Confrontation CRAWFORD V WASHINGTON (2004)

Mike Dentonmichael.denton@co.travis.tx.us

512-854-9896

How Did We Get Here?Where Are We Going?

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense

United States ConstitutionSixth Amendment

In what % of Domestic Violence cases that you hear does the complaining witness fail to come to court or have a memory loss or refuse to testify or….?

ConfrontationDomestic Violence Trials

Marital Privilege/Absent Witness Witness Confrontation Hearsay Exceptions

Excited Utterances

(Zuliani v State, Tex Crim App ‘03)Present Sense ImpressionsMedical Treatment StatementsOther

Domestic Violence TrialsPre-Crawford

Ohio v. Roberts, 448 U.S. 56 (1980)

Where witness was unavailable, out of court statements were admissible over a confrontation objection IF:

Statement fell within firmly rooted hearsay exception OR

Statement had "indicia of reliability" such that admission of it comports with the "substance of the constitutional protection."

Pre-Crawford Law

Crawford

THE CASE

Crawford v. Washington

Confrontation Clause excludes testimonial statements unless: - declarant testifies OR - witness is unavailable and prior statement was cross-examined.Justice Scalia

124 S.Ct. 1354 (2004)

Crawford v. Washington541 U.S. 36 (2004)

FactsConvicted of stabbing a man he claimed tried to

rape his wifeRecorded statement made by Crawford’s wife to

policeWife unavailable at trial due to spousal privilege

Holding: Playing of out of court statement violated

defendant’s Confrontation rights

(Classic, Formal, Police “Interrogation”)

Crawford v. Washington541 U.S. 36 (2004)

Confrontation Clause bars admission of testimonial statements unless:Witness is available to testify, ORDefendant has had a prior opportunity for cross

Left open the question of what was testimonial

The Confrontation Right

What it is:Procedural right guaranteed by the Constitution

that the State must bring witnesses to court

Attaches at trial. Does not apply to:

Pretrial hearingsProbation revocations (CCA has not addressed)

(But PSI…)Parole revocations

SATISFYING CRAWFORD

1. Declarant Testifies 2. Unavailable + Opportunity for

Prior Cross3. Not testimonial 4. Forfeiture by wrongdoing

SATISFYING CRAWFORD

1. Declarant testifies

DECLARANT TESTIFIES

Crawford v. Washington

Confrontation Clause excludes testimonial statements

- unless declarant testifies

Justice Scalia

124 S.Ct. 1354 (2004)

Memory Problems At TrialMemory Problems At Trial

SATISFYING CRAWFORD

2.Unavailable witness-prior testimony was subject to cross by defendant.

PRACTICE POINT

Woman gives statement to police that boyfriend hit her

Later recants to defense investigator

Testifies at trial consistent with initial report but is impeached with recantation to investigator.

Woman gives statement to police that boyfriend hit her

Later recants to defense investigator

Testifies at trial consistent with initial report but is impeached with recantation to investigator.

Hypothetical

PRACTICE POINT

Is there a Confrontation problem with introducing her original statement to the police?

Is there a Hearsay problem with introducing her first statement to the police?

Is there a Confrontation problem with introducing her original statement to the police?

Is there a Hearsay problem with introducing her first statement to the police?

Hypothetical

The Unavailable Witness Sanchez v. State, 354 S.W.3d 476 (Tex. Crim. App. 2011)

Hearing to determine the admissibility of an outcry (Article 38.072 ) provides a defendant with an inadequate opportunity to cross-examine an outcry witness's credibility

Admitting testimony from such a hearing at a trial when the witness is unavailable violates the Sixth Amendment.

What is a prior opportunity to cross? Pre-Trial Bond Hearing Protective Order Disposition

Opportunity Waived Opportunity for “Good” Cross

SATISFYING CRAWFORD

DAVIS V. WASHINGTON

Davis v. Washington

2 Cases Combined.

Davis – 911 Call

Hammon – On Scene Stmt.

Forced to decide “Testimonial”

Justice Scalia

126 S.Ct. 2266 (2006)

DAVIS V. HAMMOND

NOT TESTIMONIAL

Not Testimonial

Circumstances Objectively Indicate

Primary Purpose

Police assistance to meet ongoing emergency.

Not Testimonial

Circumstances Objectively Indicate

Primary Purpose

Police assistance to meet ongoing emergency.

