THE END OF HEARSAY IN CRIMINAL TRIALS?
The Potential and Uncertainty of Crawford v. Washington
September, 2008
By Al Menaster
Los Angeles County Public Defender’s Appellate Branch
In 2004, the United States Supreme Court issued its opinion in Crawford v.
Washington (2004) 541 U.S. 36, 124 S.Ct. 1354, in which it held, “Where testimonial
evidence is at issue, however, the Sixth Amendment demands what the common law
required: unavailability and a prior opportunity for cross-examination.” (Id. at p. 1374.)
This means that many forms of hearsay offered by the prosecution which previously came
into evidence under California law are now barred under the federal Confrontation Clause.
Precisely which hearsay exceptions are gone and the full scope of what “testimonial” means
is unclear.
Crawford is confusing, complex, and poorly understood. In the years since Crawford
was issued, we have been confronted with a staggering array of issues. I am convinced we
will be addressing the implications of Crawford for many years to come. But I thought it
might be helpful to write out some of the ideas we have had so far.1/ Given the complexity
of the issues raised by Crawford and the relatively brief time since its issuance, I recognize
that our ideas so far are very rudimentary and will be expanded upon as time goes on. Given
that, I hope this will help some of you begin.
Justice Scalia’s opinion in Crawford (joined by six other members of the court) is very
didactic and esoteric. This is good and bad. It prevents the prosecution from quoting clear
sentences rejecting your arguments. But it also prevents you from quoting clear sentences
rejecting their arguments. The initial portion of Crawford is an extended historical
discussion about the Confrontation Clause. I am sure lawyers will parse portions of this
discussion and attempt to use it to show that the hearsay at issue in their cases is admissible
or inadmissible. The problem is that it is not clear whether Scalia is actually trying to
address any specific issues. In fact, he tells us he is not doing so. I will point out favorable
1/
When I say “we” have had so far, I mean “we.” I have had the benefit of extensive
discussions (some might call them arguments) on various Crawford topics with the other
members of the Appellate Branch of the Los Angeles County Public Defender’s Office. I
have also had the benefit of the discussions on CLARANET, CPDA’s listserve, where so
many folks have struggled with each other and me to understand Crawford and try to turn it
to our advantage. Many people have called me or e-mailed me with their specific Crawford
issues. I want to take credit only for writing down some of these ideas in a single article.
and unfavorable portions of Crawford, but be aware that when you cite favorable portions,
the prosecution may well argue these are just historical descriptions, not intended to actually
address the admissibility of any specific hearsay exception. Of course, you get to make the
same arguments against the unfavorable portions. Some look at the historical examples
Scalia gives and attempt to limit (or expand) the scope of Crawford on the basis of such
examples. This may ultimately prove a valid approach to Crawford, but it is simply not clear
that this kind of analysis is correct or that Scalia intended such an approach.
Scalia repeatedly says that confrontation is satisfied only by cross-examination.
Notably, he rejects any claim that there can somehow be reliability by any means short of
actual cross-examination. Here is what Scalia says:
Our cases have thus remained faithful to the Framers’ understanding:
Testimonial statements of witnesses absent from trial have been admitted only
where the declarant is unavailable, and only where the defendant has had a
prior opportunity to cross-examine. (Id. at p. 1369.)
The Constitution prescribes a procedure for determining the reliability of
testimony in criminal trials, and we, no less than the state courts, lack authority
to replace it with one of our own devising. (Id. at p. 1373.)
Dispensing with confrontation because testimony is obviously reliable is akin
to dispensing with jury trial because a defendant is obviously guilty. This is
not what the Sixth Amendment prescribes. (Id. at p. 1371.)
Where testimonial statements are at issue, the only indicium of reliability
sufficient to satisfy constitutional demands is the one the Constitution actually
prescribes. (Id. at p. 1374.)
Scalia states the holding in a single sentence (the one I previously quoted): “Where
testimonial evidence is at issue, however, the Sixth Amendment demands what the common
law required: unavailability and a prior opportunity for cross-examination.” (Id. at p. 1374.)
The court did not explain what “testimonial” means. In fact, Scalia specifically says, “We
leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’”
(Ibid.) In Crawford, all Scalia does say about what “testimonial” means is in a very confusing
sentence, one quoted in the press in a misleading way. Here is Scalia’s sentence: “Whatever
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.” (Ibid.)
This sentence appears to bar admission of hearsay where the witness previously
testified at a preliminary hearing, a grand jury, or a former trial. In context, it is clear that
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Scalia is talking about unconfronted testimony at one of these proceedings. The Supreme
Court has held that the federal constitution requires only a probable cause hearing before
trial, a hearing where the defendant is excluded and so are you. That is the “preliminary”
hearing Scalia means.
In fact, Scalia is saying that statements made at preliminary hearings, grand jury
proceedings, or former trials are testimonial. But what, precisely, does “testimonial” mean?
Scalia declined to answer that question in Crawford itself. Two years later, in Davis v.
Washington, supra, __ U.S. ___, 126 S.Ct. 2266, Scalia attempts to define “testimonial,” at
least to some extent.
The discussion by the court is crucial to understand what “testimonial” means. The
court distinguishes between statements describing an ongoing emergency and statements
describing the facts of a past crime:
“The question before us in Davis, then, is whether, objectively considered, the
interrogation that took place in the course of the 911 call produced testimonial
statements. When we said in Crawford, supra, at 53, that ‘interrogations by law
enforcement officers fall squarely within [the] class’ of testimonial hearsay, we
had immediately in mind (for that was the case before us) interrogations solely
directed at establishing the facts of a past crime, in order to identify (or provide
evidence to convict) the perpetrator. The product of such interrogation,
whether reduced to a writing signed by the declarant or embedded in the
memory (and perhaps notes) of the interrogating officer, is testimonial.”
(Davis v. Washington, supra, __ U.S. ___, 126 S.Ct. 2266, 2276.)
The court held that part of the 911 call in Davis was nontestimonial: “We conclude
from all this that the circumstances of McCottry’s interrogation objectively indicate its
primary purpose was to enable police assistance to meet an ongoing emergency.” (Davis
v. Washington, supra, __ U.S. ___, 126 S.Ct. 2266, 2277.)
However, even if part of a 911 call is admissible as nontestimonial, that does not mean
that the entire conversation is admissible:
“This is not to say that a conversation which begins as an interrogation to
determine the need for emergency assistance cannot, as the Indiana Supreme
Court put it, ‘evolve into testimonial statements,’ 829 N. E. 2d, at 457, once
that purpose has been achieved. In this case, for example, after the operator
gained the information needed to address the exigency of the moment, the
emergency appears to have ended (when Davis drove away from the
premises). The operator then told McCottry to be quiet, and proceeded to pose
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a battery of questions. It could readily be maintained that, from that point on,
McCottry’s statements were testimonial, not unlike the ‘structured police
questioning’ that occurred in Crawford, 541 U. S., at 53, n. 4. This presents no
great problem. Just as, for Fifth Amendment purposes, ‘police officers can and
will distinguish almost instinctively between questions necessary to secure
their own safety or the safety of the public and questions designed solely to
elicit testimonial evidence from a suspect,’ New York v. Quarles, 467 U. S.
649, 658–659 (1984) , trial courts will recognize the point at which, for Sixth
Amendment purposes, statements in response to interrogations become
testimonial. Through in limine procedure, they should redact or exclude the
portions of any statement that have become testimonial, as they do, for
example, with unduly prejudicial portions of otherwise admissible evidence.
Davis’s jury did not hear the complete 911 call, although it may well have
heard some testimonial portions. We were asked to classify only McCottry’s
early statements identifying Davis as her assailant, and we agree with the
Washington Supreme Court that they were not testimonial. That court also
concluded that, even if later parts of the call were testimonial, their admission
was harmless beyond a reasonable doubt. Davis does not challenge that
holding, and we therefore assume it to be correct.” (Davis v. Washington,
supra, __ U.S. ___, 126 S.Ct. 2266, 2277-2278.)
