Confrontation Clause History

In Crawford v. Washington (2004) 541 U.S. 36, the Supreme Court held that admission of a "testimonial" hearsay statement by a declarant who is not available at trial violates the Sixth Amendment confrontation clause unless the defendant had a prior opportunity to cross-examine the declarant. Crawford also held that a statement obtained by a police officer in the course of an interrogation is testimonial. Finally, Crawford held the admission of such a statement violates the Sixth Amendment even if the statement would be admissible hearsay under the jurisdiction's rules of evidence and even if it bears indicia of reliability. (Crawford, supra, 541 U.S. at pp. 52-54, 59, 68.) The Court found the meaning of the confrontation clause best expressed in the English common law antecedents of the clause and in colonial practices and decisions generally contemporaneous with the clause. (Crawford v. Washington, supra, 541 U.S. at pp. 42-51.) The court's historical review led to two conclusions. First, " the principal evil at which the confrontation clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." (Id. at p. 50.) Historically, such "ex parte examinations" were conducted by judicial officers or other government officials, the defendant not being present and having no right to confront the witness. (Ibid.) This historical perspective, as well as the text of the clause, "reflected an especially acute concern with a specific type of out-of-court statement" (id. at p. 51), that is, a "testimonial" statement (ibid.). The second conclusion drawn by the court was "that the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." (Id. at pp. 53-54.) The court declined to provide "a comprehensive definition of 'testimonial.' " (Crawford v. Washington, supra, 541 U.S. at p. 68.) However, it did provide certain minimum guidelines: "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. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed." (Id. at p. 68.) In referring to "police interrogations," the court "used the term 'interrogation' in its colloquial, rather than any technical legal, sense." (Id. at p. 53, fn. 4.) Moreover, besides these discrete categories, the court also provided some suggestive, less defined guidelines. Thus, the court discussed the definitions of the term "testimonial" proffered in the Crawford briefing and in Justice Thomas's concurring opinion in White v. Illinois (1992) 502 U.S. 346, (conc. opn. of Thomas, J.). The court stated: "Various formulations of this core class of 'testimonial' statements exist: 'ex parte in-court testimony or its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants 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,' . These formulations all share a common nucleus and then define the clause's coverage at various levels of abstraction around it." (Crawford, supra, 541 U.S. at pp. 51-52.) Beyond this discussion of what is testimonial, Crawford's reasoning provides guidance as to what is not testimonial. Crawford distinguished "an off-hand, overheard remark" from "the civil-law abuses the Confrontation Clause targeted." (Crawford v. Washington, supra, 541 U.S. at p. 51.) Also, the court observed that the text of the clause referred "to 'witnesses' against the accused--in other words, those who 'bear testimony.' 'Testimony,' in turn, is typically 'a solemn declaration or affirmation made for the purpose of establishing or proving some fact.' 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." (541 U.S. at p. 51.) In discussing the holding of White v. Illinois, supra, 502 U.S. 346, a "case arguably in tension" with Crawford because it upheld introduction of "statements of a child victim to an investigating police officer ... as spontaneous declarations" (Crawford v. Washington, supra, 541 U.S. at p. 58, fn. 8), the court strongly implied that statements qualifying under that historical hearsay exception were not testimonial. The court stated: "It is questionable whether testimonial statements would ever have been admissible on that ground spontaneous declarations in 1791; to the extent the hearsay exception for spontaneous declarations existed at all, it required that the statements be made 'immediately upon the hurt received, and before the declarant had time to devise or contrive any thing for her own advantage.' " (Ibid.) The court gave other examples of nontestimonial statements. Thus, the court noted that historical exceptions to the hearsay rule did not expand the scope of out-of-court statements admissible against a criminal defendant, because "most of the hearsay exceptions covered statements that by their nature were not testimonial--for example, business records or statements in furtherance of a conspiracy." (Id. at p. 56.) The only deviation was the exception for dying declarations, and the court declined to decide whether the Sixth Amendment incorporated this hearsay exception so as to permit use of testimonial statements. (541 U.S. at p. 56, fn. 6.)