Crawford: We say no way, hearsay

Crawford v. Washington, 124 S.Ct. 1354 (2004), Hearsay: Admissibility of testimonial hearsay against a criminal defendant

Players: Jeffrey Fisher of Seattle Washington for the defense - he also won Blakely in 2004. Opinion by Scalia; Rehnquist, O’Connor concur.

Facts: Victim allegedly attempted to rape Crawford’s wife. 124 S.Ct. at 1356. She and Crawford went to victim’s apartment to confront him. A fight ensued; Crawford stabbed Victim. Crawford said he thought Victim had a weapon. Wife gave a statement to the police that conceded that she didn’t see anything in Victim’s hands. Id. at 1357. At trial, Crawford asserts self-defense. Crawford’s wife can’t testify because of the marital privilege. Over defense objection, Wife’s statements to the police are admitted as evidence, and Crawford is convicted.

Issue(s): Does the Confrontation Clause of the Sixth Amendment prevent the use of testimonial hearsay evidence at trial, even if the hearsay falls within a "firmly rooted hearsay exception" or has "particularized guarantees of trustworthiness?" Id. at 1370.

Held: "Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in the development of hearsay law – as does [Ohio v. Roberts, 448 U.S. 56 (1989)], and as would an approach that exempted such statements from the Confrontation Clause altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." 124 S. Ct. at 1374 (emphases added). Conviction reversed.

Of Note: The next question is obviously, "what is testimonial evidence?" The Court declined to clearly define that term. 124 S. Ct. at 1374. It explained, however, that "[w]hatever 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." Id. Also, allocutions, guilty pleas, and other former statements admitting guilt are "testimonial." See 124 S. Ct. at 1372 (abrogating United States v. Aguilar, 29 F.3d 1018, 1021-23 (9th Cir. 2003)).

Courts of Appeal have already wrestled with the definition of "testimonial" evidence. Witness statements to officers are probably testimonial. See United States v. Neilsen, 371 F.3d 574 (2004). 911 calls, chemist reports, INS documents – all are probably "testimonial" in nature. Excited utterances to the police invited into the declarant’s home are not "testimonial" (at least according to the Ninth). See Leavitt v. Arave, __ F.3d. __, 2004 WL 1968649, *15 & n.22 (9th Cir.) amended Sept.7, 2004.

How to Use: Because hearsay is generally admissible in pretrial hearings, this is primarily a trial issue. Note, however, that after Blakely it may also come up in "sentencing trials." Keep an eye out for government witnesses who are likely to become "unavailable" – often because they assert the Fifth. Also, attack the government’s use of police reports or 911 calls – the "business records" exception should no longer work for these documents.

For Further Reading: R&W attorney’s have a copy of Fisher’s excellent short outline: Forget "Unreliable," Think "Testimonial": Framing Confrontation Arguments After Crawford v. Washington. (2004).

Steven Kalar, Senior Litigator, ND Cal