evidentiary issues and the crawford test
Post on 18-Apr-2022
2 Views
Preview:
TRANSCRIPT
CHAPTER ELEVEN – 7364P
Evidentiary Issues and the "Crawford" Test
799
Course Summary
The court developed a test, commonly referred to as the "Crawford" test, where a court makes a decision based on the circumstances under which the statement was given to determine if it is "testimonial" or offered for a later criminal proceeding - or for another "non-testimonial" reason. This program will address experts testifying in criminal cases about reports prepared by others and the constitutional and evidentiary ramifications which flow therefrom. Faculty: Professor Jules Epstein Isla A. Fruchter, Esq. Kevin Harden, Jr., Esq.
800
Crawford, Hearsay and Confrontation
801
802
9/23/2012
1
Isla Fruchter, Kevin Harden, and Jules Epstein
Face to FaceScope of CrossHEARSAY
803
9/23/2012
2
Trials are about witnesses who tell facts and are cross-examined.
When hearsay replaces a witness, we cannot cross-examine.
804
9/23/2012
3
No Confrontation issue for hearsay of a testifying witness
For a non-testifying declarant, the Confrontation guarantee applies to “testimonial” hearsay
No testimonial statements of a witness
(1) who did not appear at trial (2) unless he was unavailable to testify, and
(3) the defendant had a prior opportunity for cross-examination.
805
9/23/2012
4
Only testimonial statements cause the declarant to be a "witness" within the meaning of the Confrontation Clause.”
Davis v. Washington, (U.S. 2006)
806
9/23/2012
5
Ongoing Emergency statements are non-testimonial
Post-Emergency descriptions of past events are testimonial
807
9/23/2012
6
Shot at location 1Go to location 2Police arrive 25 minutes post-shooting“Bryant did it.”
objective declarant(?) testCritical here is what an objective victim or witness, in this circumstance, would believe the questioning was about and/or how the answers would be used.
808
9/23/2012
7
That can be affected by ◦what questions the police asks, ◦How questions are phrased, and ◦ the physical condition of the witness or victim.
Type of hearsay [e.g. statement for medical treatment] may help determine if hearsay is testimonial
Formality helps determine
809
9/23/2012
8
No time limit for an emergency Test is situational, with factors such as:
the type of weapon used, the likelihood that the criminal might harm others, and
whether the perpetrator has clearly left the area.
810
9/23/2012
9
Bryant and Domestic Violence:
Bryant retains the basic domestic violence analysis of Davis and Hammond.
811
9/23/2012
10
Holding: Lab Report is testimonial
The certificates reported: the weight of the seized bags and that the bags "[h]a[ve] been examined with
the following results: The substance was found to contain: Cocaine."
812
9/23/2012
11
The Sixth Amendment guarantees a defendant the right "to be confronted with the witnesses against him." (Emphasis added.)
To the extent the analysts were witnesses, they certainly provided testimony againstpetitioner, proving one fact necessary for his conviction--that the substance he possessed was cocaine.
813
9/23/2012
12
Probably do not need witnesses for: chain of custody authenticity of the sample, or accuracy of the testing device
Many tests require multiple ‘performers’Which one(s) must testify?
814
9/23/2012
13
Analyst Caylor tested blood and wrote a certificate that included:
Reason for stop Time of blood draw
815
9/23/2012
14
BAC - .21 Certificate of accuracy Certified that lab procedures were followed
At trial, Caylor does not appear
On unpaid leaveAnother analyst, “expert in gas chromatography,” testified as to results.
816
9/23/2012
15
This is a testimonial reportAnother analyst, who neither participated in nor observed the testing, is not an acceptable surrogate witness.
Why?
surrogate testimony…could not convey what Caylor knew or observed about…the particular test and testing process he employed.
Nor could such surrogate testimony expose any lapses or lies on the certifying analyst’s part.
817
9/23/2012
16
Options (if analyst is unavailable)Notice and demandRetest the sample
What if an autopsy is videotaped?
May another expert watch the tape and testify to conclusions?
818
9/23/2012
17
Different result if blood was drawn for hospital treatment – not “primary purpose” of creating testimony
Maybe different result if surrogate supervised or witnessed the test.
What about “pure numbers?” we do not decide whether…a State could introduce (assuming an adequate chain of custody foundation) raw data generated by a machine
“Raw data” from a machine are not hearsay.
819
9/23/2012
18
RapeVaginal swab sent to CellmarkCellmark returns a report with a “deduced male DNA profile.”
