Evidence Notes File 4-C

LAW 6330 (4 credits)
Professor Pedro A. Malavet

4.0 Hearsay Exclusions and Exceptions (File 3)


4.00 Hearsay: Statements to Physicians,

This material will NOT be covered because Crawford takes up so much time now.

Case: Blake v. State


Past Recollection Recorded


Case: Ohio v. Scott


4.00 Hearsay: Business Records, Not covered in the Crawford era.

    • Note that both Petrocelli and Norcon raise two basic questions:
      (1) What exactly fits within FRE 803(6)? AND
    • (2) Double-Hearsay: statements found in business records which are not themselves admissible under FRE 803(6) may be admissible if a second exception can be found to apply.
  • What makes them messy is that it is often difficult to tell which part of the opinions covers which question.

Case: Petrocelli v. Gallison

    • [1] This case shows that the source of information must be a person acting within the scope of his duties[, in order to avoid a hearsay-within-hearsay objection and properly to fit within 803(6)].
    • Malavet
      • Note further that there is a distinction between the "regular practice of that business activity" language included in  803(6), and the "scope of employment" provisions in the admissions doctrine. It is possible for someone to act within the scope of employment for admissions purposes, but not for regular business practice purposes.
    • [2] [However, as to the hearsay-within hearsay problem,] the opinion suggests that it may be possible to combine exceptions to admit double hearsay.

Case: Norcon v. Kotowski

  • Malavet
    • Petrocelli was intended to show that statements found in a business record must be [a] recorded and [b] made within the scope of the business' employment, in order to fit within FRE 803(6). In order to be made within the scope of employment, the sources of information contained in a business record must be, generally, [a] employees [b] who are acting within the scope of their employment. If that is not the case, even if the document itself fits within 803(6), the recorded statements will be treated as hearsay within hearsay and require an independent exemption/exception.

4.11 Hearsay: Declarant "Unavailable"?

Rule 804. Hearsay Exceptions; 
Declarant Unavailable 

The Unavailability Requirement [303]
FRE 804(a) + FRE 804(b)
--> unavailability helps a statement overcome a hearsay objection only if it fits one of the five exceptions in FRE 804(b).

  • [CB] As a glance at FRE 804(a) reveals, "unavailability as a witness" does not mean the declarant must be physically unobtainable -hiding or beyond reach of subpoena. The requirement is satisfied if his testimony is unobtainable. Even if someone is in court, he is unavailable for purposes of the Rule if he cannot remember, refuses to testify, or properly invokes a privilege.
  • [CB] The trial judge determines whether the declarant is unavailable under FRE 804(a), meaning that the question is one of "admissibility" under FRE 104(a). ***
  • [CB] Claim of privilege. Under FRE 804(a)(1) a declarant is unavailable if exempted from testifying by court order on ground of privilege. In criminal cases, often witnesses invoke the Fifth Amendment privilege against self-incrimination.
  • The Rule contemplates an actual test: Declarant takes the stand, claims a privilege, and the court sustains his position. Generally a party hoping to take advantage of this form of unavailability cannot simply represent that the declarant would claim a privilege if called, see United States v. Pelton, 578 F.2d 701, 709-710 (8th Cir.), cert. denied, 439 U.S. 964 (1978). But sometimes this hardnosed approach is relaxed. ***
  • [CB] Refusal to testify. FRE 804(a)(2) contemplates actual refusal: On the stand, declarant declines to answer and does not cooperate when ordered to answer. An effort to secure his cooperation is essential, and the Rule contemplates a threat of contempt. ***
  • [CB] Lack of memory. A declarant who testifies that he does not remember "the subject matter" of his prior statement is unavailable under FRE 804(a)(3). ***
  • [CB] Death, illness, infirmity. Under FRE 804(a)(4), determining unavailability due to death has not posed problems, but the same is not always true of "illness or infirmity." A minor ailment from which speedy recovery is expected should not satisfy the requirement, even though the declarant cannot attend trial on a given day. In this situation it should be possible to adjourn the proceedings to allow time for recovery. But a serious illness of uncertain prognosis is likely to be enough. Context is important:
  • [CB] In some settings, mental condition makes a witness unavailable to testify even though the modern view is that insanity does not disqualify one from giving evidence. ***
  • [CB] Unavoidable absence. Oversimplifying for the moment, a declarant is unavailable under FRE 804(a)(5) if her presence cannot be obtained at trial by subpoena or "other reasonable means."
  • [CB] Even a witness beyond reach of subpoena is not necessarily unavailable, for "other reasonable means" may secure her presence. Occasionally courts expect parties simply to invite her to, attend, and in the case of the government in criminal cases, to offer to pay travel expenses. See Government of Virgin Islands v. Aquino, 378 F.2d 540, 549-552 (3d Cir. 1967) (in trial for rape of stewardess on Norwegian vessel, court erred in admitting her preliminary hearing testimony; government did not show she had left the country; even if she had, government "would be required to reimburse her for her expenses of travel and subsistence" if necessary to secure her voluntary appearance).
  • [CB] Procurement or wrongdoing. A party who procures the absence of a declarant should not be allowed to invoke one of the exceptions that absence normally brings into play. The last sentence of FRE 804(a) so provides, though it is seldom invoked.
  • Malavet
    • Procuring: Distinguish this situation from Barber. In Barber the issue was simply whether or not the government had made enough good faith efforts to obtain the testimony that it wanted to substitute.
  • [CB]*** Where the government threatens prosecution or refuses to immunize the witness, is it procuring her unavailability? Probably the answer is no, for the power to grant immunity is viewed as a government tool administered by the U.S. Attorney. But some decisions hint that sometimes a refusal to immunize might be viewed as abuse, United States v. Morrison, 535 F.2d 223, 225-229 (3d Cir. 1976), and that courts might play a role in deciding whether immunity should be granted, United States v. Herman, 589 F.2d 1191, 1204 (3d Cir. 1978), cert. denied, 441 U.S. 913 (1979).