Test

TESTIMONIALTestimonial

Circumstances Objectively Indicate

Primary Purpose

Establish past events relevant to later criminal prosecution.

Testimonial

Circumstances Objectively Indicate

Primary Purpose

Establish past events relevant to later criminal prosecution.

DAVIS V. HAMMOND

1) Actually happening or in the past?

2) Ongoing emergency?

3) Questions needed to resolve emergency?

4) Level of formality.

Primary Purpose - factors:Primary Purpose - factors:

DAVIS V. WASHINGTON

Davis – 911 Call

Ms. McCottrey called 911, described events as they were happening and asked for police help to meet an ongoing emergency.

Ms. McCottrey called 911, described events as they were happening and asked for police help to meet an ongoing emergency.

Facts

DAVIS V. WASHINGTON

1) Statement made as events happening

2) Ongoing emergency

3) Questions needed to resolve emergency

4) Not formal.

911 Call - factors:911 Call - factors:

DAVIS V. WASHINGTON

DAVIS V. WASHINGTON

1) 911 call became testimonial;

2) Once operator gained info necessary to resolve emergency, remainder was testimonial

Not all of 911 call was o.k.:Not all of 911 call was o.k.:

HAMMON – ON SCENE

Hammon – On Scene

-Amy Hammon on porch when police arrive. Everything fine now. No Injuries Observed*.-Police separate people but husband tries to get to wife.-Wife signs affidavit with details saying husband punched her.

-Amy Hammon on porch when police arrive. Everything fine now. No Injuries Observed*.-Police separate people but husband tries to get to wife.-Wife signs affidavit with details saying husband punched her.

Facts

HAMMON – ON SCENE

1) Statement about past events

2) No ongoing emergency-separated (trial ct. findings?)

3) Questions about facts relevant to future criminal prosecution

4) Victim signed affidavit.

On Scene - factors:On Scene - factors:

The Lesson of Davis and Hammon

Similarities between casesDecided together, same issue, but different

outcomes

Analytical framework emerges:Temporal elementTo whom is the statement made? – LE or LE

agentFocus is on the objective purpose of the

statement or interview, not the declarant's expectations.

Michigan v. Bryant

Michigan v. Bryant

Michigan v. Bryant

Emergency – Important factor in primary purpose

Ongoing threat –Broader than initial victim

Perspective- Must consider both declarant and questioner.

Justice Sotomayor

131 S.Ct. 1143 (2011)

CONTEXT ALL Circumstances Ex. Left scene, weapon

used, known history, etc….

NOT TESTIMONIAL

STATEMENTS TO 3rd PARTIES

Crawford v. Washington“An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.”

Justice Scalia

PRACTICE POINTHypothetical

Boyfriend comes over to pick up 4 and 6yr old for visitation. He and victim argue. He punches her, threatens to kill her, rips phone out of the wall and then leaves with kids.

Victim runs next door, frantic about kids, tells neighbor what happened. Neighbor sees bruises. Victim calls 911 frantic about kids and tells dispatcher what happened.

Officers arrive 10 minutes later, she is still frantic about kids, tells what happened, they put out APB, find defendant with kids who are fine.

Boyfriend comes over to pick up 4 and 6yr old for visitation. He and victim argue. He punches her, threatens to kill her, rips phone out of the wall and then leaves with kids.

Victim runs next door, frantic about kids, tells neighbor what happened. Neighbor sees bruises. Victim calls 911 frantic about kids and tells dispatcher what happened.

Officers arrive 10 minutes later, she is still frantic about kids, tells what happened, they put out APB, find defendant with kids who are fine.

ANALYSIS

1. Relevant?

2. Hearsay? Exception?

3. Unavailable?

4. Testimonial/NonTestimonial?

5. Prior Opportunity to Cross?

6. Forfeiture?

REACTING TO THE PLAY

Leading Cases

Reynolds v. United States, (1879) in which the Court held that The Constitution does not protect an accused person from the legitimate consequences of his acts. It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege

Davis v Washington (2006) at 833 “one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.”

FORFEITURE-HISTORICAL

Reynolds v. U.S.The Constitution does not protect an individual against the legitimate consequences of his own wrongful acts. “[W]hen absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated.”Chief Justice Waite

98 U.S. 145 (1879)

Crawford

“The Rule of Forfeiture by Wrondoing…extinguishes Confrontation claims on essentially equitable grounds.”