In contrast, the court articulates a rule which almost always will exclude admission
of statements taken by the police after the police respond to the call:
“Determining the testimonial or nontestimonial character of the statements that
were the product of the interrogation in Hammon is a much easier task, since
they were not much different from the statements we found to be testimonial
in Crawford. It is entirely clear from the circumstances that the interrogation
was part of an investigation into possibly criminal past conduct—as, indeed,
the testifying officer expressly acknowledged, App. in No. 05–5705, at 25, 32,
34. There was no emergency in progress; the interrogating officer testified that
he had heard no arguments or crashing and saw no one throw or break
anything, id., at 25. When the officers first arrived, Amy told them that things
were fine, id., at 14, and there was no immediate threat to her person. When
the officer questioned Amy for the second time, and elicited the challenged
statements, he was not seeking to determine (as in Davis) ‘what is happening,’
but rather ‘what happened.’ Objectively viewed, the primary, if not indeed the
sole, purpose of the interrogation was to investigate a possible crime—which
is, of course, precisely what the officer should have done.” (Davis v.
Washington, supra, __ U.S. ___, 126 S.Ct. 2266, 2278.)
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Let me emphasize the distinction the court is making. The ultimate issue is whether,
viewed objectively, the statement describes “what is happening,” or “what happened.” The
former can be a description of an event in progress and would thus be nontestimonial. The
latter is testimonial. It really is as simple as that.
Many courts and prosecutors have tried to claim that the interview at issue was not
“formal,” and the resulting statement was thus not testimonial. There is some excellent
language here on this issue: formality really is irrelevant:
“It is true that the Crawford interrogation was more formal. It followed a
Miranda warning, was tape-recorded, and took place at the station house, see
541 U. S., at 53, n. 4. While these features certainly strengthened the
statements’ testimonial aspect—made it more objectively apparent, that is, that
the purpose of the exercise was to nail down the truth about past criminal
events—none was essential to the point. It was formal enough that Amy’s
interrogation was conducted in a separate room, away from her husband (who
tried to intervene), with the officer receiving her replies for use in his
‘investigat[ion].’ App. in No. 05–5705, at 34. What we called the ‘striking
resemblance’ of the Crawford statement to civil-law ex parte examinations,
541 U. S., at 52, is shared by Amy’s statement here. Both declarants were
actively separated from the defendant—officers forcibly prevented Hershel
from participating in the interrogation. Both statements deliberately recounted,
in response to police questioning, how potentially criminal past events began
and progressed. And both took place some time after the events described were
over. Such statements under official interrogation are an obvious substitute for
live testimony, because they do precisely what a witness does on direct
examination; they are inherently testimonial.” (Davis v. Washington, supra,
__ U.S. ___, 126 S.Ct. 2266, 2278.)
Some courts found that statements given during the initial inquiry by the police were
nontestimonial. We win this issue as well: “But in cases like this one, where Amy’s
statements were neither a cry for help nor the provision of information enabling officers
immediately to end a threatening situation, the fact that they were given at an alleged crime
scene and were ‘initial inquiries’ is immaterial.” (Davis v. Washington, supra, __ U.S. ___,
126 S.Ct. 2266, 2279.)
Some courts and prosecutors have tried to claim that only interrogations trigger
testimonial statements, viewing interrogation as some very narrow event. The court rejects
such a view:
5
“Our holding refers to interrogations because, as explained below, the
statements in the cases presently before us are the products of
interrogations—which in some circumstances tend to generate testimonial
responses. This is not to imply, however, that statements made in the absence
of any interrogation are necessarily nontestimonial. The Framers were no more
willing to exempt from cross-examination volunteered testimony or answers
to open-ended questions than they were to exempt answers to detailed
interrogation. (Part of the evidence against Sir Walter Raleigh was a letter
from Lord Cobham that was plainly not the result of sustained questioning.
Raleigh’s Case, 2 How. St. Tr. 1, 27 (1603).) And of course even when
interrogation exists, it is in the final analysis the declarant’s statements, not the
interrogator’s questions, that the Confrontation Clause requires us to evaluate.
(Fn. 1.)” (Davis v. Washington, supra, __ U.S. ___, 126 S.Ct. 2266, 2274.)
Can any claim be made that 911 operators are not police agents? The court leaves this
door open, though not open very wide: “If 911 operators are not themselves law enforcement
officers, they may at least be agents of law enforcement when they conduct interrogations
of 911 callers. For purposes of this opinion (and without deciding the point), we consider
their acts to be acts of the police. As in Crawford v. Washington, 541 U. S. 36 (2004),
therefore, our holding today makes it unnecessary to consider whether and when statements
made to someone other than law enforcement personnel are ‘testimonial.’” (Davis v.
Washington, supra, __ U.S. ___, 126 S.Ct. 2266, 2274.)
To restate this decision, the court adopts an objective test in determining whether a
statement is testimonial or not. If the primary purpose of the statement is to deal with an
ongoing emergency, and the statement describes “what is happening,” the statement is
nontestimonial and is thus not barred by the Confrontation Clause. However, where the
circumstances objectively indicate that there is no ongoing emergency and the primary
purpose of the interrogation is to establish past events potentially relevant to a criminal
prosecution, the statement is testimonial. That is, describing “what happened” is testimonial.
Formality does not matter. “Interrogation” just means questioning. It does not matter if the
contact was an initial inquiry.
In most of our cases, everything is testimonial. Only statements which call for help
and describe an ongoing emergency situation can qualify as nontestimonial. If the victim
calls for help during a fight, the statement is nontestimonial. Even then, if the 911 operator
asks historical questions not essential to deal with the ongoing emergency, those statements
are testimonial. Everything else is testimonial.
It appears that where a witness actually testified at a prior trial or at a preliminary
hearing where you had the opportunity to cross-examine that witness, a showing to that
effect, coupled with a showing of the unavailability of the witness, permits the admission of
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hearsay at trial about what that witness previously testified to without violating the
Confrontation Clause. It also appears clear that “police interrogations” resulting in hearsay
are testimonial when that hearsay is offered at trial. Scalia actually explains what he means
by “interrogations,” in footnote 4 of Crawford:
We use the term “interrogation” in its colloquial, rather than any technical
legal, sense. Cf. Rhode Island v. Innis, 446 U.S. 291, 300-301 (1980). Just as
various definitions of “testimonial” exist, one can imagine various definitions
of “interrogation,” and we need not select among them in this case. Sylvia's
recorded statement, knowingly given in response to structured police
questioning, qualifies under any conceivable definition.... (Crawford, supra,
at p.1365.)
Given this definition, we should be able to resist attempts by the prosecution to claim
that police questioning of non-suspects were not “interrogations,” and so the resulting
hearsay is admissible. My view of this is that when the government presents a police officer
to testify to hearsay, obtained when the police asked the hearsay declarant questions, that is
a “police interrogation.” I mean “hearsay declarant” to refer to the person whose statement
is being offered by the prosecution through the hearsay testimony of a government witness:
If officer Jones testifies to what witness Smith told officer Jones, Smith is the hearsay
declarant.
In 2007, the California Supreme Court applied Crawford and Davis. (People v. Cage
(2007) 40 Cal.4th 965.) In Cage, the victim was interviewed by a police officer at the
hospital an hour after the incident and later by a doctor. The Supreme Court says it is
applying an objective test. The court rules that the interview by the police officer resulted
in a testimonial statement, precluding admission of the statement of the declarant; the
statement is testimonial if it is given and taken primarily for the purpose of testimony, to
establish or prove some past fact for possible use in a criminal trial. The court says that some
formality is required, but the interview here was sufficiently formal. However, the court
rules that the statement to the doctor was not testimonial. Their discussion suggests that so
long as a civilian is not acting for the police, no interview is testimonial, though the breadth
of that point is unsettled.