Case: Barber v. Page

  • Malavet
    • 1. The prosecution has an obligation to make good faith efforts to produce the witness
    • 2. The right of the defense to cross-examine, preferably at trial
    • This rule is constitutional in nature, coming from the Sixth Amendment confrontation clause.
  • [CB] [Jack Barber and Charles Woods are tried for armed robbery in state court in Oklahoma. At a preliminary hearing, a lawyer named Parks had represented both defendants. There Woods waived his privilege against self-incrimination, and Parks withdrew as his attorney but continued to represent Barber. In his testimony at that hearing, Woods incriminated Barber, and Parks did not cross-examine, although a lawyer for another defendant did. When Barber was tried seven months later, Woods was in federal prison in Texas (about 225 miles away). Over Barber's objection, the state introduced a transcript of the testimony given by Woods at the preliminary hearing. ***]
  • [CB] We start with the fact that the State made absolutely no effort to obtain the presence of Woods at trial other than to ascertain that he was in a federal prison outside Oklahoma. It must be acknowledged that various courts and commentators have heretofore assumed that the mere absence of a witness from the jurisdiction was sufficient ground for dispensing with confrontation on the theory that "it is impossible to compel his attendance, because the process of the trial Court is of no force without the jurisdiction, and the party desiring his testimony is therefore helpless."
  • [CB] Whatever may have been the accuracy of that theory at one time, it is clear t hat at the present time increased cooperation between the States themselves and between the States and the Federal Government has largely deprived it of any continuing validity in the criminal law.4 [Footnote 4 describes the common law and statutory writs]
  • [Statutory and Common Law Writs:]
    • [CB] []For example, in the case of a prospective witness currently in federal [360] custody, 28 U.S.C. §2241(c)(5) gives federal courts the power to issue writs of habeas corpus ad testificandum at the request of state prosecutorial authorities. In addition, it is the policy of the United States Bureau of Prisons to permit federal prisoners to testify in state court criminal proceedings pursuant to writs of habeas corpus ad testificandum issued out of state courts.
    • [CB] In this case the state authorities made no effort to avail themselves of either of the above alternative means of seeking to secure Woods' presence at petitioner's trial. ***  
  • [Must Make Good Faith Efforts]
    • [CB] *** Yet as Judge Aldrich, sitting by designation, pointed out in dissent below, "the possibility of a refusal is not the equivalent of asking and receiving a rebuff." In short, a witness is not "unavailable" for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial. The State made no such effort here, and, so far as this record reveals, the sole reason why Woods was not present to testify in person was because the State did not attempt to seek his presence. The right of confrontation may not be dispensed with so lightly. [6th Am.]
  • [Waiver?]
    • [CB] The State argues that petitioner waived his right to confront Woods at trial by not cross-examining him at the preliminary hearing. That contention is untenable. Not only was petitioner unaware that Woods would be in a federal prison at the time of his trial, but he was also unaware that, even assuming Woods' incarceration, the State would make no effort to produce Woods at trial. To suggest that failure to cross-examine in such circumstances constitutes a waiver of the right of confrontation at a subsequent trial hardly comports with this Court's definition of a waiver as "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464 (1938); Brookhart v. Janis, 384 U.S. 1, 4 (1966).  
  • [What if there HAD been Cross-Examination?]
    • [CB] Moreover, we would reach the same result on the facts of this case had petitioner's counsel actually cross-examined Woods at the preliminary hearing. The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness. *** While there may be some justification for holding that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demands of the confrontation clause where the witness is shown to be actually unavailable, this is not, as we have pointed out, such a case.
  • Malavet
    • Subsequent to Barber, the Supreme Court found some situations where confrontation does not require "at trial" cross-examination of a witness, and thus allowed the use of substitute evidence for an unavailable witness. Note 2 following the case discusses that Crawford appears to approve of the ruling in this case.
    • To the extent that the constitutional minimum has been lowered, some courts have used FRE 804(a) to require a higher showing of unavailability.


  • [CB] 3. Consider the possible effect of Mancusi v. Stubbs, 408 U.S. 204 (1972), where the unavailability requirement emerged in an attenuated setting. *** [CB] *** We therefore hold that the predicate of unavailability was sufficiently stronger here than in Barber that a federal habeas court was not warranted in upsetting the determination of the state trial court as to Holm's unavailability. 408 U.S. 204, at 212 (1972). In dissent, Justice Marshall argued that absence of a statute "reduced the likelihood that any effort would succeed" but did not "relieve[ ] the state of its obligation to make a good-faith effort" to obtain the witness.
  • Malavet
    • Justice Marshall's warning is still good law. However, note the difference between this case and Mann and Barber: the importance of the testimony and of the proceeding itself was much less in Mancusi than it was in Mann or Barber. So, context does indeed make a difference.  

Malavet: Technology and the Confrontation Clause in Criminal Cases

  • A students' question made me curious about the use of technology in the criminal courtroom, and its relationship to the confrontation clause. I found one case in which the courts expressly found that testimony via satellite in a criminal case was allowed as an exception to the confrontation clause. I also found a line of cases involving closed-circuit television testimony. With the exception of the Gigante case cited below, these cases mostly involved victims of sexual abuse, especially child victims, who are allowed to testify via closed-circuit television (I believe that I mentioned this possibility when we discussed child witnesses, but I am not sure that I mentioned the Confrontation Clause.) It is important to note that in the sexual-assault situations, the courts have applied a very narrowly-tailored exception to the confrontation clause that allows the victims to testify without seeing the defendant.
  • Florida appears to be the only state that has authorized the use of testimony-via-satellite in criminal cases. Harrell V. State,  709 So. 2d 1364; 1998 Fla. Lexis 620; 23 Fla. L. Weekly S 236,  April 23, 1998, Decided,  Cert. Denied, October 5, 1998, Reported At: 1998 U.S. Lexis 6093 (Supreme Court Of Florida 1998).
  • Minnesotta allowed one person who would have risked paralysis if he attempted to travel to the place of trial, to testify by Interactive Television (ITV). Minnesota v. Sewell, 595 N.W.2d 207; 1999 Minn. App. Lexis 592 (Court Of Appeals Of Minnesota 1999).
  • The Florida testimony-via-satellite case involved a defendant in a robbery who was charged with robbing a tourist couple. When the trial occurred, the victims were back home in Argentina and they refused to come to Florida for the trial. The Court then allowed the prosecution to establish a satellite link between Argentina and Florida, and the witnesses testified via satellite. The Florida Supreme court held that, under the circumstances of this case, this form of testimony was not equivalent to in-court testimony, but was nonetheless allowable as an exception to the Confrontation Clause. In a Habeas Corpus petition, the 11th Circuit agreed that there was no constitutional violation. Harrell v. Butterworth, 251 F.3d 926, 931 (11th Cir. 2001).
  • Maryland v. Craig, described in the quote below, represents the “retreat” from the strict vision of the Confrontation Clause reflected in Barber v. Page.  But note that it is in very special circumstances.
  • I found this helpful review of the cases in the Georgetown Law Journal:
    • Thirty-First Annual Review Of Criminal Procedure: III. Trial: Sixth Amendment at Trial, 90 Geo. L.J. 1708, 1715-1716 (2002) (transcribed footnotes original, some footnotes omitted).
    • Although the right to face-to-face confrontation is a core value protected by the Clause, fn 1871 it is not an absolute right. fn.1872 In Maryland v. Craig, the Supreme Court held that a defendant's right to face-to-face confrontation will give way when "necessary to further an important public policy [provided] . . . the reliability of the testimony is otherwise assured." fn.1873 The reliability of the testimony may be assured absent a face-to-face encounter through the combined effect of the witness' presence before the tribunal, testimony under oath, cross-examination, and the factfinder's ability to observe the witness' demeanor. fn.1874 The necessity of limiting the right to confront adverse witnesses must be determined on a case-by-case basis. fn.1875
    • fn. 1873. 497 U.S. 836, 850 (1990). The Court in Craig emphasized the important public policy concern of protecting the "physical and psychological well-being" of children and found that such an important public policy may justify denial of defendant's right of face-to-face confrontation "if it is the presence of the defendant that causes the courtroom trauma." Id. at 856. The Court did not identify other public policy concerns that might be considered important enough to limit a constitutional right.
    • fn 1875 See Craig, 497 U.S. at 857-58 (Confrontation Clause not violated when child testified via closed circuit television because trial court determined witness would suffer severe emotional distress if required to testify in presence of defendant); see, e.g., U.S. v. McKeeve, 131 F.3d 1, 10 (1st Cir. 1997) (Confrontation Clause not violated by entry into evidence of witness deposition taken abroad because prosecution provided requisite telephonic links between defendant and deposition site and there was administration of an oath, unlimited direct and cross-examination, ability to lodge objections, oversight by judicial officer, compilation of transcript by trained solicitor, and linguistic compatibility); U.S. v. Gigante, 166 F.3d 75, 81-82 (2d Cir. 1999) (Confrontation Clause not violated by allowing witness to testify via 2-way closed circuit television from remote location because witness was dying of cancer and in witness protection program); Fields v. Murray, 49 F.3d 1024, 1034-37 (4th Cir. 1995) (Confrontation Clause not violated when defendant representing self was not permitted to personally cross-examine child witness in sexual abuse case); U.S. v. Cherarmie, 51 F.3d 538, 541 (5th Cir. 1995) (Confrontation Clause not violated when audiotape of reciprocal and integrated conversation between defendant and narcotics agent admitted into evidence); U.S. v. Weekley, 130 F.3d 747, 752-53 (6th Cir. 1997) (Confrontation Clause not violated when 12-year-old kidnapping victim permitted to testify via 2-way closed circuit television because witness was subject to contemporaneous cross-examination and was under oath); Lowery v. Anderson, 225 F.3d 833, 839-41 (7th Cir. 2000) (Confrontation Clause not violated in defendant's second trial when prosecution failed to present accomplice as live witness and instead introduced accomplice's strongly corroborated testimony from first trial); LaBayre v. Iowa, 97 F.3d 1061, 1062 (8th Cir. 1996) (Confrontation Clause not violated when 8-year-old victim of sexual abuse allowed to testify via closed circuit television because record established likelihood of trauma if witness forced to testify in front of defendant); U.S. v. Miguel, 111 F.3d 666, 671 (9th Cir. 1997) (Confrontation Clause not violated when videotaped deposition of child sex abuse victim admitted at trial because defendant's attorneys were present and conducted cross-examination during deposition); U.S. v. Jones, 213 F.3d 1253, 1261 (10th Cir. 2000) (Confrontation Clause not violated when court limited cross-examination about history of witness's mental illness because defendant allowed to cross-examine witness about his "consumption of drugs and alcohol as it related to his memory, perception, and credibility"); Harrell v. Butterworth, 251 F.3d 926, 931 (11th Cir. 2001) (Confrontation Clause not violated despite technical difficulties during witnesses' testimony via satellite because defendant had full opportunity to cross-examine and jury could observe witnesses' demeanor).
    • Limitation of the right to confront adverse witnesses can result in Confrontation Clause violations. See Coy v. Iowa, 487 U.S. 1012, 1021 (1988) (Confrontation Clause violated when screen shielded child from defendant during testimony because "legislatively imposed presumption of trauma" insufficient to justify exception to face-to-face confrontation requirement); see, e.g., Lowery v. Collins, 988 F.2d 1364, 1369 (5th Cir. 1993) (Confrontation Clause violated when videotaped testimony admitted because record did not show that competency of child witness was determined before testimony, that child was under oath, or that defendant had opportunity to cross-examine); U.S. v. Hamilton, 107 F.3d 499, 504-05 (7th Cir. 1997) (assuming that Confrontation Clause applies at competency hearing, confrontation right violated by admission of telephonic testimony of adverse witness, although error was harmless); Schaal v. Gammon, 233 F.3d 1103, 1108 (8th Cir. 2000) (Confrontation Clause violated when videotaped statement of 7-year-old victim of sexual abuse to psychologist admitted because presence of victim's mother during videotaping created a "suggestive environment" and made statement unreliable); Whelchel v. Wash., 232 F.3d 1197, 1205 (9th Cir. 2000) (Confrontation Clause violated when tape-recorded statements of co-defendants admitted because evidence was hearsay and co-defendants' presumed motivation to minimize their own culpability made statements unreliable); U.S. v. Baptista-Rodriguez, 17 F.3d 1354, 1366-67 (11th Cir. 1994) (Confrontation Clause violated when defendant prohibited from asking FBI agent about contents or existence of classified document allegedly terminating defendant's relationship with FBI, because such evidence was relevant to defense).