- Crawford, 541 U.S. at 62

“The Rule of Forfeiture by Wrondoing…extinguishes Confrontation claims on essentially equitable grounds.”

- Crawford, 541 U.S. at 62

GILES CASE

Giles v. California

Giles killed his former girlfriend to keep her from cheating on him. State sought to introduce her prior statements to police.

Murder alone not enough to show forfeiture.Justice Scalia

128 S.Ct. 2678 (2008)

Giles v. California128 S. Ct. 2678 (2008)

Facts:Prosecution for murderWitness unavailable to testify about prior assaults

because she had been murdered

Holding: Forfeiture only occurs when defendant’s actions

show a specific intent to prevent witness from testifying

Started to resolve the question in Crawford regarding what constitutes forfeiture – arose again in Davis

INTENT

The proponent must show an INTENT to procure the unavailability of the

witness.

The proponent must show an INTENT to procure the unavailability of the

witness.

Giles – Unanswered Questions

Case law not well developed – only 250 cases in the nation since Giles

Burden of proof – preponderance or clear and convincing?

Never squarely addressed, but some dicta in Davis

Giles – Burden of Proof

“We take no position on the standards necessary to demonstrate such forfeiture, but federal courts using Federal Rule of Evidence 804(b)(6), which codifies the forfeiture doctrine, have generally held the Government to the preponderance-of-the-evidence standard, see, e.g., United States v. Scott, 284 F.3d 758, 762 (C.A.7 2002).”Davis, 547 U.S. at 833.

Interestingly, court was looking at the doctrine as codified by the Federal Rules of Evidence

Most waivers of constitutional rights require proof by clear and convincing evidence

Giles – Unanswered Questions

Level of action necessary to lead to forfeiture?Is abuse itself traumatic enough to argue

forfeiture?

Recognized in GilesEarlier 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.”

Giles – Unanswered Questions

Type of proof necessary to show forfeiture?Often a pre-trial issue, rules of evidence do not

apply

“Moreover, if a hearing on forfeiture is required, Edwards, for instance, observed that ‘hearsay evidence, including the unavailable witness's out-of-court statements, may be considered.”

Davis, 547 U.S. at 833

Evidence available to prosecutors:Jail calls, letters, cell phone records

Forfeiture by Wrongdoing

What it is:

Client has right to have witness brought to court, but can lose that right if:

He/she engaged in wrongful conduct specifically for the purpose of preventing the witness from testifying

Encourages others to do so

PRACTICE POINT

1) Witness is unavailable – 804(a)

2) Act(s) by defendant

3) Intended to make witness unavailable

4) Act(s) made witness unavailable.

Forfeiture

What must you show?What must you show?

No need to prove the defendant threatened the victim… Just that the defendant intentionally committed an act(s) to keep the witness away or not tell the truth

GILES CASE

Domestic Abuse•Intended to dissuade victim from outside help

•Includes conduct to prevent testimony to police or cooperation

Homicide Only?

•Abuse ends in homicide

•May show crime expressed intent to isolate victim and stop reporting

Factors

•Earlier abuse or threats intended to dissuade victim from reporting

•Ongoing criminal proceedings where victim expected to testify.

Quotes from Giles

“It would make no sense to suggest that the oppressing defendant miraculously abandoned the dynamics of abuse.” - Souter, Giles, at 508

“Earlier abuse, or threats of abuse, intended to dissuade the victims from reporting to outside help would be highly relevant.” – Giles, at 506

“It would make no sense to suggest that the oppressing defendant miraculously abandoned the dynamics of abuse.” - Souter, Giles, at 508

“Earlier abuse, or threats of abuse, intended to dissuade the victims from reporting to outside help would be highly relevant.” – Giles, at 506

Justice Souter points the way on Domestic Violence with prior incidents in his concurring opinion in Giles v. California

“The element of intention would normally be satisfied by the intent inferred on the part of the domestic abuser in the classic abusive relationship, which is meant to isolate the victim from outside help, including the aid of law enforcement and the judicial process. If the evidence for admissibility shows a continuing relationship of this sort, it would make no sense to suggest that the oppressing defendant miraculously abandoned the dynamics of abuse the instant before he killed his victim, say in a fit of anger.”