Here are the core principles found by the court:
We derive several basic principles from Davis. First, as noted above,
the confrontation clause is concerned solely with hearsay statements that are
testimonial, in that they are out-of-court analogs, in purpose and form, of the
testimony given by witnesses at trial. Second, though a statement need not be
sworn under oath to be testimonial, it must have occurred under circumstances
7
that imparted, to some degree, the formality and solemnity characteristic of
testimony. Third, the statement must have been given and taken primarily for
the purpose ascribed to testimony—to establish or prove some past fact for
possible use in a criminal trial. Fourth, the primary purpose for which a
statement was given and taken is to be determined “objectively,” considering
all the circumstances that might reasonably bear on the intent of the
participants in the conversation. Fifth, sufficient formality and solemnity are
present when, in a nonemergency situation, one responds to questioning by law
enforcement officials, where deliberate falsehoods might be criminal offenses.
Sixth, statements elicited by law enforcement officials are not testimonial if
the primary purpose in giving and receiving them is to deal with a
contemporaneous emergency, rather than to produce evidence about past
events for possible use at a criminal trial. (People v. Cage, supra, 40 Cal.4th
965, 984; emphasis in original.)
The Cage court formulates the test applicable to the primary purpose of the statement
by saying, “Davis now confirms that the proper focus is not on the mere reasonable chance
that an out-of-court statement might later be used in a criminal trial. Instead, we are
concerned with statements, made with some formality, which, viewed objectively, are for the
primary purpose of establishing or proving facts for possible use in a criminal trial.” (People
v. Cage, supra, 40 Cal.4th 965, 984; emphasis in original.)
None of this is very controversial. However, we disagree that when the person
hearing the information is not a police officer, the statement will rarely be testimonial. If we
can show an agency relationship, or that the person was working for or on behalf of the
police, this should qualify as being testimonial.
In Crawford, the United States Supreme Court expressly overrules Ohio v. Roberts
(1980) 448 U.S. 56, to the extent that Ohio v. Roberts permits the admission of hearsay so
long as the trial court finds that it is sufficiently reliable. Ohio v. Roberts may still apply to
admission of non-testimonial hearsay. This will be examined in more detail below.
The refusal of the court to tell us what “testimonial” hearsay is raises a score of issues.
What if the police heard a spontaneous statement? What if the police asked the declarant
questions about that statement? What if someone other than the police is being called to
testify? We simply do not know the answers to these questions, which will be examined in
more detail below. Keep in mind that even if Crawford does not bar admission of hearsay
in one of the exceptions discussed below, the statutory foundation for that hearsay exception
is still required. Moreover, as discussed in the conclusion, we should urge a due process
ground as an objection to hearsay, even if Crawford does not bar it.
EVIDENCE CODE SECTION 1370
8
THE NICOLE BROWN SIMPSON HEARSAY EXCEPTION
Evidence Code section 1370, the so-called Nicole Brown Simpson hearsay exception,
permits various people to testify to statements of an unavailable hearsay declarant which
describe an injury or threat of injury to the victim. It seems clear that testimony from police
officers under Evidence Code section 1370 describing injury or threat of injury to the victim
is testimonial and is barred by Crawford, both because the police obtained the information
to use it for a criminal prosecution, and because the victim making the statement reasonably
expects it to be used in a criminal prosecution. Assuming such statements are not
spontaneous (spontaneous statements will be examined below), these are statements obtained
by the police during interviews of witnesses. This seems to me the clearest example of
testimonial hearsay. No matter how reliable the trial judge finds such statements (remember
that reliability is no longer enough to admit testimonial hearsay), admission of this
testimonial hearsay violates the federal Confrontation Clause, unless the witness is shown
to be unavailable and you had a prior opportunity to cross-examine the witness.
A more complex issue arises when the prosecution offers 1370 evidence from a nurse,
doctor, or paramedic. Such people are not, themselves, police officers. The prosecution may
well argue that such evidence is admissible as being non-testimonial hearsay. However, two
arguments suggest that such evidence ought not to qualify as testimonial hearsay. First, the
people in these categories may qualify as state agents, especially if the report to the police
was mandated by state law. California state law mandates reporting of a variety of injuries
by a variety of professionals, including nurses, doctors, and paramedics. (Pen. Code §
11160, et seq.) That mandated reporting may well convert these folks into state agents,
making them fit into the testimonial hearsay category.
In many, if not all, factual situations where these non-police personnel interviewed
a crime victim, we will be able to show that the purpose of the interview was for prosecution.
Surely all these people know that their interviews will be given to the police. They may even
have conducted the interview in the presence of the police. Our argument is that so long as
the interview statement was for the purposes of prosecution, hearsay from even these nonpolice personnel qualifies as “testimonial” in the sense of being conducted for the purpose
of ultimate presentation in court as testimony.
The second point is that the persons being interviewed could reasonably expect that
the results of that interview would be used in a criminal prosecution. The person might have
already called the police. The person is describing a crime. This argument is stronger if the
interview is after the event, where the medical professional is just taking information, as
opposed to actually treating the person right after the crime.
DYING DECLARATIONS
EVIDENCE CODE SECTION 1242
9
Scalia devotes an entire footnote to dying declarations at page 1367, footnote 6:
The one deviation we have found involves dying declarations. The existence
of that exception as a general rule of criminal hearsay law cannot be disputed.
See, e.g., Mattox v. United States, 156 U. S. 237, 243-244 (1895); King v.
Reason, 16 How. St. Tr. 1, 24-38 (K. B. 1722); 1 D. Jardine, Criminal Trials
435 (1832); Cooley, Constitutional Limitations, at 1 G. Gilbert, Evidence 211
(C. Lofft ed. 1791); see also F. Heller, The Sixth Amendment 105 (1951)
(asserting that this was the only recognized criminal hearsay exception at
common law). Although many dying declarations may not be testimonial,
there is authority for admitting even those that clearly are. See Woodcock,
supra, at 501-504, 168 Eng. Rep., at 353-354; Reason, supra, at 24-38; Peake,
Evidence, at 64; cf. Radbourne, supra, at 460-462, 168 Eng. Rep., at 332-333.
We need not decide in this case whether the Sixth Amendment incorporates an
exception for testimonial dying declarations. If this exception must be
accepted on historical grounds, it is sui generis.
With all due respect, I have no idea what Scalia is saying here. He appears to say that
dying declarations were accepted as a valid hearsay exception at common law, then says he
is not deciding whether dying declarations come in against a confrontation objection, then
tells us that whatever the rule about dying declarations is, it is sui generis, by which I assume
he means it is unique to dying declarations. I have no idea where this leaves us. The
California Supreme Court has already weighed in on this issue, saying that at common law,
dying declarations were admissible notwithstanding the right of confrontation, so such
statements are admissible even after Crawford. (People v. Monterroso (2004) 34 Cal.4th
743.) Given the lack of clarity of Scalia’s statements, the defense should obviously object
on confrontation grounds when faced with a dying declaration.
DECLARATIONS AGAINST INTEREST
EVIDENCE CODE SECTION 1230
There have been many cases lately purporting to admit declarations against interests
of persons other than defendants. These cases have relied on the so-called “interlocking
declarations” theory. A leading case on this theory was People v. Greenberger (1998) 58
Cal.App.4th 298. The California Supreme Court in People v. Brown (2003) 31 Cal.4th 518,
535-538, admitted a declaration against interest with reasoning defying logic.
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Declarations against interest, testified to by police, are clearly “testimonial” whenever
the police obtain such statements for the purpose of a criminal prosecution, or when the
people making the declarations reasonably expect that those declarations will be used for a
criminal prosecution. This is especially true of the “interlocking” declarations we often see.