Problem 4-O: The government let her go!

  • [Arguments for the Defense:]
  • [Important Witness?]
    • On the one hand, it is obvious that Jane Shell is crucial to the government's case against Rick Masters and the government had at least the power to detain and produce her at trial.
  • [Need to Cross-Examine?]
    • Under the circumstances, she is highly motivated to incriminate Masters, since the more she can blame him for what happened the more she can escape blame herself ("I was only carrying to earn myself a little money"), and actual defense cross-examination might well make headway in discrediting her version of events.
  • [Could the Government Detain Her?]
    • And the government could have continued to detain her -- just keeping her passport and plane ticket might have been enough, and the government could even have incarcerated her as a material witness under 18 USC § 3144 (quoted in note 4 after the problem).
  • [Arguments for Allowing it:]
  • [She is a Minor; No charges against her; Burdensome]
    • On the other hand, Shell is a minor who is not charged with a crime. It would be one thing to keep her in Puerto Rico for a week pending a deposition or preliminary hearing, quite another thing to limit her freedom for "several months" pending trial.
    • The US Attorney will emphasize that incarcerating Shell (even confining her to the islands constructively by confiscating her papers) is draconian and potentially expensive, and point out that she would likely seek to leave the islands if not incarcerated.
    • [Here we might add that this was not likely to be a major drug case in the District of Puerto Rico, where two or three mules were caught on many flights during this period. If that is the case, it was unlikely that the US Attorney would have wished to spend a lot of money on this case.]
  • [Exceptional Cases]
    • The situation seems to fit the "exceptional cases" category, in which FRCrimP 15(a) contemplates a deposition where defense counsel (perhaps defendant himself) could be present and could cross-examine the witness.
  • Authors: Exclude the Deposition
    • On balance, we are inclined to believe the prosecutor simply should not proceed without producing Jane Shell at trial. She is too central, too crucial as a witness to go forward without her. On a doctrinal level, arguably she is not unavailable because (as the defense says) "the government let her go." Its mistake was returning her "walking papers." If the government had not done that but she had "escaped" anyway (obtaining help of friends), probably one would have to conclude that the government's "mistake" was in failing to put her under "house arrest" (posting guards around her room) or in failing to incarcerate her.
  • Authors on the Actual Case: Deposition should have been excluded
    • The Problem rests on United States v. Mann, 590 F.2d 361 (1st Cir 1978), where 17-year-old Joanne Shine was a minor and foreign national recruited for money (under false pretenses) to be a drug carrier (mule) for the defendant Rony Mann. ***
    • First, the court was suspicious of the government's motives (the deposition was taken in contemplation of use at trial, since the US Attorney gave Shine her walking papers at the time; ten days earlier the charges against her were dismissed; in trying to bring her back, the government may have been just as glad to have failed, in the belief that her deposition would be usable).
    • Second, the court seems to have thought the deposition should not have been taken (even though the circumstances were arguably "extraordinary" under see FRCrimP 15(a); the defense was heard on the matter beforehand and counsel attended the deposition and had a chance to question Shine).
    • Third, the deposition was the government's whole case, and Shine was likely motivated to minimize her role in the caper at Mann's expense (her credibility was crucial, and use of her deposition would deprive the jury of a chance to assess it).
  • Malavet
    • During the depo she was asked by defense counsel if she would appear, and she said "no," initially, and then said "I do not know." The prosecution then asked if she would obey a subpoena and she answered "yes."
    • There was also a suggestion by the prosecution, not supported by any evidence on the record, that defendant, personally and through counsel, had harassed Shine.
    • A subpoena was in fact issued and sent to the US consulate in Australia. A consular official in fact contacted Shine's mother and was told that she would not attend the trial (she was still a minor).
    • At trial, in response to direct questioning by the court, the AUSA represented that the Government had offered to pay for Shine's travel expenses and she declined.
    • I agree with the ultimate result here, but I don't see the actions of the AUSA(s) as outrageous. Nevertheless, there is an unusually angry tone to this opinion that is difficult to understand. It seems to me that the judges simply did not trust the AUSA(s), in this case for reasons that are not entirely clear from the opinion.
    • I think it likely that the deposition testimony would probably be more effective for the prosecution than her live testimony.