Or the instant before he contacted in violation of an order of protection in an attempt to isolate the victim from the judicial process and aid of law enforcement

Forfeiture

Context

Totality

Context

Totality

Context and Totality

•Pre-Incident

•Incident

•Post-Incident

•Pre-Incident

•Incident

•Post-Incident

PRACTICE POINT

Police reports

Friends/neighbors

Jail calls

Emails/text messages/letters

Court records

Police reports

Friends/neighbors

Jail calls

Emails/text messages/letters

Court records

Forfeiture

Sources of Forfeiture Info:Sources of Forfeiture Info:

PRACTICE POINT

1. Is the victim unavailable?

2. Is there evidence of prior history of abuse?

3. Are there prior/current attempts to dissuade cooperation?

4. Were there ongoing criminal proceedings where victim was going to testify at time of threats?

5. Other Court Orders? Protective Orders, Violated Orders

6. The Offense Itself

Considerations

Things to consider:Things to consider:

Common Evidence Producedin Forfeiture Hearings

Prior Incidents of Domestic Violence (Patterns of Abuse)

Prior Court Orders, Protective Orders, Bond Conditions

Violations of Court Orders Jail Calls Letters, Text Messages, Cards Photos 911 Calls Statements of Defendant/Witness at scene

CLOSING THOUGHTS

PROTECT THE RECORD

1) Trial court should make necessary findings of fact

2) Remember original purpose of particular hearsay rule

6th AM DOES NOT APPLY

6th AMENDMENT DOES NOT APPLY

1) Civil proceedings

2) Probation revocation (But..)

3) Sentencing hearings?

4) Restitution hearings

5) Suppression hearings

Confrontation does NOT apply:Confrontation does NOT apply:

6th AMENDMENT DOES NOT APPLY

6) Probable Cause hearings.

7)Hearsay offered by defendant.

Confrontation does NOT apply:Confrontation does NOT apply:

OTHER ISSUES

NOT OFFERED FOR TRUTH

Victim Fear-OK

Victim’s statements of fear admissible

Song - OK

“Corrido” song describing victim’s death found in Def. possession admissible

(People v. Williams 2004) (People v. Gatica 2004)

OTHER ISSUES

IDENTITY OF PERPETRATOR

Under 803(4), the identity of the perpetrator is not ordinarily admissible.

-Can be admissible if there is MEDICAL reason for info.

-Must lay foundation.

Under 803(4), the identity of the perpetrator is not ordinarily admissible.

-Can be admissible if there is MEDICAL reason for info.

-Must lay foundation.

Admissibility

IDENTITY OF PERPETRATOR

What foundation could be established with doctor to show that the identity of the perpetrator IS relevant to medical diagnosis or treatment?

- Standard of care/forms

- Physician liability for safety

What foundation could be established with doctor to show that the identity of the perpetrator IS relevant to medical diagnosis or treatment?

- Standard of care/forms

- Physician liability for safety

Admissibility

MEDICAL DIAGNOSIS

Nebraska-OK

Child said Defendant put his finger in her “peepee”

Ohio - OK

Victim statement to police –testimonial.

Statement to nurse non-testimonial

(State v. Vaught 2004) (State v. Stahl 2005)

Mass - OK

Child statement to doctor OK even if police at hospital

(Comm. v. DeOlivera 2006)

OTHER ISSUES

EXPERT OPINION

1) Expert may rely on hearsay

2) No problem in pathologist relying on autopsy report of another

3) Question whether expert may be “conduit” of inadmissible hearsay.

Considerations:Considerations:

OTHER ISSUES

DYING DECLARATIONS

Crawford v. WashingtonDying declarations are “sui generis” and were admitted at the time the Constitution was adopted.

Justice Scalia

OTHER ISSUES

ADMISSIONS

Wisconsin-OK

Defendant’s statements to his girlfriend OK.

11th Cir. - OK

Defendant’s recorded calls with informant OK even without informant testifying.

7th Cir. -OK

Defendant’s taped statements with informant OK

(State v. Manuel 2004) (U.S. v. Valdes 2007)

(U.S. v. Tolliver 2006)

CRAWFORD NOT RETROACTIVE

Whorton v. BocktingCrawford is not retroactive on collateral review.

It does not apply to convictions that were already “final” as of March 8, 2004.Justice Alito

127 S.Ct. 1173 (2007)

STATES CAN DECIDE

Danforth v. Minnesota

The states may give broader retroactivity to new rules of criminal procedure than that given by federal courts.

