When Can the Rule Pertaining to Inadmissibility of Hearsay Statement Be Applied Retroactively ?
In Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), the Supreme Court held that a testimonial hearsay statement is inadmissible at trial unless the declarant is shown to be unavailable and the party against whom the statement is admitted had an opportunity for cross-examination. Id. at 68. Because we find that Crawford does not apply retroactively, we deny the petition for a writ of habeas corpus.
In deciding whether a new rule should apply retroactively, this Court balances two important considerations: (1) the finality of decisions; and
(2) the fairness and uniformity of the court system. Witt v. State, 387 So. 2d 922, 925 (Fla. 1980).
In Witt v. State, 387 So. 2d 922, 925 (Fla. 1980), the court stated that a new rule of law will not apply retroactively unless the new rule "(a) emanates from this Court or the United States Supreme Court, (b) is constitutional in nature, and (c) constitutes a development of fundamental significance." Id. at 931.
The rule in Crawford meets the first two Witt factors, as it was a decision of the United States Supreme Court concerning the Sixth Amendment's Confrontation Clause.
Under Witt, a decision is of fundamental significance when it either places "beyond the authority of the state the power to regulate certain conduct or impose certain penalties" or when the rule is "of sufficient magnitude to necessitate retroactive application as ascertained by the three-fold test of Stovall v. Denno, 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967 (1967), and Linkletter v. Walker, 381 U.S. 618, 14 L. Ed. 2d 601, 85 S. Ct. 1731 (1965)." Witt, 387 So. 2d at 929.
The Crawford rule did not change the power of the State to regulate certain conduct or impose certain penalties; rather, it is a procedural rule that controls the admissibility of testimonial hearsay.
Thus, the Crawford rule can only apply retroactively under Florida law if retroactive application is deemed necessary after assessing the Stovall and Linkletter factors, which are:
"(a) the purpose to be served by the new rule;
(b) the extent of reliance on the old rule; and (c) the effect on the administration of justice of a retroactive application of the new rule." Id. at 926.
The first factor weighs against retroactivity. Crawford overruled the decision in Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980). Crawford, 541 U.S. at 68.
Roberts permitted courts to admit testimonial hearsay, provided the statements bore "adequate 'indicia of reliability.'" 448 U.S. at 66.
In overruling Roberts, the United States Supreme Court considered the history of the confrontation clause and concluded that testimonial hearsay could only be admitted, in accordance with the intentions of the framers of the Sixth Amendment, upon a demonstration that the declarant is unavailable and that a defendant had a prior opportunity for cross-examination. Id. at 1374.
This rationale for the new rule weighs against its retroactive application because the rule's purpose is not to improve the accuracy of trials or even to improve the reliability of evidence.
The Supreme Court noted that the confrontation clause does not require that evidence be reliable "but that reliability be assessed in a particular manner." Crawford, 541 U.S. at 61; see Windom v. State, 886 So. 2d 915, 951 (Fla. 2004) (Cantero, J., specially concurring) (citing Allen v. Hardy, 478 U.S. 255, 92 L. Ed. 2d 199, 106 S. Ct. 2878 (1986), for proposition that retroactive application is appropriate if new rule is designed to enhance accuracy of criminal trials).
The second factor also weighs against retroactive application. the rule in Roberts was relied on by trial courts for over twenty years. Cf. State v. Callaway, 658 So. 2d 983, 987 (Fla. 1995) (fact that old rule existed for short time weighed in favor of retroactive application).
The Roberts reliability factors were the only method of admission for testimonial hearsay statements; thus, much testimony was likely admitted under them.
State v. Abreu, 837 So. 2d 400, 402 (Fla. 2003);
Farina v. State, 679 So. 2d 1151, 1157 (Fla. 1996), receded from by Franqui v. State, 699 So. 2d 1312, 1320 (Fla. 1997);
Perez v. State, 536 So. 2d 206, 209 (Fla. 1988);
Glendening v. State, 536 So. 2d 212, 217 (Fla. 1988). Indeed, "Crawford has changed confrontation analysis enormously.
Its concrete impact was immediate and substantial in both appellate and trial courts on the evidence rendered inadmissible." Robert P. Mosteller, Crawford v. Washington: Encouraging and Ensuring the Confrontation of Witnesses, 39 U. Rich. L. Rev. 511, 512 (2005).