  • [CB] 4. Consider the possibility of detaining Shell as a material witness. The relevant statute contemplates that a judge must "impose conditions of release" in such cases, but it forbids detention "if the testimony of such witness can adequately be secured by deposition." See 18 U.S.C. § 3144. But in criminal cases depositions for "use in trial" are to be taken only in "exceptional cases." FRCrimP 15(a). Do these provisions mean Shell should be deposed? If so, do the provisions mean she should also be detained to testify at trial? If she leaves because the government does not take steps to keep her on the island (incarceration or taking her tickets or passport), do these provisions mean her deposition should be admissible?


4.12. Hearsay: Forfeiture Doctrine: Giles v. California

  • [6-3 on all but part II-D-2]
    • Scalia, J., delivered the opinion of the Court, except as to Part II-D-2. Roberts, C. J., and Thomas and Alito, JJ., joined that opinion in full, and Souter and Ginsburg, JJ., joined as to all but Part II-D-2. Thomas, J., and Alito, J., filed concurring opinions. Souter, J., filed an opinion concurring in part, in which Ginsburg, J., joined. Breyer, J., filed a dissenting opinion, in which Stevens and Kennedy, JJ., joined.]
  • [The Objected Statements]
  • [CB] Prosecutors sought to introduce statements that Avie had made to a police officer responding to a domestic-violence report about three weeks before the shooting. Avie, who was crying when she spoke, told the officer that Giles had accused her of having an affair, and that after the two began to argue, Giles grabbed her by the shirt, lifted her off the floor, and began to choke her. According to Avie, when she broke free and fell to the floor, Giles punched her in the face and head, and after she broke free again, he opened a folding knife, held it about three feet away from her, and threatened to kill her if he found her cheating on him. Over Giles' objection, the trial court admitted these statements into evidence under a provision of California law that permits admission of out-of-court statements describing the infliction or threat of physical injury on a declarant when the declarant is unavailable to testify at trial and the prior statements are deemed trustworthy. Cal. Evid. Code Ann. § 1370 (West Supp. 2008).
  • [The Statute, edited out in the new edition]
    • § 1370. Hearsay exception
      (a) Evidence of a statement by a declarant is not made inadmissible by the hearsay rule if all of the following conditions are met:
      • (1) The statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant.
        (2) The declarant is unavailable as a witness pursuant to Section 240.
        (3) The statement was made at or near the time of the infliction or threat of physical injury. Evidence of statements made more than five years before the filing of the current action or proceeding shall be inadmissible under this section.
        (4) The statement was made under circumstances that would indicate its trustworthiness.
        (5) The statement was made in writing, was electronically recorded, or made to a physician, nurse, paramedic, or to a law enforcement official.
    • (b) For purposes of paragraph (4) of subdivision (a), circumstances relevant to the issue of trustworthiness include, but are not limited to, the following:
      • (1) Whether the statement was made in contemplation of pending or anticipated litigation in which the declarant was interested.
        (2) Whether the declarant has a bias or motive for fabricating the statement, and the extent of any bias or motive.
        (3) Whether the statement is corroborated by evidence other than statements that are admissible only pursuant to this section.
    • (c) A statement is admissible pursuant to this section only if the proponent of the statement makes known to the adverse party the intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings in order to provide the adverse party with a fair opportunity to prepare to meet the statement.
  • [CB] II [Relevant Standard: Time]
    • The Sixth Amendment provides that "[i] n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." The Amendment contemplates that a witness who makes testimonial statements admitted against a defendant will ordinarily be present at trial for cross-examination, and that if the witness is unavailable, his prior testimony will be introduced only if the defendant had a prior opportunity to cross-examine him. ***

      *** We held in Crawford that the Confrontation Clause is "most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding." We therefore ask whether the theory of forfeiture by wrongdoing accepted by the California Supreme Court is a founding-era exception to the confrontation right.
  • [CB] II-A [Common Law Exceptions Circa 1789, Note the cases]
  • [CB] [The big question: Caused v. Procured]
    • The terms used to define the scope of the forfeiture rule suggest that the exception applied only when the defendant engaged in conduct designed to prevent the witness from testifying. The rule required the witness to have been