Justice Stevens

128 S.Ct. 1029 (2008)

LAB REPORTS

Melendez-Diaz v. Mass

DRUG LAB REPORT TESTIMONIAL

Justice Scalia

129 S.Ct. 2527 (2009)

MELENDEZ-DIAZMajority

Certified lab reports = testimonial statements

There are no neutral witnesses against accused

Notice and Demand – O.K? Defendants must assert rts.

Majority

Certified lab reports = testimonial statements

There are no neutral witnesses against accused

Notice and Demand – O.K? Defendants must assert rts.

MELENDEZ-DIAZ

Minority – (Kennedy)

Concerned about autopsies

Concerned about availability of witnesses

Analysts are neutral and not at scene.

Minority – (Kennedy)

Concerned about autopsies

Concerned about availability of witnesses

Analysts are neutral and not at scene.

MELENDEZ-DIAZ

Note 2 Majority:

“ Other [cases cited by the dissent] are irrelevant since they involved medical reports created for treatment purposes which would not be testimonial under our decision today.”

Note 2 Majority:

“ Other [cases cited by the dissent] are irrelevant since they involved medical reports created for treatment purposes which would not be testimonial under our decision today.”

Bullcoming v. New Mexico 2011

Bullcoming v. New Mexico 2011

Facts

DUI Lab test

Analyst issued certified report

Analyst put on unpaid leave

Supervisor testified about general practices of lab/testing

Facts

DUI Lab test

Analyst issued certified report

Analyst put on unpaid leave

Supervisor testified about general practices of lab/testing

Bullcoming v. New Mexico 2011

“A document created solely for an evidentiary purpose…made in aid of a police investigation, ranks as testimonial.”

“A document created solely for an evidentiary purpose…made in aid of a police investigation, ranks as testimonial.”

Bullcoming

Bullcoming v. New Mexico

Analyst – Defendant had a 6th Amendment right to cross analyst

Testing – Not simple. Subject to human error at each step

Surrogate- Witness did not observe test.

Justice Ginsburg

131 S.Ct. 2705 (2011)

Questions

1. Tests used by experts – Xrays, MRI, Lab See Melendez-Diaz, n.2

2. Autopsies- Doctor who did not perform tests

3. Chain of custody- foundation

4. Certificate of No Record- room for human error?

Witness ScreenedWitness Screened

Defendant Screened from Witness

Coy v. Iowa (1988)Placing screen between defendant and victim violated the defendant’s 6th Amendment right to confrontation.

Justice Scalia

Defendant Screened from Witness

Maryland v. Craig (1990)Closed circuit testimony by

victim permissible where:

(1) Necessary to further important public policy; and (2) reliability assured.

Who dissented?Justice O’Connor

Defendant Screened from Witness

Crawford v. Washington

Confrontation is a specific means of testing reliability.

Abandoned reliability as to testimonial hearsay.

Justice Scalia

124 S.Ct. 1354 (2004)

2-Way Video Not Enough

U.S. v. BordeauxChild’s testimony via 2-way video was “virtual” and violated 6th Amendment because may have diluted truth inducing effect. Thus, admission of prior interview violated Confrontation Clause

Judge Arnold

(8th Cir. 2005)

Forensic Interviews

Forensic interviews subject to both hearsay and Confrontation objectionsClearly testimonial, Coronado v. State, 351 S.W.3d

315 (CCA 2011)

Conflict with statutes that allow for admission of videotaped statements or alternative procedures if child witness is deemed unavailableReasons: emotional, mental, competency

38.071 After Crawford

Rangel v. State, 250 S.W.3d 96 (Tex.Crim.App. 2008) Court admitted forensic video over Confrontation objection CCA held issue not preserved because defense counsel did

not avail himself of the interrogatory procedure

Unresolved questions after Rangel: What manner and means of cross will satisfy confrontation

right? What steps defendant must take to preserve error

The Answer: Coronado v. State, 351 S.W.3d 315 38.071 held unconstitutional – interrogatories not sufficient

cross-examination

Coronado v. State, 351 S.W.3d 315

Court of Criminal Appeals (Cochran, J.)

“Although we agree that there must be balance between a defendant's right to confrontation and a societal need to protect fragile and traumatized child victims, that balance cannot constitutionally be struck by the method set out in Section 2 of Article 38.071. On federal constitutional matters, we are obliged to follow the dictates of the United States Supreme Court regardless of our own notions.”