evidentiary issues and the crawford test
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.
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Crawford, Hearsay and Confrontation
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Isla Fruchter, Kevin Harden, and Jules Epstein
Face to FaceScope of CrossHEARSAY
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Trials are about witnesses who tell facts and are cross-examined.
When hearsay replaces a witness, we cannot cross-examine.
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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.
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Only testimonial statements cause the declarant to be a "witness" within the meaning of the Confrontation Clause.”
Davis v. Washington, (U.S. 2006)
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Ongoing Emergency statements are non-testimonial
Post-Emergency descriptions of past events are testimonial
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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.
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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
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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.
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Bryant and Domestic Violence:
Bryant retains the basic domestic violence analysis of Davis and Hammond.
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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."
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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.
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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?
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Analyst Caylor tested blood and wrote a certificate that included:
Reason for stop Time of blood draw
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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.
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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.
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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?
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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.
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RapeVaginal swab sent to CellmarkCellmark returns a report with a “deduced male DNA profile.”
The deduced profile matches Williams
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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
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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.
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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
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Cellmark's statements lacked the requisite "formality and solemnity" to be considered "'testimonial'" for purposes of the Confrontation Clause
Not sworn Not certified
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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.
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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?
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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]
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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
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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.
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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.
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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
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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
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If wholesale inability to answer Qs
Witness NOT available for cross
No testimonial hearsay
People v. Kirch, 239 Ill. 2d 452 (Ill. 2011)
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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
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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
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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
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After conspiracy, Tom tells Sally:
“Me and Jules did the killing. It was wild.”
Statement is inadmissible against Jules.
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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
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