      "kept back" or "detained" by "means or procurement" of the defendant. Although there are definitions of "procure" and "procurement" that would merely require that a defendant have caused the witness's absence, other definitions would limit the causality to one that was designed to bring about the result "procured."
    • [CB] Cases and treatises of the time indicate that a purpose-based definition of these terms governed. A number of them said that prior testimony was admissible when a witness was kept away by the defendant's "means and contrivance." [Note the sources that Justice Scalia is willing to rely upon, they must inform future arguments in this area].
    • [CB] An 1858 treatise made the purpose requirement more explicit still, stating that the forfeiture rule applied when a witness "had been kept out of the way by the prisoner, or by some one on the prisoner's behalf, in order to prevent him from giving evidence against him." E. Powell, The Practice of the Law of Evidence 166 (1st ed. l858) (emphasis added). The wrongful-procurement exception was invoked in a manner consistent with this definition. We are aware of no case in which the exception was invoked although the defendant had not engaged in conduct designed to prevent a witness from testifying, such as offering a bribe.
    • 1. The dissent asserts that a defendant could have "contrived, i.e., devised or planned ... to murder a victim" without the purpose of keeping the victim away from trial. But that would not be contriving to keep the witness away. ***
  • [CB] B
    • The manner in which the rule was applied makes plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying. ***
    • [Then describes King v. Woodcock and King v. Dingler]
    • [CB] The State offers another explanation for the above cases. It argues that when a defendant committed some act of wrongdoing that rendered a witness unavailable, he forfeited his right to object to the witness's testimony on confrontation grounds, but not on hearsay grounds. No case or treatise that we have found, however, suggested that a defendant who committed wrongdoing forfeited his confrontation rights but not his hearsay rights. And the distinction would have been a surprising one, because courts prior to the founding excluded hearsay evidence in large part because it was unconfronted. See, e.g., 2 Hawkins 606 (6th ed. 1787); 2 M. Bacon, A New Abridgment of the Law 313 (1736). As the plurality said in Dutton v. Evans, 400 U.S. 74, 86 (1970), "[i]t seems apparent that the Sixth Amendment's Confrontation Clause and the evidentiary hearsay rule stem from the same roots."
    • [CB] *** The notion that judges may strip the defendant of a right that the Constitution deems essential to a fair trial, on the basis of a prior judicial assessment that the defendant is guilty as charged, does not sit well with the right to trial by jury. It is akin, one might say, to "dispensing with jury trial because a defendant is obviously guilty." Crawford.
    • [Malavet: As we discussed during our coverage of Crawford and Davis, Justice Scalia is consistent in his view that too much discretion in the hands of judges to devise exceptions to the application of the confrontation clause is a bad thing.]
  • [CB] C [History Subsequent to Founding]
    • Not only was the State's proposed exception to the right of confrontation plainly not an "exceptio[n] established at the time of the founding," it is not established in American jurisprudence since the founding. American courts never —prior to 1985— invoked forfeiture outside the context of deliberate witness tampering.
      This Court first addressed forfeiture in Reynolds v. United States, 98 U.S. l45 (1879), where, after hearing testimony that suggested the defendant had kept his wife away from home so that she could not be subpoenaed to testify, the trial court permitted the government to introduce testimony of the defendant's wife from the defendant's prior trial.
    • [CB] In 1997, this Court approved a Federal Rule of Evidence, entitled "Forfeiture by wrongdoing," which applies only when the defendant "engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness." FRE 804(b)(6). We have described this as a rule "which codifies the forfeiture doctrine." Davis v. Washington, 547 U.S. 813, 833 (2006). Every commentator we are aware of has concluded the requirement of intent "means that the exception applies only if the defendant has in mind the particular purpose of making the witness unavailable." 5 C. Mueller & L. Kirkpatrick, Federal Evidence §8: 134, p. 235 (3d ed. 2007); 5 J. Weinstein & M. Berger, Weinstein's Federal Evidence §804.03[7][b], p. 804-32 (J. McLaughlin ed., 2d ed. 2008); 2 S. Brown, McCormick on Evidence 176 (6th ed. 2006).2
    • [CB] In sum, our interpretation of the common-law forfeiture rule is supported by (l) the most natural reading of the language used at common law; (2) the absence of common-law cases admitting prior statements on a forfeiture theory when the defendant had not engaged in conduct designed to prevent a witness from testifying; (3) the common law's uniform exclusion of unconfronted inculpatory testimony by murder victims (except testimony given with awareness of impending death) in the innumerable cases in which the defendant was on trial for killing the victim, but was not shown to have done so for the purpose of preventing testimony; (4) a subsequent history in which the dissent's broad forfeiture theory has not been applied. The first two and the last are highly persuasive; the third is in our view conclusive.
  • [CB] D
    • The dissent evades the force of that third point by claiming that no testimony would come in at common law based on a forfeiture theory unless it was confronted. It explains the exclusion of murder victims' testimony by arguing that wrongful procurement was understood to be a basis for admission of Marian depositions-which the defendant would have had the opportunity to confront —but not for the admission of unconfronted testimony.
      That explanation is not supported by the cases.
  • [CB] 2 [Part II-D-2 on which Justice Scalia loses a majority, only the Chief Justice, and Justices Thomas and Alito concur]
    • [CB] Having destroyed its own case, the dissent issues a thinly veiled invitation to overrule Crawford and adopt an approach not much different from the regime of Roberts, under which the Court would create the exceptions that it thinks consistent with the policies underlying the confrontation guarantee, regardless of how that guarantee was historically understood. The "basic purposes and objectives" of forfeiture doctrine, it says, require that a defendant who wrongfully caused the absence of a witness be deprived of his confrontation rights, whether or not there was any such rule applicable at common law.
    • [CB] *** The boundaries of the doctrine seem to us intelligently fixed so as to avoid a principle repugnant to our constitutional system of trial by jury: that those murder defendants whom the judge considers guilty (after less than a full trial, mind you, and of course before the jury has pronounced guilt) should be deprived of fair-trial rights, lest they benefit from their judge-determined wrong.6
    • [CB] 6. [Noting that the judge determines the existence of a conspiracy in applying the coconspirator exception under Bourjaily v. United States, 483 U.S. 171 (1987), Court comments that Bourjaily did not involve testimonial hearsay and that the conspirator exception is "unusual."]
      We do not say, of course, that a judge can never be allowed to inquire into guilt of the charged offense in order to make a preliminary evidentiary ruling. That must sometimes be done under the forfeiture rule that we adopt —when, for example, the defendant is on trial for murdering a witness in order to prevent his testimony. But the exception to ordinary practice that we support is (1) needed to protect the integrity of court proceedings, (2) based upon longstanding precedent, and (3) much less expansive than the exception proposed by the dissent.
    • [CB] n any event, we are puzzled by the dissent's decision to devote its peroration to domestic abuse cases. Is the suggestion that we should have one Confrontation Clause (the one the Framers adopted and Crawford described) for all other crimes, but a special, improvised, Confrontation Clause for those crimes that are frequently directed against women? Domestic violence is an intolerable offense that legislatures may choose to combat through many means —from increasing criminal penalties to adding resources for investigation and prosecution to funding awareness and prevention campaigns. But for that serious crime, as for others, abridging the constitutional rights of criminal defendants is not in the State's arsenal.
      7. The dissent also implies that we should not adhere to Crawford because the confrontation guarantee limits the evidence a State may introduce without limiting the evidence a defendant may introduce. That is true.
    • [CB] The domestic-violence context is, however, relevant for a separate reason. Acts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions. Where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution-rendering her prior statements admissible under the forfeiture doctrine. Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be higWy relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify. This is not, as the dissent charges, nothing more than "knowledge-based intent" (emphasis deleted).
    • [Malavet: But note that Justice Scalia stops way short of creating a presumption for these cases; on the other hand, the the two concurring justices and the three dissenters appear to accept a presumption].
  • [CB] Justice SOUTER, with whom Justice GINSBURG joins, concurring in part.
    • I am convinced that the Court's historical analysis is sound and I join all but Part II-D-2 of the opinion. As the Court demonstrates, the confrontation right as understood at the Framing and ratification of the Sixth Amendment was subject to exception on equitable grounds for an absent witness's prior relevant, testimonial statement, when the defendant brought about the absence with intent to prevent testimony. ***
    • [CB] Examining the early cases and commentary, however, reveals two things that count in favor of the Court's understanding of forfeiture when the evidence shows domestic abuse. The first is the substantial indication that the Sixth Amendment was meant to require some degree of intent to thwart the judicial process before thinking it reasonable to hold the confrontation right forfeited; otherwise the right would in practical terms boil down to a measure of reliable hearsay, a view rejected in Crawford. The second is the absence from the early material of any reason to doubt that 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. The Court's conclusion in Part IIE thus fits the rationale that equity requires and the historical record supports.
  • Justice BREYER, with whom Justice STEVENS and Justice KENNEDY join, dissenting.
    • [CB] "*** Insofar as Justice Souter "presumes" purpose based on "no more than evidence of a history of domestic violence, I agree with it."]

Problem 4-Q: "If you want to stay healthy"

This problem presents these basic quesions:

  • Refusal To Restify
    • FRE 804(a)
  • Forfeiture by Wrongdoing
    • FRE 804(b)(6)
  • Procedure?
    • Ex-parte hearing?
  • Standard of Proof?
    • FRE 104(a)?

Authors on the Problem

  • Heart of the Matter. The substantive point seems easy enough:
    • Sending a letter with a veiled threat (“if you want to stay healthy”) is wrongdoing, and one can infer intent from the letter itself.
    • Can the court exclude Keeton from the hearing? Humanly, it’s not hard to see the motivation: Spreigel says he’s frightened of Keeton, and advising the court of Keeton’s threat is already an act of courage that increases whatever risks Spreigel faces from Keeton’s animosity. The closest analogies we know suggest that courts can limit defense rights in order to protect witnesses, as happens when the prosecutor seeks to avoid disclosing the identity of informers, or to evaluate the competency of child victims to testify (where a finding of competency means they may be allowed to testify and a finding of psychological trauma may pave the way to admit their hearsay statements). Surely in most such cases, however, it is appropriate to have at least the lawyer for the defendant present, and on the facts in the problem even the defense lawyer did not appear.
    • FRE 104(a) and Bourjaily Preponderance.The decision may rest on a preponderance of the evidence. The ACN to FRE 804(b)(6) states flatly that the preponderance standard “has been adopted.” Presumably this conclusion rests on the fact that FRE 804(b)(6) does not say some other standard applies, so the assumption is that FRE 104(a) applies and that the preponderance standard is embodied in that provision, as the Court thought in Bourjaily.
    • Process unusual, but probably OK. Presumably the judge can decide the issue on the basis of anything he chooses, since FRE 104(a) states that the judge is not bound by the rules of evidence (apart from privileges) in making preliminary determinations. Still, it is a little unusual to decide something as important as this on the basis of unsworn statements by a lawyer representing a client.
    • Forfeiture significant. Although the questions in the problem don’t ask whether Spreigel’s statements would be admitted if Spreigel had simply disappeared or died of causes unrelated to the case or to anything that the defendant did, it is worth noting that probably his statements would not get in. They would not likely fit the against-interest exception because Spreigel is engaged in currying favor with police so as to minimize his own criminal liability, and in any event Spreigel’s statements are testimonial under the Crawford doctrine because given to police investigating crime. So the forfeiture concept and the forfeiture exception have real “bite” on facts such as these.

