Crawford v. Washington: Confrontation Revolution
Neil P. Cohen and Donald F. Paine
On March 8, 2004, the U.S. Supreme Court decided Michael Crawford's appeal from a Washington State conviction for assault, 124 S.Ct. (2004), and totally revised the modern approach to the Confrontation Clause. Anyone handling a criminal case must now become familiar with a new conceptual framework for the admission of hearsay evidence by the prosecution.
The facts in Crawford v. Washington are not remarkable, but the analytic approach the court adopted is. The defendant Crawford stabbed a man who allegedly tried to rape defendant's wife, Sylvia Crawford. Defendant claimed self- defense. To rebut this, at trial the government introduced a statement by Sylvia (who did not testify) providing a version of the altercation that differed from her husband's. The defendant objected on Confrontation grounds. The United States Supreme Court reversed the conviction, holding Sylvia's tape recorded statement to police inadmissible because of the Sixth Amendment Confrontation Clause: "In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him."
Justice Scalia's opinion, joined by six other members of the court, treated the case as an opportunity to disapprove of Ohio v. Roberts, 448 U.S. 56 (1980), which had long provided the framework for analyzing Confrontation Clause cases. Scalia concisely expressed the court's holding:
Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny 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. We leave for another day any effort to spell out a comprehensive definition of 'testimonial.' Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, at a grand jury, or at a former trial; and to police interrogations.
The Crawford v. Washington holding can be summarized as follows:
The critical issue now is whether a statement is considered to be "testimonial" since non-testimonial evidence presents no Confrontation issue. In an effort to shed light on the meaning of this critical and elusive term, Scalia's Crawford opinion suggests that "an accuser who makes a formal statement to government officers" has made a testimonial statement, while someone who makes "a casual remark to an acquaintance" does not. The court also favorably quotes language from an amicus brief that says a statement is testimonial if "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use later at a trial." The court's other illustrations of testimonial proof include: statements taken by police officers during interrogations; and prior testimony at a preliminary hearing, grand jury, or trial. The court also mentions two hearsay exceptions that are not considered testimonial: business records and co-conspirator admissions. Justice Rehnquist's concurring opinion adds public records to this short list.
To illustrate these principles and the ambiguities of Crawford, consider how several Tennessee hearsay exceptions will fare under the decision. A prior identification under TRE 803(1.1) and recorded recollection under TRE 803(5) do not present any Confrontation problem because, by definition, the declarant must testify at the trial. Also, a footnote in Crawford hinted that the dying declaration may well be sufficiently unique that it is admissible despite the lack of cross examination.
By way of contrast, former testimony under TRE 804(b)(1) is certainly testimonial and is admissible under the Confrontation Clause only if the declarant is absent. This presents no practical issue since the former testimony exception itself requires unavailability.
Some hearsay exceptions are far more difficult to analyze. For example, the excited utterance of TRE 803(2) is illustrative of some disturbing uncertainties created by the Crawford court. It is quite possible that some excited utterances are testimonial and subject to the Confrontation Clause. For example, if a witness to a crime makes an excited utterance to a police officer at the scene of the crime, the statement may well be testimonial. But if the bystander makes the same excited utterance to another bystander at the scene, it is arguable that the statement is not testimonial. If this dichotomy occurs, it is an odd resolution because the statement to the officer may be more reliable than that to the bystander.
A similar issue is presented by a statement for purposes of medical diagnosis and treatment under TRE 803(4) or a statement of then existing mental, emotional or physical condition under TRE 803(3). Perhaps a routine statement about a person's physical condition to a friend or medical professional would be non-testimonial, but what about a child molestation victim who talks to emergency room personnel trained to obtain evidence for a possible criminal prosecution, perhaps even using a "rape kit" to gather and preserve evidence? Crawford raises the possibility that the latter may be so closely analogous to police interrogation (since arguably the medical personnel are acting as agents of the police) that the victim's statement becomes testimonial.
Business records also present an interesting set of issues. Scalia's opinion in Crawford cites business records, TRE 803(6), as not being testimonial. Justice Rehnquist adds official records, TRE 803(8), in his list of nontestimonial evidence. But could these statements be too sweeping? What about a chemist in a private laboratory who makes an analysis of a quantity of drugs and then writes a report that the government would like to introduce in a criminal trial? This report may qualify as a business record, but is it testimonial? If not, as suggested by Justice Scalia, the prosecution may introduce it without regard to the Confrontation Clause.
Crawford presents many other questions that will have to be resolved over time. For example, Crawford says that testimonial evidence is admissible only if the declarant is "unavailable," but does not define that term. Is it the same as the definition in TRE 804(a)? Also, surely the prosecution must make some effort to get the declarant to testify, but how heroic do those efforts have to be? Another important issue is whether Crawford is retroactive. Ordinarily the answer would be no, but the Crawford court actually suggested it was not changing the law, only redefining it. Finally, the usual rule is that a party cannot benefit from procuring a declarant's unavailability at trial, then using that unavailability to argue the declarant's hearsay statement may not be admitted at that trial. Surely subsequent decisions will apply this rule as an exception to Crawford's holding that unavailability is a prerequisite to the admissibility of testimonial government hearsay.
In sum, Crawford changes dramatically the way the Confrontation Clause is analyzed. The interesting issue is whether the results of the now-defunct Ohio v. Roberts approach will differ from those of the new model once ambiguities in Crawford get resolved in future cases.