The deduced profile matches Williams
820
9/23/2012
19
Trial: No one from Cellmark testifies. An Illinois State Police expert testified that in
her expert opinion, Williams’ profile matched the profile of the semen identified in the vaginal swabs
821
9/23/2012
20
4 Justices say this is 703 evidence, not TOMA The same 4 say – even if TOMA, not
testimonial
It plainly was not prepared for the primary purpose of accusing a targeted individual.
822
9/23/2012
21
a DNA report prepared by a modern, accredited laboratory “bears little if any resemblance to the historical practices that the Confrontation Clause aimed to eliminate.”◦ Scientists/technicians, each doing a small part of a
process.
This was not mere 703 evidenceThis was used for TOMA Irrelevant that it was a bench trial rather than a jury
823
9/23/2012
22
Cellmark's statements lacked the requisite "formality and solemnity" to be considered "'testimonial'" for purposes of the Confrontation Clause
Not sworn Not certified
824
9/23/2012
23
The report is identical to the one in Bullcoming (and Melendez-Diaz) in all material respects.
Rule 703? when a witness, expert or otherwise, repeats
an out-of-court statement as the basis for a conclusion, …the statement's utility is then dependent on its truth.
825
9/23/2012
24
For forensic reports?◦ Pre or post arrest?◦ Certified/sworn or not?◦ 703 material?
For all Crawford cases:◦ was a suspect already targeted?◦ was it a bench or a jury trial?
826
9/23/2012
25
notice-and-demand statutes require the prosecution to provide notice…of its intent to use an analyst's report as evidence at trial,
the defendant is given a period of time in which he may [demand presence]
827
9/23/2012
26
Dr. Blum did not handle Appellee's blood sample, prepare portions for testing, place the prepared portions in the testing
machines, or retrieve the portions after testing.
Dr. Blum did review the entire file, compare the results of the three independent
test printouts certify the accuracy of the results, and sign the report
828
9/23/2012
27
No Confrontation ViolationCommonwealth v. Yohe, 39 A.3d 381, 390 (Pa. Super. Ct. 2012)
surrogate testimony…could not convey what Caylor knew or observed about the events his certification concerned, i.e., the particular test and testing process he employed.
829
9/23/2012
28
witness who appears at trial and testifies satisfies the confrontation clause,
even though the witness lacks memory about the subject matter of their out-of-court statement.
830
9/23/2012
29
If the declarant remembers nothing, is there “cross?”
Goforth v. State, 70 So. 3d 174 (Miss. 2011) – No
State v. Santos, 238 P.3d 162, 177 (Haw. 2010) - Yes
831
9/23/2012
30
For the non-testifying child: Is there one test? Or does it depend on whether questioner is police or other?
Objective witness standard orobjective child?
Purpose of interrogation?◦ Emergency◦ Investigating past event
832
9/23/2012
31
If wholesale inability to answer Qs
Witness NOT available for cross
No testimonial hearsay
People v. Kirch, 239 Ill. 2d 452 (Ill. 2011)
833
9/23/2012
32
Intoxilizer calibration log is NOT testimonial Matthies v. State, Miss., No. 2010-CT-
00783-SCT, 4/12/12
Sixth Amendment right to confrontation was violated by the admission at trials of certifications regarding the statuses of their driver's or professional licenses
State v. Jasper, Wash, 3/15/12
834
9/23/2012
33
Co-conspirator’s statements are NOT testimonial
State v. Brist, Minn., 2/22/12
Detective: After interviewing several witnesses, I had no reason to believe anyone was involved except defendant.
Holding: Testimonial hearsay via the backdoor violates Crawford
Wheeler v. State, Del., 2/7/12
835
9/23/2012
34
Georgia Supreme Court sets procedure to apply notice and demand for child hearsay; and if defense demands, child must testify
Hatley v. State, Ga., 2/6/12
If preliminary hearing withoutcritical prior inconsistent statements
Witness unavailable at trialCross was inadequate InadmissibleState v. Torres, Ill. 2/1/12
836
9/23/2012
35
After conspiracy, Tom tells Sally:
“Me and Jules did the killing. It was wild.”
Statement is inadmissible against Jules.
837
9/23/2012
36
United States v. Berrios, 2012 U.S. App. LEXIS 7141 (3d Cir. V.I. Apr. 10, 2012)
limits Bruton to testimonial hearsay
8th Amendment “heightened reliability?”Due Process?Rule 403
838
top related