The actual case admitted. The autors explain:

  • What the court actually did:
    • Problem 4-N tracks closely State v. Keeton, 573 N.W.2d 378 (Minn. 1997).
    • There the Minnesota Supreme Court affirmed an armed robbery conviction and approved the action of a trial judge in admitting statements by one co-offender (given to police and in guilty plea allocutions) on the basis of an in camera hearing attended only by that co-offender and his lawyer, who read to the judge a letter “that she said the [co-offender] swore he received” from the defendant.
  • Here is the conclusion of the reviewing court:
    • In order to protect the identity of a confidential informant when deciding if there is a basis to disclose the informant’s identity, Minnesota appellate courts have permitted or required an in camera hearing that excludes counsel for either party. State v. Wessels, 424 N.W.2d 572, 574 (Minn. App. 1988). Similarly, here it was within the district court’s discretion to protect the allegedly threatened witness.
    • The district court held this in camera hearing to address the witness’s refusal to testify. When defendants procure a witness’s unavailability with threats, they lose their confrontation rights. State v. Hansen, 312 N.W.2d 96, 104 (Minn. 1981). We conclude appellant also has no right to be present at a hearing when alleged threats are revealed to the court, where his presence would provide a further opportunity to intimidate the witness. Appellant should not be allowed to take advantage of his own misconduct “to defeat the ends of justice,” and thus, his right to be present is waived. State ex rel. Shetsky v. Utecht, 36 N.W.2d 126, 128 (Minn. 1949).
    • Additionally, even if it was error for the district court to exclude both appellant and his attorney from the in camera hearing, we find beyond a reasonable doubt that the impact of any error was harmless. State v. Shoop, 441 N.W.2d 475, 481 (Minn. 1989). ***

Dying Declarations,

I will let this material speak for itself.


4.13.a. G. The Constitution as a Bar to the Admission of Hearsay

  • [CB] To begin with some points of certainty, it is settled that the Confrontation Clause entitles the accused to be there when witnesses testify against him, and to cross-examine. In 1988, the Court held that the Clause entitles the defendant not only to be present, and to see and hear the witnesses against him, but also to be in view of them. See Coy v. Iowa, 487 U.S. 1012 (1988) (condemning use of translucent screen separating teen-aged girl from defendant in sexual assault case, designed to let defendant see her but shielding her from seeing him). But the accused may lose the right to be present by misbehaving, see Illinois v. Allen, 397 U.S. 337 (1970), and a court may let youthful assault victims testify from another room, their image and words conveyed into court by one-way video circuit, on the basis of a case-specific finding that this step is necessary to protect the child, see Maryland v. Craig, 497 U.S. 836 (1990),
  • [CB] Modern era arrives. In 1970 two decisions announced the modern era. One was California v Green, 399 U.S. 149 (1970), rejecting challenges to the use [362] of statements by a witness who seemed conveniently forgetful [and thus constructively "unavailable"] at trial but who previously incriminated defendant in a conversation with a police officer and in a preliminary hearing. Broadly read, Green suggests that two kinds of statements pass muster [1] those subject to prior cross-examination because they were made in proceedings where defendant had a lawyer who tested them, and [2] those subject to deferred cross-examination at trial because defendant can then question the witness about what he said before.
  • [CB] The next decision was Dutton v Evans, 400 U.S. 74 (1970), which rejected a challenge to an out-of-court statement that was never tested by cross-examination because declarant never testified. The statement came in under a state coconspirator exception, which (unlike counterparts in the federal system and elsewhere) reached utterances by a conspirator who was already imprisoned. Broadly read, Dutton says the Confrontation Clause is satisfied if a statement possesses "indicia of reliability," similar to the factors underlying traditional hearsay exceptions.

6th Amendment/Hearsay Theories:

  • Malavet
    • Production of Declarant (Roberts, Barber, Crawford)
    • Reliability of Statement (Roberts)
    • Minimalist, Testimonial (Crawford)
  • [CB] 1. Minimalist theory. The Clause speaks only to live testimony and has nothing to say about out-of-court statements. It entitles the accused to be present and cross-examine witnesses who testify but does not stop the prosecutor from offering testimonial accounts of what others have said. In other words, "witness against" means someone who testifies at trial, not someone who makes an out-of-court statement. Wigmore took this position, see 5 Wigmore, Evidence §1397 (Chadbourn rev. 1974), and justice Harlan once endorsed it too, see Dutton v. Evans, 400 U.S. 74 (1970) (concurring opinion), but the Supreme Court itself never adopted this view.
  • [CB] 2. Production theory. The Clause requires the prosecutor to produce an available declarant in preference to his out-of-court statement, but has nothing to say about statements by people who are unavailable-whose presence or testimony the prosecutor cannot obtain. Professor Westen advanced this view in an elegant article, see Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv. L. Rev. 567, 596 (1978) (arguing that Confrontation and Compulsory Process Clauses protect [363] procedural rights and should be read together; the latter does not compel the prosecutor to perform the impossible task of producing unavailable witnesses for the defense; the former should not exclude statements by declarers who cannot be produced). The Court partially adopted this view in Roberts, infra, and in Barber, supra (both stressing the duty of the prosecutor to produce declarants) .
  • [CB] 3. Reliability theory. The Clause sets a constitutional standard of reliability for hearsay offered against the accused, although concerns over reliability may be satisfied by circumstances similar to the ones associated with hearsay exceptions, and reliability is unimportant (or less so) if the accused can cross-examine. As you will see in reading Roberts, the Court also adopted this approach.
  • [CB] 4. Testimonial theory. A variant of the first theory, another approach holds that the Clause applies to "testimonial" statements (at least where the declarant cannot be cross-examined), and "testimonial" refers at least to statements to law enforcement officers describing crimes, where the purpose is to aid in prosecuting or trying the alleged culprit. You are about to see that the Supreme Court embraced this theory in the Crawford case.
  • Malavet
    • Ohio v. Roberts and Barber adopted the Production and Reliability theories. In reading Crawford you will find that it clearly retains Production and rejects the reliability prong from Ohio v. Roberts. It also adopts the Testimonial theory.

Case: Ohio v. Roberts, now reduced to notes, but I have left the old notes in case you want to learn more about it.

To the authors' description of the facts I would only add that the testimony was admitted under Ohio Statute 2945.49, which allows the use of former testimony, such as that given at a preliminary hearing, of a deceased or absent witness. Similar to FRE 804.