These are the actual facts of the Crawford case: Mr. Crawford and his wife went to the
victim’s house because they were upset that the victim had tried to rape Mrs. Crawford. A
fight ensued and Mr. Crawford killed the victim. Mr. Crawford claimed self defense. Mrs.
Crawford gave a statement to the police in which she admitted bringing Mr. Crawford to the
victim’s house, thus exposing herself to liability for aiding the assault and murder, but in
which she denied that the victim had pulled out a weapon before Mr. Crawford began the
assault. Mrs. Crawford refused to testify, invoking the marital privilege. The lower courts
upheld admission of Mrs. Crawford’s statement as a declaration against interest on the
interlocking declarations theory, i.e., that the two statements overlap.
It is crystal clear that the United States Supreme Court in Crawford held that
admission of Mrs. Crawford’s statement violated the Confrontation Clause. This is the
precise holding of the case. Under that holding, declarations against interest, at least those
made to police officers, are testimonial hearsay and thus inadmissible unless you had an
opportunity to cross-examine the declarant previously and the declarant is now unavailable.
Of course, always keep in mind that only the portion of the declaration against interest
that is specifically disserving to the interests of the declarant is admissible as a declaration
against interest; the statement must be divided into its parts, with only the portion disserving
to the declarant admissible. (People v. Duarte (2000) 24 Cal.4th 603.) So when A says, “B
and I robbed the store,” only “I robbed the store” is against’s A’s interest. The part about B
is not against A’s interest and cannot be admitted.
SPONTANEOUS STATEMENTS
EVIDENCE CODE SECTION 1240
The newly issued Davis case directly address spontaneous statements, and when such
statements are “testimonial” and when they are not. The discussion in Davis is quoted at
length above. Again, the ultimate issue is whether, viewed objectively, the statement
describes “what is happening,” or “what happened.” The former can be a description of an
event in progress and would thus be nontestimonial. The latter is testimonial.
CO-CONSPIRATOR STATEMENTS
11
EVIDENCE CODE SECTION 1223
If a co-conspirator actually testifies to statements made by your client, this properly
qualifies as an admission without reference to the co-conspirator exception to the hearsay
rule. However, what we actually see in court is a police officer testifying to what the police
claimed a co-conspirator told them about what your client said. The issue here is whether
this is testimonial hearsay; if it is, Crawford bars its admission.
Scalia makes an oblique reference to co-conspirator statements:
But there is scant evidence that exceptions were invoked to admit testimonial
statements against the accused in a criminal case. Most of the hearsay
exceptions covered statements that by their nature were not testimonial--for
example, business records or statements in furtherance of a conspiracy.
(Crawford v. Washington, supra, 124 S.Ct. at p. 1367, fn. omitted.)
Of course, what this means is anyone’s guess.
One approach to whether hearsay is testimonial is whether the police were conducting
an interview, the results of which the police thought would or could be used in a criminal
prosecution. The other approach is that hearsay is testimonial where the person making the
statement reasonably expects that the statement will be used in a criminal prosecution. If this
is what testimonial means, a police interview of a suspect about what other suspects said
should qualify as testimonial.
Many of the statements we see being offered as co-conspirator statements are
statements made by one of the conspirators to the police at the police station after all the
conspirators have been arrested. However, the co-conspirator exception permits statements
of co-conspirators only while the conspiracy is ongoing. Once the objective of the
conspiracy has been attained or defeated, later statements are not admissible under the coconspirator exception. (People v. Saling (1972) 7 Cal.3d 844, 853.)
PRIOR INCONSISTENT STATEMENTS
EVIDENCE CODE SECTION 1235
What about prior inconsistent statements? Scalia says the following, in footnote 9 at
page 1369:
Finally, we reiterate that, when the declarant appears for cross-examination at
trial, the Confrontation Clause places no constraints at all on the use of his
prior testimonial statements. See California v. Green, 399 U. S. 149, 162
(1970). It is therefore irrelevant that the reliability of some out-of-court
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statements “cannot be replicated, even if the declarant testifies to the same
matters in court.” Post, at 6 (quoting United States v. Inadi, 475 U. S. 387, 395
(1986)). The Clause does not bar admission of a statement so long as the
declarant is present at trial to defend or explain it. (The Clause also does not
bar the use of testimonial statements for purposes other than establishing the
truth of the matter asserted. See Tennessee v. Street, 471 U. S. 409, 414
(1985).
At first glance, this statement appears to permit use of all prior inconsistent statements
so long as the declarant actually testifies at trial. Where a testifying witness admits making
the prior statement, you are certainly getting confrontation. But what if the testifying witness
denies making the prior statement, or claims he or she does not recall making the prior
statement? Even with the witness testifying, how are you getting confrontation of what may
be the only evidence of guilt? For example, assume the witness comes to court and says your
client is not the culprit. The witness denies he ever said your client was guilty, or claims he
does not recall making any such statement previously. The prosecutor then calls a police
officer who claims the witness said your client is guilty. You are not getting to confront the
critical statement in this scenario, that statement being that your client is guilty. The witness
supposedly making the statement denies making it. You are left challenging the police
officer relating hearsay. This certainly looks like testimonial hearsay. Scalia says, “The
Clause does not bar admission of a statement so long as the declarant is present at trial to
defend or explain it.” (Crawford v. Washington, supra, at p. 1369.) Our argument is that
where the witness denies making the prior statement, the declarant is not defending or
explaining it, and thus confrontation is not being satisfied.
Several California cases have found no Crawford problem with admission of prior
inconsistent statements. (People v. Harless (2004) 124 Cal.App.4th 70; People v. Martinez
(2005) 125 Cal.App.4th 1035.)
EVIDENCE CODE SECTION 1360
Evidence Code section 1360 is an exception to the hearsay rule which admits
statements of minors under 12 describing acts of child abuse or neglect. Crawford clearly
bars admission of any such statements so long as they are testimonial. If a police officer
obtains the statement, this would obviously be testimonial. The same principles applicable
to Evidence Code section 1370 should apply with respect to doctors or nurses obtaining the
statement. Again, they may be state agents because of the mandatory reporting rules, and the
child making the statement may reasonably expect the result of the statement will be
prosecution.
13
EVIDENCE CODE SECTION 1350
Evidence Code section 1350 makes hearsay admissible if the declarant is unavailable
as a witness and that unavailability was caused by the defendant. Obviously, this anticipates
that the defendant will kill or kidnap the witness. However, Crawford clearly applies to this
situation. The defendant’s alleged conduct notwithstanding, this is purely testimonial
hearsay being offered where even though the witness may be unavailable, the defense never
had an opportunity to cross-examine the witness.
EVIDENCE CODE SECTION 1380
Evidence Code section 1380 creates a hearsay exception in an elder abuse prosecution
under Penal Code section 368, for statements made by the victim of the alleged violation,
where the statements are trustworthy, etc. The Court of Appeal has found Evidence Code
section 1380 unconstitutional after Crawford. (People v. Pirwani (2004) 119 Cal.App.4th
770.)
EVIDENCE CODE SECTION 1228
Evidence Code section 1228 is an oddball section. The section says that hearsay is
not made inadmissible “for the purpose of establishing the elements of the crime in order to
admit as evidence the confession” of a defendant charged with a specific sex offense. At the
time it was enacted, the confession of a defendant was inadmissible without proof of the
corpus of the underlying crime. Of course, in 2002 the California Supreme Court ruled that
the so-called “corpus cop-out rule” was abrogated by Proposition 8, to the extent that it is a
rule of admissibility. (People v. Alvarez (2002) 27 Cal.4th 1161.) Evidence Code section
1228 has thus become a dead letter. However, the section itself is unclear about whether the
hearsay is admissible as evidence or only as a foundation for admission of a confession. If
the latter, 1228 would never be a problem.
