The Crawford Rule Evidence

In Crawford v. Washington, 158 L. Ed. 2d 177 (2004), the defendant was charged with stabbing a man whom he believed had raped his wife. ( Crawford v. Washington, 124 S. Ct. at 1356). The police arrested defendant, and took both defendant and his wife, Sylvia Crawford, to the police precinct. The police read defendant and his wife Miranda warnings, interrogated them, and tape recorded their interrogation of Sylvia Crawford. ( Id. at 1357). Sylvia Crawford could not testify at defendant's trial because the Washington state marital privilege prevented it. At trial, the prosecution introduced into evidence the tape recording of the interview with Sylvia Crawford as a statement against her penal interest, based on her admission in that statement that she had facilitated the assault. ( Id. at 1358). Defendant challenged the admission of this statement on the ground that his constitutional right to confront his wife, who was a witness against him, had been violated. ( Id.). Applying Ohio v. Roberts, the Washington State Supreme Court upheld the admission into evidence of the defendant's wife's statement. The United States Supreme Court granted certiorari and reversed, overruling its two-decades old decision in Ohio v. Roberts. The centerpiece of the Court's opinion was its detailed historic analysis of the early common law right to confrontation in England and the colonies. The Court found that the intent of the framers of the Constitution in establishing the right to confrontation in criminal cases was to eliminate the practice of using at trial ex parte statements made against the accused to justices of the peace, whose job was to investigate and prosecute cases for the government. ( Id. at 1359-1364). The Crawford Court held that any time a witness makes a testimonial statement against the accused, the accused has a constitutional right to confront that witness. A testimonial statement, therefore, may not be admitted at trial unless the declarant of the statement is unavailable and the defendant has had a prior opportunity to cross-examine him or her. ( Id. at 1374). In Crawford, the Court defined a witness at trial as someone who "bears testimony," and it further defined "testimony" as "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." ( Id. at 1364, quoting 1 N. Webster, An American Dictionary of the English Language). In its decision, however, the Court declined to provide a definition of the phrase "testimonial statement." Instead, the Court noted that "various formulations" of a "core class" of testimonial statements exist. ( Id. at 1364 ["ex parte in-court testimony or its functional equivalent - that is, materials such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that the declarant would reasonably expect to be used prosecutorially"; "extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions"; "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial"] ). The Court declined to adopt expressly any one of the proposed formulations, instead defining the term by example: We leave for another day any effort to spell out a comprehensive definition of "testimonial." 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. ( Id. at 1374). Reviewing the various formulations, the "common nucleus," as the Court described it ( id. at 1364), for present purposes, would appear to be that a testimonial statement is a formal statement which the declarant would reasonably expect to be used in future judicial proceedings. Crawford makes clear that prior testimony at a preliminary hearing, before a grand jury, or at a formal trial are always testimonial statements. The precise contours of what constitutes a "police interrogation" remain unclear, however, as the Court did not expressly define interrogation in this context. ( Id. at 1365, n.4). Instead, the Court provided some general guidance on how to determine what constitutes an interrogation. First, the Court specified that the term "interrogation" is to be used "in its colloquial, rather than any technical legal sense." (Id.). The Court also held that a declarant's statement "knowingly given in response to structured police questioning" is testimonial. (Id. ). By contrast, the Court opined that statements made "unwittingly" to an agent of the government do not violate the Confrontation Clause. ( Id. at 1368 [observing that Bourjaily v. United States, 483 U.S. 171, 97 L. Ed. 2d 144, 107 S. Ct. 2775 [1987], involving statements unwittingly made to a confidential FBI informant in furtherance of a conspiracy, although not decided under the proper standard, had the correct outcome]). The Court's discussion suggests that for a statement made in response to interrogation to be testimonial, it is necessary for the declarant to be aware that his or her statement is likely to be used in a future judicial proceeding. The Court also suggested that the behavior of government officials is relevant to the determination of whether an interrogation has occurred. The Court found that police interrogations bear a "striking resemblance" to pre-trial examinations by justices of the peace at common law, notwithstanding their unsworn nature. ( Id. at 1364). Further, the Court pointed out that there is a "unique potential for prosecutorial abuse" when government officers are involved "in the production of testimony with an eye toward trial." ( Id. at 1367, n. 7). Crawford, therefore, suggests that a testimonial statement in the context of a police interrogation is one which the declarant makes knowingly in response to structured questioning which the government is undertaking in furtherance of the prosecution of the defendant, or under some other circumstances which renders the statement a "formal" declaration. In Crawford, the Court also held that certain types of statements are never testimonial, based on the framers' intent to exclude them from the purview of the Confrontation Clause. ( Id. at 1367). Specifically, the Court declared that out-of-court statements properly admitted under the business records and co-conspirators' exceptions to the hearsay rule are not testimonial, and thus need not satisfy the requirements of Crawford as a pre-requisite to their admission in evidence. (Id.). The Court also suggested that because the hearsay exception for dying declarations existed at common law, dying declarations may "the one deviation" from the Crawford rule prohibiting the admission of testimonial hearsay at trial. ( Id. at 1367, n.6). Crawford makes clear that the test in Roberts, which "conditioned the admissibility of all hearsay evidence on whether it [fell] within a 'firmly rooted hearsay exception' or [bore] 'particularized guarantees of trustworthiness,'" was not "faithful to the original meaning of the Confrontation Clause." ( Id. at 1369 ). The Crawford Court instructed that the framers did not mean to leave "Sixth Amendment's protection" to "the vageries of the rules of evidence, much less to amorphous notions of 'reliability.'" ( Id. at 1370). Accordingly, it held that "where non-testimonial hearsay is at issue," states have "flexibility in the development of hearsay law," but "where testimonial hearsay is at issue, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." ( Id. at 1374). Thus, under Crawford, analysis regarding whether the admission of an out-of-court statement violates a defendant's right to confront witnesses turns on whether the statement is testimonial, rather than on whether the statement falls within an exception to the rule against hearsay.