  • [CB] The Sixth Amendment's Confrontation Clause, made applicable to the States through the Fourteenth Amendment, provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." If one were to read this language literally, it would require, on objection, the exclusion of any statement made by a declarant not present at trial. But, if thus applied, the Clause would abrogate virtually every hearsay exception, a result long rejected as unintended and too extreme.
  • [CB] The historical evidence leaves little doubt, however, that the Clause was intended to exclude some hearsay. Moreover, underlying policies support the same conclusion. The Court has emphasized that the Confrontation Clause reflects [1] a preference for face-to-face confrontation at trial, and [2] that "a primary interest secured by [the provision] is the right of cross-examination." Douglas v Alabama, 380 U.S. 415, 418 (1965).[6]
  • [CB] Footnote 6: 6. . . . Of course, these purposes are interrelated, since one critical goal of cross-examination is to draw out discrediting demeanor to be viewed by the factfinder. Confrontation at trial also operates to ensure reliability in other ways. ...
  • [Need: Unavailability]
    • [CB]The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the Framers' preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity.
  • [Indicia of Reliability]
    • [CB]The second aspect operates once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that "there is no material departure from the reason of the general rule." The principle recently was formulated in Mancusi v Stubbs:

      The focus of the Court's concern has been to insure that there "are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant," Dutton v. Evans, and to "afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement," California v. Green. It is clear from these statements, and from numerous prior decisions of this Court, that even though the witness be unavailable his prior testimony must bear some of these "indicia of reliability."
  • [CB, THE RULE]
    • In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate "indicia of reliability." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.
  • [CB] The authors explain:
    • The Court also concludes that defense questioning of Anita Isaacs at the preliminary hearing amounted to cross-examination as a matter of both form and substance, since it was "replete with leading questions" and challenged the truth of her story. ***


  • [CB] 4. You must be curious to know which exceptions are "firmly rooted'.' under Roberts, and which are not. Here are the important exceptions labeled as "firmly rooted," by the Supreme Court or other appellate courts: Coconspirator statements, excited utterances, statements for medical diagnosis or treatment, business records, dying declarations, agent's admissions and public records.[18]
  • [CB, footnote] 18. See White v. Illinois, 502 U.S. 346 (1992) (excited utterances; statements for medical diagnosis or treatment); Bourjaily v. United States, 483 U.S. 171 (1987) (coconspirator statements); Ohio v. Roberts, 448 U.S. 56 (1980) (former testimony; mentioning business records and dying declarations as firmly rooted exceptions). And see United States v. De Water, 846 F.2d 528, 530 (9th Cir. 1988) (public records); United States v. McLean-Davis, 785 F.2d 1534, 1536-1537 (11th Cir. 1986) (speaking agency exception).

4.13.b. Crawford v. Washington

What, exactly, is the conflict between the two statements?

Why was the prosecution so intent on introducing Sylvia's statement?

  • [Petitioner]
    • [CB] Petitioner countered that, state law notwithstanding, admitting the evidence would violate his federal constitutional right to be "confronted with the witnesses against him." According to our description of that right in Ohio v. Roberts, 448 U.S. 56 (1980), it does not bar admission of an unavailable witness's statement against a criminal defendant if the statement bears "adequate `indicia of reliability."' To meet that test, evidence must either fall within a "firmly rooted hearsay exception" or bear "particularized guarantees of trustworthiness." The trial court here admitted the statement on the latter ground, offering several reasons why it was trustworthy: Sylvia was not shifting blame but rather corroborating her husband's story that he acted in self-defense or "justified reprisal"; she had direct knowledge as an eyewitness; she was describing recent events; and she was being questioned by a "neutral" law enforcement officer. The prosecution played the tape for the jury and relied on it in closing, arguing that it was "damning evidence" that "completely refutes [petitioner's] claim of self-defense." The jury convicted petitioner of assault.
  • [CB] A
    • The Constitution's text does not alone resolve this case. One could plausibly read "witnesses against" a defendant to mean [1] those who actually testify at trial [minimalist theory], [2] those whose statements are offered at trial, or [3] something in-between. We must therefore turn to the historical background of the Clause to understand its meaning.
    • [CB] Many other decisions are to the same effect. Some early cases went so far as to hold that prior testimony was inadmissible in criminal cases even if the accused had a previous opportunity to cross-examine. See Finn v Commonwealth, 26 Va. 701, 708 (1827); State v Atkins, 1 Tenn. 229 (1807) (per curiam). Most courts rejected that view, but only after reaffirming that admissibility depended on a prior opportunity for cross-examination. Nineteenth-century treatises confirm the rule.
  • [CB] III
    • This history supports two inferences about the meaning of the Sixth Amendment.
  • [CB] A
    • [CB] 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. It was these practices that the Crown deployed in notorious treason cases like Raleigh's; that the Marian statutes invited; that English law's assertion of a right to confrontation was meant to prohibit; and that the founding-era rhetoric decried. The Sixth Amendment must be interpreted with this focus in mind.
    • [CB] Accordingly, we once, again reject the view that the Confrontation Clause applies of its own force only to in-court testimony, and that its application to out-of-court statements introduced at trial depends upon "the law of Evidence for the time being." [Theories] 3 Wigmore §1397, at 101; accord, Dutton v Evans, 400 U.S. 74, 94 (1970) (Harlan, J., concurring in result). Leaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices. Raleigh was, after all, perfectly free to confront those who read Cobham's confession in court.
  • [Adopting the Testimonial view to apply the prohibition]
    • [CB] The text of the Confrontation Clause reflects this focus. It applies to [374] "witnesses" against the accused --in other words, those who "bear testimony." 1 N. Webster, An American Dictionary of the English Language (1828). "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. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement.
    • [CB] *** Regardless of the precise articulation, some statements qualify under any definition-for example, ex parte testimony at a preliminary hearing.
    • [CB] Statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard. Police interrogations bear a striking resemblance to examinations by justices of the peace in England. The statements are not sworn testimony, but the absence of oath was not dispositive. Cobham's examination was unsworn, yet Raleigh's trial has long been thought a paradigmatic confrontation violation.
  • [Production Theory: defines the prohibition]
    • [CB] The historical record also supports a second proposition: that the Framers [375] would not have allowed admission of testimonial statements of a witness who did not appear at trial unless [1] he was unavailable to testify, and [2] the defendant had had a prior opportunity for cross-examination. The text of the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts. Rather, the "right . . . to be confronted with the witnesses against him," is most naturally read as a reference to the right of confrontation at common law, admitting only those" exceptions established at the time of the founding. See Mattox v United States, 156 U.S. 237, 243 (1895). As the English authorities above reveal, the common law in 1791 conditioned admissibility of an absent witness's examination on unavailability and a prior opportunity to cross-examine. The Sixth Amendment therefore incorporates those limitations. The numerous early state decisions applying the same test confirm that these principles were received as part of the common law in this country.
  • [Exceptions?]
    • [CB] We do not read the historical sources to say that a prior opportunity to cross-examine was merely a sufficient, rather than a necessary, condition for admissibility of testimonial statements. They suggest that this requirement was dispositive, and not merely one of several ways to establish reliability. This is not to deny, as the Chief justice notes, that "there were always exceptions to the general rule of exclusion" of hearsay evidence. Several had become well established by 1791. But there is scant evidence that exceptions were invoked to admit testimonial statements against the accused in a criminal case.[6] 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.
    • [CB] *** [Reliability Lives!] In contrast, we considered reliability factors beyond prior opportunity for cross-examination when the hearsay statement at issue was not testimonial. See Dutton v. Evans, 400 U.S., at 87-89 (plurality opinion).
  • [Rule]
    • Our cases have thus remained faithful to the Framers' understanding: [377]Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.[9]
    • [CB, footnote] 9. . . . Finally, we reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. See California v. Green, 399 U.S. 149 (1970). It is therefore irrelevant that the reliability of some out-of-court statements "`cannot be replicated, even if the declarant testifies to the same matters in court"' (quoting United States v. Inadi, 475 U.S. 387, 395 (1986)). [Admissions Doctrine?] The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it. ([Non-Truth uses] The Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. See Tennessee v Street, 471 U.S. 409 (1985).)
  • The Unpardonable Vice of Roberts
    • [CB] The unpardonable vice of the Roberts test, however, is not its unpredictability, but its demonstrated capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude. ***
    • [CB] We readily concede that we could resolve this case by simply reweighing the "reliability factors" under Roberts and finding that Sylvia Crawford's statement falls short. But we view this as one of those rare cases in which the result below is so improbable that it reveals a fundamental failure on our part to interpret the Constitution in away that secures its intended constraint on judicial discretion. Moreover, to reverse the Washington Supreme Court's decision after conducting our own reliability analysis would perpetuate, not avoid, what the Sixth Amendment condemns. The Constitution prescribes a procedure for determining the reliability of testimony in criminal trials, and we, no less than the state courts, lack authority to replace it with one of our own devising.
    • [CB] Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law-as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. ***
    • [CB] In this case, the State admitted Sylvia's testimonial statement against petitioner, despite the fact that he had no opportunity to cross-examine her. That alone is sufficient to make out a violation of the Sixth Amendment. Roberts notwithstanding, we decline to mine the record in search of indicia of reliability. Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.