However, if 1228 is construed to mean that the hearsay statement is admissible to
prove the truth of the crime, then Crawford certainly applies. Again, the context of the
statement would determine whether it was testimonial and thus inadmissible under Crawford.
PROVING UP PRIOR CONVICTIONS
In 1988, the California Supreme Court ruled that the determination of whether a prior
conviction qualifies as a serious felony is not limited to the least adjudicated elements of the
prior. The court ruled that the trier of fact may look to the entire face of the record to
determine whether the prior conviction qualified. The court barred admission of live
testimony to prove the nature of the prior. (People v. Guerrero (1988) 44 Cal.3d 343.)
14
In 1996, the court considered a confrontation challenge to the use of records to prove
the nature of the prior conviction. The court rejected that challenge, relying on Ohio v.
Roberts, a case overruled in Crawford. (People v. Reed (1996) 13 Cal.4th 217.)
Since Guerrero prevents the prosecution from proving that a prior conviction
qualifies as a serious felony, the prosecution will always have to prove the nature of the prior
by documentary evidence. We should object on confrontation grounds to such evidence.
Since the documents are being used to prove some fact, such as the defendant personally
using a deadly weapon, or that the burglary was of a residence, this sure looks like
testimonial hearsay. If Crawford bars its admission, the prosecution will be unable to prove
facts which might be necessary to establish that a prior qualifies as a prior.
BUSINESS RECORDS
What about the various business records and documents the prosecution offers in our
cases? As already quoted above, Scalia makes an oblique reference to records:
But there is scant evidence that exceptions were invoked to admit testimonial
statements against the accused in a criminal case. Most of the hearsay
exceptions covered statements that by their nature were not testimonial--for
example, business records or statements in furtherance of a conspiracy.
(Crawford v. Washington, supra, 124 S.Ct. at. p. 1367, fn. omitted.)
This is hard to understand. Sometimes a business record is testimonial by any sense
of that term: it is a record offered as testimony; it is hearsay. A business record prepared
with the express purpose of being offered into evidence at a criminal prosecution is clearly
testimonial, for example, a report of a police chemist that an item is in fact a controlled
substance. Again, I think the correct question is whether the business record is made by
someone who intends to use it in a criminal prosecution. If so, the record is testimonial. I
think Scalia means here that true business records, those done in the ordinary course of
business unrelated to any criminal prosecution, are not testimonial. If the record is the
documentation from Ford that they made a certain car, this, with the proper foundation,
would be a business record but not testimonial.
There are prosecutions where all of the evidence is by records. Does Scalia mean that
there is no scenario under which admission of business records violates the Confrontation
Clause? Could the prosecution simply offer the police reports as business records and have
statements in those reports be the only evidence of guilt and have no violation of the
Confrontation Clause? This hardly seems possible.
The scope of a confrontation challenge to business records is thus unclear. We should
insist that any testimonial hearsay, by which I mean a statement made out of court which
purports to state a fact being offered to prove that fact is true, is made to a person obtaining
15
the statement for purposes of a criminal prosecution, or is made by a person who reasonably
expects the statement to be used in a criminal prosecution, is barred by Crawford, whether
it is in a record or not.
The business record exception to the hearsay rule is poorly understood. In a recent
case, a victim called a women’s shelter and went to the shelter, filling out an intake form.
At trial, the victim testified favorably for the defendant. The prosecutor was permitted to
introduce into evidence the telephone log of the call and the intake form. The Court of
Appeal found this error, though harmless. The Court of Appeal found that neither the call
nor the form could qualify as business records because the victim did not have an official
duty to observe and report the relevant facts. The person recording the facts had an
obligation to accurately record them, but the victim did not, so the items failed the critical
test. (People v. Ayers (2005) 125 Cal.App.4th 988.)
There is now a California case on business records. The case involved admission of
a crime laboratory report, which had been used at a probation violation hearing to show that
the item the defendant possessed was cocaine. The Court of Appeal ruled that admission of
this report did not violate Crawford. The Court of Appeal held that the document was not
testimonial, because it was just routine documentary evidence. The court ruled that it is not
a substitute for live testimony, because if the preparer of the report had appeared, all the
preparer would have done is authenticate the document. (People v. Johnson (2004) 121
Cal.App.4th 1409.) This is so obviously wrong that the precedential value of the case must
surely be minimal.
Another Court of Appeal admitted that Crawford cannot be avoided by the admission
of public records such as police reports that contain testimonial statements given by people
interrogated by the police who might be witnesses at trial. (People v. Salinas (2007) __
Cal.App.4th __; 2007 DJ DAR 641; DJ, 1/17/07.) However, that court found that lab reports
do not contain witness statements since they are only admitted to show recorded test results.
That court then found that Crawford was not violated by the presentation of a supervising
chemist who did not actually perform a test.
EXPERTS
Experts have traditionally been permitted to rely on hearsay in forming their opinions.
Evidence Code section 801 provides that an expert can rely on information given to the
expert so long as the information is of a type that reasonably may be relied on by an expert
in forming an opinion.
It is unclear what Crawford does to this topic. Perhaps nothing. However, we see
cases where the prosecution offers an expert who knows nothing but what another
16
prosecution expert told him. For example, we see coroners testify where that coroner did
nothing but talk to (or review the notes of) the coroner who actually conducted the
examination. This looks like a Crawford violation.
PROBATION VIOLATION HEARINGS
Are the rules of evidence barring admission of testimonial hearsay at trial applicable
to probation violation hearings? Nothing in Crawford addresses this issue. In California,
hearsay is generally excluded at probation violation hearings. (People v. Arreola (1994) 7
Cal.4th 1144.) Many cases have ruled that a defendant has the right to confront witnesses
at a probation violation hearing. (Jones v. Superior Court (2004) 115 Cal.App.4th 48, 6162.) One Court of Appeal has held that Crawford does not apply to probation violation
hearings at all. (People v. Johnson (2004) 121 Cal.App.4th 1409.) If hearsay is offered at
a probation violation hearing, the defense should object on Crawford grounds.
CRAWFORD AND DEFENSE HEARSAY
Sometimes we have hearsay we intend to offer. Does Crawford bar defense hearsay?
There is no discussion in Crawford on this subject. But the right to confront witnesses is a
right of the defendant, not a right of the prosecution. The United States Supreme Court has
stated, “But because hearsay statements of this sort are, by definition, offered by the accused,
the admission of such statements does not implicate Confrontation Clause concerns.” (Lilly
v. Virginia (1999) 527 U.S. 116, 130, 119 S.Ct. 1887, 1897, 144 L.Ed.2d 117.)
In Giles, Justice Scalia makes it clear that Crawford never applies against the defense:
The dissent also implies that we should not adhere to Crawford because the
confrontation guarantee limits the evidence a State may introduce without
limiting the evidence a defendant may introduce. See post, at 9. That is true.
Just as it is true that the State cannot decline to provide testimony harmful to
its case or complain of the lack of a speedy trial. The asymmetrical nature of
the Constitution’s criminal-trial guarantees is not an anomaly, but the
intentional conferring of privileges designed to prevent criminal conviction
of the innocent. The State is at no risk of that. (Giles v. California (2008) __
U.S. __; 2008 DJ DAR 9491; DJ, 6/26/08, fn. 7.)
There is no scenario under which admission of hearsay on behalf of a defendant can
violate the Confrontation Clause of the United States Constitution. Whatever problems you
may have in admission of defense hearsay, Crawford is not one of those problems.
PRELIMINARY HEARINGS
17
The description by the Supreme Court in Crawford of what the Confrontation Clause
bars seems to match perfectly with the hearsay we see the prosecution offering at preliminary
hearings. It is purely testimonial, obtained solely for the purpose of presenting testimony,
and it is hearsay. Does Crawford bar admission of Proposition 115 hearsay at preliminary
hearings?
