the victim had stated to him orally the substance of her handwritten statement. Over the objection of the criminal defense lawyer, both the written statement and the police officer’s rendition of the victim’s oral hearsay statement were allowed into evidence. The defendant was convicted at trial, and the Indiana Supreme Court affirmed the conviction.
Unlike in Davis, the United States Supreme Court found that both the victim’s verbal statement and her written statement violated the defendant’s Confrontation Clause rights. Here, the victim’s interrogation – her written and oral statements – was “part of an investigation into possible criminal past conduct.” In other words, if the primary purpose of the interrogation was to “investigate a possible crime,” then the evidence gathered would be deemed testimonial. In such a situation, the Confrontation Clause requires that the defendant have an opportunity to cross-examine the declarant.
It is clear that the full contours of which out-of-court statements are testimonial and which are not remain to be established. Until then, it is incumbent upon the diligent criminal defense lawyer to read the Crawford line of cases carefully and to become acquainted with the various arguments and scenarios that surround the concept of testimonial statements. New case law is constantly being created in this area. Crawford-related litigation reaches the United States Supreme Court almost yearly. Crawford-related objections are fertile ground for the aggressive criminal defense lawyer who seeks to limit the prosecution’s evidence against his client. Each criminal defense lawyer at Oronoz & Ericsson is well-versed in Crawford related arguments. We have had significant success in litigating Crawford issues on behalf of our clients. If you find yourself or a loved one in a situation where law enforcement is seeking to put you or your loved one in jail or prison, call us immediately for help. Do not take your chances with an inadequate defense. Call Oronoz & Ericsson today.