Lots of people think so. The problem is that the California Supreme Court has held
that the California Constitution does not require confrontation at a preliminary hearing.
(Whitman v. Superior Court (1991) 54 Cal.3d 1063.) The United States Supreme Court has
repeatedly said that confrontation is a “trial right.” (See, e.g., Pennsylvania v. Ritchie (1987)
480 U.S. 39, 52.) At first glance, it is difficult to articulate an argument that confrontation
applies at a California preliminary hearing.
Another unsettled topic is the impact of Crawford on the former testimony exception
to the hearsay rule when the testimony comes from a preliminary hearing. (Evid. Code
§ 1290.) When the preliminary testimony is Proposition 115 hearsay, pre and post-Crawford,
this is inadmissible at trial; it’s double hearsay. What about live witness statements at a
preliminary hearing later offered at trial? An argument can be made that the nature of
preliminary hearings has changed so substantially that even cross-examination of a witness
at a preliminary hearing is insufficient for confrontation under Crawford. If we are cut off
during cross, this is the best scenario for challenging admission of preliminary hearing
testimony at trial.
SEXUALLY VIOLENT PREDATORS
The application of Crawford to sexually violent predator proceedings is unclear. If,
as some cases suggest, sexually violent predator proceedings are actually civil in nature
rather than criminal, then no right of confrontation applies in any event. Obviously, this will
have to be litigated.
FORFEITURE BY WRONGDOING
A frequent prosecution sham to avoid Crawford is to urge the concept of “forfeiture
by wrongdoing.” Essentially, the prosecution argues that the witness failed to appear
because the defendant caused the failure to appear; either by killing the witness or by
threatening the witness.
Two years after Crawford, there was a troubling discussion of forfeiture by
wrongdoing. The court stated that if the government can prove that your client procured the
absence of the witness, the client has forfeited the right of confrontation: “We reiterate what
we said in Crawford: that ‘the rule of forfeiture by wrongdoing … extinguishes confrontation
18
claims on essentially equitable grounds.’ 541 U. S., at 62 (citing Reynolds, 98 U. S., at
158–159). That is, one who obtains the absence of a witness by wrongdoing forfeits the
constitutional right to confrontation.” (Davis v. Washington (2006) __ U.S. ___, 126 S.Ct.
2266, 2280.)
The California Supreme Court embraced forfeiture by wrongdoing, rejecting cases
requiring that the witness’s unavailability have been caused by the defendant specifically to
prevent the witness from testifying. (People v. Giles (2007) 40 Cal.4th 833.) The court ruled
that if the defendant killed the victim or otherwise made the victim unavailable to testify, this
triggered the forfeiture by wrongdoing exception to Crawford. The court ruled that the
defendant need not have acted with express intent to prevent the declarant from being a
witness.
The United States Supreme Court granted certiorari in Giles and has now reversed the
California Supreme Court. The United States Supreme Court held that the forfeiture by
wrongdoing exception requires a showing that the defendant acted with the intent to prevent
the declarant from testifying. (Giles v. California (2008) __ U.S. __; 2008 DJ DAR 9491;
DJ, 6/26/08.) The court restates this point repeatedly:
“The terms used to define the scope of the forfeiture rule suggest that the exception
applied only when the defendant engaged in conduct designed to prevent the witness from
testifying.” (Emphasis in original.)
“We are aware of no case in which the exception was invoked although the defendant
had not engaged in conduct designed to prevent a witness from testifying, such as offering
a bribe.”
“The manner in which the rule was applied makes plain that unconfronted testimony
would not be admitted with out a showing that the defendant intended to prevent a witness
from testifying. In cases where the evidence suggested that the defendant had caused a
person to be absent, but had not done so to prevent the person from testifying – as in the
typical murder case involving accusatorial statements by the victim—the testimony was excluded unless it was confronted or fell within the dying declaration exception.” (Emphasis
in original.)
“But as the evidence amply shows, the ‘wrong’ and the ‘evil Practices’ to which these
statements referred was conduct designed to prevent a witness from testifying.” (Emphasis
in original.)
19
“Reynolds [v. United States, 98 U. S. 145 (1879)] ... relied on them (as the
common-law authorities had done) to admit prior testimony in a case where the defendant
had engaged in wrongful conduct designed to prevent a witness’s testimony.”
This is about a clear a statement as we ever see in a Supreme Court opinion. Thus,
the mere absence of the witness, even if that absence was caused by the defendant, cannot
trigger the forfeiture by wrongdoing exception. Again, there must be evidence that the
defendant intentionally procured the witness’s absence with the intent to prevent the
testimony of the witness.
One point has gotten a lot of attention. The court discusses domestic violence cases:
The domestic-violence context is, however, relevant for a separate reason.
Acts of domestic violence often are intended to dissuade a victim from
resorting to outside help, and include conduct designed to prevent testimony
to police officers or cooperation in criminal prosecutions. Where such an
abusive relationship culminates in murder, the evidence may support a finding
that the crime expressed the intent to isolate the victim and to stop her from
reporting abuse to the authorities or cooperating with a criminal prosecution
– rendering her prior statements admissible under the forfeiture doctrine.
Earlier abuse, or threats of abuse, intended to dissuade the victim from
resorting to outside help would be highly relevant to this inquiry, as would
evidence of ongoing criminal proceedings at which the victim would have
been expected to testify.
It is clear that the court is not adopting some special exception for domestic violence
cases. The same rules apply. However, in any case the prosecution might be able to show
that the absence of the witness was caused by the defendant with the intent to prevent the
witness from testifying or even going to the police.
Two final thoughts. The court says that,
only testimonial statements are excluded by the Confrontation Clause.
Statements to friends and neighbors about abuse and intimidation, and
statements to physicians in the course of receiving treatment would be
excluded, if at all, only by hearsay rules, which are free to adopt the dissent’s
version of forfeiture by wrongdoing. (Emphasis in original.)
So what if the prosecution attempts to rely on the court’s statement that admission of
nontestimonial statements do not violate Crawford? Of course, you should litigate the issue
of whether the statements were in fact nontestimonial. Davis v. Washington, supra, __ U.S.
20
___, 126 S.Ct. 2266, discusses what “testimonial” means in the Crawford context. Moreover,
keep in mind that even nontestimonial statements are inadmissible unless some hearsay
exception applies. If, for example, the complaining witness told a neighbor that your client
hit her a week earlier, what hearsay exception would permit admission of that undoubted
hearsay? The fact that admission of such hearsay would not violate confrontation does not
make it admissible; only an express hearsay exception can render such a statement
admissible.
The second point is the foundation for the claim that the defendant is responsible for
the witness being unavailable. All too often that foundation will consist of a prosecutor
simply claiming it. Perhaps the prosecutor spoke to someone claiming to be the witness, who
in turn claimed the defendant is threatening the witness. We should challenge this, objecting
that the prosecutor is not under oath. In many of these contexts, the court is going to be
asked to assume the guilt of the defendant as the foundation; we must resist this.
RETROACTIVITY
We have now lost the issue of retroactivity. The United States Supreme Court found
that Crawford overruled prior precedent, and thus was a new rule. New rules do not apply
retroactively, with exceptions the court found inapplicable to Crawford. (Whorton v.
Bockting (2007) 127 S.Ct. 1173.)
21
CASES
The statement at issue was of a four-year-old who could not qualify as a witness. The
statement was made during a MultiDisciplinary Interview Center (MDIC) interview,
conducted by a forensic interview specialist and with a prosecutor and a District Attorney
investigator present. The statement was made after charges had been filed. An objective
observer would have reasonably foreseen that this statement would be used in a prosecution;
it was thus testimonial and admission of it violated Crawford: “The pertinent question is
whether an objective observer would reasonably expect the statement to be available for use
in a prosecution.” (Emphasis in original.)
People v. Sisavath (2004) 118 Cal.App.4th 1396
Evidence Code section 1380 (dependent adult hearsay exception) is unconstitutional
after Crawford. Even assuming that the statement was not taken specifically with a view
towards its use at trial, it would be reasonable to anticipate its use at trial, and that is
sufficient to qualify as testimonial under Crawford.
People v. Pirwani (2004) 119 Cal.App.4th 770
Where the victim actually testified at the preliminary hearing, admission of prior
hearsay statements under Evidence Code section 1370 did not violate the Confrontation
Clause.
People v. Price (2004) 120 Cal.App.4th 224
The hearsay declarant sought out a nurse, who was a neighbor, for medical treatment
outside normal avenues. The witness thus “did not reasonably anticipate the statement would
be used at trial.” The statement was thus not testimonial, and was not barred by Crawford.
People v. Cervantes (2004) 118 Cal.App.4th 162
Crawford does not apply to probation violation hearings at all. Routine documentary
evidence (here, the crime lab’s report that the substance was cocaine) is not testimonial and
thus does not trigger Crawford, because use of the document is not a substitute for live
testimony.
People v. Johnson (2004) 121 Cal.App.4th 1409
A crime laboratory report, used at a probation violation hearing to show that the item
the defendant possessed was cocaine, did not violate Crawford. Crawford does not apply at
all to probation violation hearings. Moreover, the document is not testimonial, because it is
just routine documentary evidence. It is not a substitute for live testimony, since if the
preparer of the report had appeared, all the preparer would have done is authenticate the
document.
People v. Johnson (2004) 121 Cal.App.4th 1409
22
The prosecutor failed to meet the foundational requirements of Evidence Code section
1370, the Nicole Brown Simpson hearsay exception, for statements regarding the infliction
or threat of infliction of harm. There was a failure to satisfy trustworthiness for the statement
at issue here, an affidavit was filed in support of a restraining order three days before the
murder. The foundation for trustworthiness cannot come solely from the statement itself, but
must come from surrounding circumstances. No surrounding circumstances at all were
presented here. Moreover, 1370 itself mentions as a trustworthiness factor whether the
statement was made in anticipation of litigation, which this statement surely was.
People v. Pantoja (2004) 122 Cal.App.4th 1
The victim called 911 and spoke to the 911 operator. The police responded to the
scene. The victim spoke to the officer who responded. Neither statement is testimonial since
the conversations were informal. The prosecutor cannot get into evidence everything the
victim said; only the description of the commission of the offense is admissible. It was
improper to prevent the defense from impeaching the bad statements with the victim’s
preliminary hearing testimony where she said nothing happened, since Evidence Code
section 1202 permits impeachment of hearsay declarants.
People v. Corella (2004) 122 Cal.App.4th 461
Crawford reinforces the confrontation ban against using statements of co-defendants
which implicate the defendant.
People v. Song (2004) 124 Cal.App.4th 973
Statements of a non-testifying co-defendant implicating the defendant violate
Crawford, in addition to Aranda and Bruton. A limiting instruction does not cure the
Crawford error where there is both Crawford error and Aranda error.
People v. Song (2004) 124 Cal.App.4th 973
At common law, dying declarations were admissible notwithstanding the right of
confrontation; so such statements are admissible even after Crawford.
People v. Monterroso (2004) 34 Cal.4th 743
There was no violation of Crawford where, as here, the hearsay declarant actually
testified at trial and was cross examined.
People v. Morrison (2004) 34 Cal.4th 698
Where the victim actually testified at trial, even though she denied making her
previous statements, impeachment of her testimony with prior inconsistent statements did not
violate Crawford.
People v. Martinez (2005) 125 Cal.App.4th 1035
23
Statements made by a person calling the defendant’s home and asking to buy drugs
are admissible even under Crawford, because such statements are not testimonial.
People v. Morgan (2005) 125 Cal.App.4th 935
The statements at issue were not offered for their truth, but only to show that the
defendant adopted them. As adoptive admissions, the statements were offered for a nonhearsay purpose and thus did not violate Crawford.
People v. Combs (2004) 34 Cal.4th 821
A statement made by the victim to a friend at school was not testimonial. Thus,
admission of that statement did not violate Crawford.
People v. Griffin (2004) 33 Cal.4th 536
Hearsay offered in a search and seizure context relating to Harvey-Madden source of
probable cause issues does not implicate the Sixth Amendment right to confront a
defendant’s accuser.
People v. Gomez (2004) 117 Cal.App.4th 531
Admission into evidence of statements made to non-police at the time of the crime do
not violate Crawford because the statements were not testimonial.
People v. Butler (2005) 127 Cal.App.4th 49
A proof of service to prove that the defendant was served with a restraining order is
not testimonial. The deputy is not an accuser making a statement to the government. The
deputy did not give testimony against the defendant. The deputy’s testimony would only
have authenticated the proof.
People v. Saffold (2005) 127 Cal.App.4th 979
Prison packets which are used to prove a prior conviction are not prepared for the
purpose of providing evidence in criminal trials or for determining whether criminal charges
should issue, and are thus not testimonial and do not trigger any Crawford issue.
People v. Taulton (2005) 129 Cal.App.4th 1218
A gang expert was permitted to testify that the defendant was a member of a gang, to
prove the substantive gang membership offense. The gang expert formed his opinion based
on hearsay statements of other gang members who identified the defendant as a gang
member. There is no denial of confrontation here because the defense got to confront the
expert. Moreover, the hearsay statements are not being offered for their truth.
People v. Thomas (2005) 130 Cal.App.4th 1202
The police here interviewed all three defendants in a group. The resulting admissions
are admissible as adoptive admissions. Since the statements are not being offered for their
24
truth but to supply meaning to the response, there is no Crawford issue. Perhaps silence
cannot qualify as an adoptive admission in this context.
People v. Castille (2005) 129 Cal.App.4th 863
Reliability is no longer a relevant factor in evaluating a confrontation claim.
People v. Wilson (2005) 36 Cal.4th 309
“Rather, Salas spoke to a civilian, Sanchez, at Sanchez’ home in the immediate
aftermath of a shooting--a shooting in which Salas himself was wounded. Salas could not
reasonably have anticipated that Sanchez, a former gang member, would relate the statements
to law enforcement, or that the statements would somehow be used in court. Moreover, as
we have held, Salas’ statements qualify as spontaneous statements under Evidence Code
section 1240, the requirements of which are largely identical to the common law hearsay
exception for spontaneous declarations as described in Crawford. That is, substantial
evidence supports a finding Salas spoke ‘immediat[ely] upon the hurt received, and before
[the declarant] had time to devise or contrive any thing for her own advantage.’ (Crawford,
supra, 541 U.S. at p. 58, 124 S.Ct. 1354, fn. 8.) Such a statement, Crawford strongly implies,
is not testimonial.”
People v. Rincon (2005) 129 Cal.App.4th 738, 757
The statement in Crawford that business records are by their nature not testimonial
cannot mean that all documentary evidence is admissible. The issue is whether the business
record at issue contains testimonial evidence.
People v. Mitchell (2005) 131 Cal.App.4th 1210
Use of preliminary hearing testimony to establish that a prior qualifies as a strike prior
is not barred by Crawford. The defense has the same motive to cross examine at a
preliminary hearing as at a trial.
People v. Gonzales (2005) 131 Cal.App.4th 767
Non-testimonial statements are admissible only if they are shown to be sufficiently
reliable under Ohio v. Roberts (448 US 56).
People v. Smith (2006) 135 Cal.App.4th 914
The police heard a woman scream. The defendant emerged from an apartment and
ran. The police found a group of hysterical women in the apartment. The officer’s questions
were directed at determining what might happen in the next few minutes and the nature of
the emergency, and thus were nontestimonial. “As such, Lopez’s answers” were
nontestimonial under Crawford and Davis, even though they narrated past events.
People v. Chaney (2007) 148 Cal.App.4th 772
The primary purpose of the interview here was to assess the victim’s mental and
physical condition and deal with her potentially critical need for assistance and protection.
Thus, many of the statements were not testimonial. However, the interview evolved into a
25
discussion aimed at implicating the defendant for elder abuse; those questions elicited
testimonial statements. However, those portions did not violate confrontation because they
were not admitted for their truth, but only to evaluate the victim’s mental functioning, which
was relevant here.
People v. Cooper (2007) 148 Cal.App.4th 731
There was a fire still burning here, so the police needed to know if there was a danger
to the officers; the statements were thus about an ongoing emergency and were
nontestimonial. The statements did not purport to describe past events that had occurred
“some time ago.” “The statements were hardly taken under the calm circumstances of a
formal interrogation. They were not the result of a tape-recorded statement taken at a police
station, as in Crawford, or a handwritten account prepared in a room with an officer nearby,
as in Hammon.”
People v. Pedroza (2007) 147 Cal.App.4th 784
The victim was interviewed by a police officer at the hospital an hour after the
incident and later by a doctor. The interview by the police officer resulted in a testimonial
statement, precluding admission of the statements of the declarant; the statement is
testimonial if it is given and taken primarily for the purpose of testimony, to establish or
prove some past fact for possible use in a criminal trial. This is an objective test. Some
formality is required, but the interview here was sufficiently formal. However, the statement
to the doctor was not testimonial. Their discussion suggests that so long as a civilian is not
acting for the police, no interview is testimonial, though the breadth of that point is unsettled.
People v. Cage (2007) 40 Cal.4th 965
Crawford does not apply retroactively because it is a new rule. It is a new rule
because it overruled prior precedent.
Whorton v. Bockting (2007) 127 S.Ct. 1173
The gang expert in this case relied on hearsay as the basis for his opinion that this
crime was done for the gang. This does not violate Crawford, since an expert can give
opinion testimony based on hearsay. This hearsay is not the kind of hearsay that Crawford
bars, even though this expert’s opinion has value only if the jury believes the hearsay the
expert relied upon, and “it is permissible for the jury to consider the truth of the hearsay in
evaluating the expert's opinion.”
People v. Ramirez (2007) 153 Cal.App.4th 1422
The testifying prosecution DNA expert relied on lab reports of another expert. A
statement is testimonial if it’s made to or by a law enforcement officer or agent, describes
a past fact, and is for possible use at a later trial. A lab report of a contemporaneous test is
26
not a past fact, it is a current one, so it is not testimonial. Some business record documents
are testimonial if they contain historical facts.
People v. Geier (2007) 41 Cal.4th 555
The co-defendant’s confession was redacted under Aranda to remove any reference
to the defendant. This precludes any Crawford error, since the redacted statement contained
no evidence against the defendant at all.
People v. Stevens (2007) 41 Cal.4th 182
The officer responded to a domestic disturbance call. The defendant answered the
door. He had blood on his hands and his shirt. He ran off. A woman inside was screaming.
The officer found her slumped over, with blood on her hands and her face. Her nose was
swollen. She was distraught and crying. The officer asked her what happened, and she said
that the defendant had punched her in the face. There was an ongoing emergency, and that
the primary purpose of the interview was to assess the situation and determine if the woman
needed medical help. The statement was non-testimonial and thus admission of it did not
violate Crawford.
People v. Johnson (2007) 150 Cal.App.4th 1467
In this case, the victim of spousal beating got her children and drove 30 minutes to
a police station to make a report. The victim made a report to the desk sergeant, then
detectives were called in from the field to interview the victim. The interview was to deal
with a contemporaneous emergency, not to produce evidence for possible use at a criminal
trial. Going to the police station was the “functional equivalent” of a 911 call. Thus, the
statement was non-testimonial and Crawford did not bar its admission.
People v. Saracoglu (2007) 152 Cal.App.4th 1584
The statement at issue in this case was not testimonial because the victim had just
been stabbed, the victim was still suffering from the wound, and the defendant was still at
large and might have been searching for the victim. The 911 call was not testimonial
because the victim made his statement in response to rapid-fire questioning from the
dispatcher: “There was nothing formal, solemn or structured about the colloquy.”
People v. Brenn (2007) 152 Cal.App.4th 166
Where the defense offers part of the statement of a declarant, Evidence Code section
356, the part and whole evidence rule, permits the prosecutor to admit into evidence another
part of the statement. There is no Crawford problem, because in essence the defense
forfeited any Crawford claim by offering part of the statement.
People v. Parrish (2007) 152 Cal.App.4th 263
The testifying witness in this case said he could not recall what happened. Under
California law, the judge can make a finding that the witness is lying when claiming lack of
memory, making a prior statement admissible as a prior inconsistent statement. Admission
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of a prior inconsistent statement under these circumstances does not violate Crawford,
because the defendant is getting to confront the witness.
People v. Gunder (2007) 151 Cal.App.4th 412
Admission into evidence of a conversation between two defendants in a jail cell,
where each make incriminating statements, does not violate Crawford, because the
statements were not testimonial. The defendants would not have thought that their
statements might be used at a later trial.
People v. Jefferson (2008) 158 Cal.App.4th 830
The statement here was from a victim who called 911 several hours after the event and
was calm. The victim made a statement 5 1/2 hours after the crime, and that was the
statement admitted. The fact that the victim was upset does not make the statement reliable.
Also, the fact that the victim made a calm 911 call shows that any later statement was not
reliable, because the victim must have weighed the costs of calling the police against any
benefit, so she did not make the statement while excited. This statement was not reliable, and
its admission violated the confrontation clause, even though this case arose before Crawford,
because Ohio v. Roberts (448 U.S. 56) still requires reliability for admission of statements.
Winzer v. Hall (9th cir., 2007) 494 F.3d 1192
Can the prosecution use a chemist’s report that a substance was cocaine in lieu of
actual live testimony by the chemist, or does this violate Crawford?
Melendez-Diaz v. Massachusetts; cert. granted, 2008 DJ DAR 3661; DJ, 3/18/08
The forfeiture by wrongdoing exception to Crawford does not apply merely because
the prosecution can show that the defendant made the witness unavailable. The prosecution
also has to show that the defendant engaged in conduct designed to prevent the witness from
testifying.
Crawford applies against the prosecution; never against the defense.
Giles v. California (2008) __ U.S. __; 2008 DJ DAR 9491; DJ, 6/26/08
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WHAT TO DO WHEN HEARSAY IS OFFERED
As the above discussion shows, Crawford raises more questions than it answers. You
should raise the specific points discussed above. Generally, until this settles down, you
should object to all hearsay on confrontation grounds, citing Crawford. If the nontestimonial hearsay exception actually means something, we should take the position that
even non-testimonial hearsay must still be shown to be reliable. This must be true. For
example, assume a truly spontaneous statement. A witness runs out of a house screaming,
“Bill just killed Joe.” Assume you can show that the witness is actively psychotic and
delusional and was on drugs at the time. Surely such an unreliable statement cannot be
admitted in a criminal case without violating due process of law. Although the Supreme
Court in Crawford overrules Ohio v. Roberts, we should take the position that Ohio v.
Roberts was only overruled to the extent that it permitted testimonial hearsay so long as the
trial court found it was reliable. Reliability should still be required for admission of nontestimonial hearsay. We should cite Ohio v. Roberts for this point.
In sum:
When hearsay is offered,
Object on federal confrontation grounds, citing Crawford
Object on federal due process grounds, citing Ohio v. Roberts
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