This is the latest and greatest line of cases in the field, so the notes are on the cutting-edge.

4.14 After Crawford: The Emergency Doctrine of Davis v. Washington

  • Malavet
    • Postscript to Crawford:
      • Mr. Crawford pleaded guilty to first degree assault, and received a ten year sentence. The plea came on the eve of his retrial on March 30, 2005.
      • At that hearing he asked to be allowed visitation from his wife and son, and the judge agreed to recommend it. "His wife pleaded guilty to third-degree assault and rendering criminal assistance and ha[d] finished her probation [by March of 2005]." Scott Gutierrez, Olympia man guilty in case overruled by Supreme Court, The Olympian (Olympia, WA), March 31, 2005.]
      • NO, the Crawford rule is not retroactive, as held by a unanimous court in February of 2007. See Whorton v. Bockting, 127 S.Ct. 1173 (February 28, 2007).
    • Davis is the first important attempt by the Supreme Court to define the limits of Crawford
      • Davis does several important things.
      • First, Davis rules that the Sixth Amendment bar against the use of hearsay statements applies only to testimonial statements. This completely overrules Ohio v. Roberts as a constitutional test for hearsay.
      • Second, Davis illustrates the definition of "testimonial" statements in the context of police intervention by creating a continuum that goes from the initial management of an emergency, which does not produce testimonial statements (Davis v. Washington), to the interrogation of witnesses of a crime once law enforcement is in effective control of the scene, which produces testimonial statements (Hammon v. Indiana). In this context, the court also unanimously treats 911 operators as agents of law enforcement for sixth amendment purposes.
  • OPINION: SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, KENNEDY, SOUTER, GINSBURG, BREYER, and ALITO, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment in part and dissenting in part.
  • II
    • [CB] The Confrontation Clause of the Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." In  Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), we held that this provision bars "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." A critical portion of this holding, and the portion central to resolution of the two cases now    before us, is the phrase "testimonial statements." Only statements of this sort cause the declarant to be a "witness" within the meaning of the Confrontation Clause. See  id., at 51, 124 S. Ct. 1354, 158 L. Ed. 2d 177. It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation   Clause.
    • [CB] Without attempting to produce an exhaustive classification   of all conceivable statements -- or even all conceivable statements in response to police interrogation -- as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no    such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. fn1
    • Fn1 Our holding refers to interrogations because, as explained below, the statements in the cases presently before us are the products of interrogations -- which in some circumstances tend to generate testimonial responses. This is not to imply, however, that statements made in the absence of any interrogation are necessarily nontestimonial. The Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation. (Part of the evidence against Sir Walter Raleigh was a letter from Lord Cobham that was plainly not the result of sustained questioning. Raleigh's Case, 2 How. St. Tr. 1, 27 (1603).) And of course even when interrogation exists, it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate.
  • III
  • A
    • [CB] We must decide, therefore, [1] whether the Confrontation Clause applies only to testimonial hearsay; and, [2] if so, whether the recording of a 911 call qualifies.
      [383] The answer to the first question was suggested in Crawford, even if not explicitly held:
      "The text of the Confrontation Clause reflects this focus [on testimonial hearsay]. It applies to `witnesses' against the accused-in other words, those who `bear testimony.' 1 N. Webster, An American Dictionary of the English Language (1828). `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."
    • [CB] A limitation so clearly reflected in the text of the constitutional provision must fairly be said to mark out not merely its "core," but its perimeter. In Crawford, it sufficed for resolution of the case before us to determine that "even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class."  Id., at 53,    124 S. Ct. 1354, 158 L. Ed. 2d 177. Moreover, as we have just described, the facts of that case spared us the need to define what we meant by "interrogations." The Davis case today does not permit us this luxury of indecision. The inquiries of a police operator in the course of a 911 call fn2 are an interrogation in one sense, but not in a sense that "qualifies under any conceivable definition." We must decide, therefore, whether the Confrontation Clause applies only to testimonial hearsay; and, if so, whether the recording of a 911 call qualifies.
    • Fn2 If 911 operators are not themselves law enforcement officers, they may at least be agents of law enforcement when they conduct interrogations of 911 callers. For purposes of this opinion (and without deciding the point), we consider their acts to be acts of the police. As in  Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), therefore, our holding today makes it unnecessary to consider whether and when statements made to someone other than law enforcement personnel are "testimonial." [Note that Justice Thomas agrees that 911 operators are agents of law enforcement in footnote 1 of his opinion.]
  • [Note the reference to unwitting statements to an informant]
    • [CB] Even our later cases, conforming to the reasoning of Ohio v. Roberts, 448 U.S. 56 (1980),4 never in practice dispensed with the Confrontation Clause requirements of unavailability and prior cross-examination in cases that involved testimonial hearsay, see Crawford (citing cases), with one arguable exception (discussing White v. Illinois). Where our cases did dispense with those requirements even under the Roberts approach the statements at issue were clearly nontestimonial. See, e.g., Bourjaily v. United States, 483 U.S. 171, 181-184 (1987) (statements made unwittingly to a Government informant); Dutton v. Evans, 400 U.S. 74, 87-89 (1970) (plurality opinion) (statements from one prisoner to another).
    • [CB] When we said in Crawford, that "interrogations by law enforcement officers fall squarely within [the] class" of testimonial hearsay, we had immediately in mind (for that was the case before us) interrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator. The product of such interrogation, whether reduced to a writing signed by the declarant or embedded in the memory (and perhaps notes) of the interrogating officer, is testimonial. It is, in the terms of the 1828 American dictionary quoted in Crawford, "` [a] solemn declaration or affirmation made for the purpose of establishing or proving some fact."' (The solemnity of even an oral declaration of relevant past fact to an investigating officer is well enough established by the severe consequences that can attend a deliberate falsehood. See, e.g., United States v. Stewart, 433 F.3d 273, 288 (2d Cir. 2006) (false statements made to federal investigators violate 18 U.S.C. §1001); State v. Reed, 695 N.W.2d 315, 323 (Wis. 1005) (state criminal offense to "knowingly giv[e] false information to [an] officer with [the] intent to mislead the officer in the performance of his or her duty").) A 911 call, on the other hand, and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to "establis[h] or prov[e]" some past fact, but to describe current circumstances requiring police assistance.
  • [Davis Ruling]
    • [CB] We conclude from all this that the circumstances of McCottry's interrogation objectively indicate its primary purpose was to enable police assistance to meet an ongoing emergency. She simply was not acting as a witness; she was not testing. What she said was not "a weaker substitute for live testimony" at trial, United States v. Inadi, 475 U.S. 387, 394 (1986), like Lord Cobham's statements in Raleigh's Case, 2 How. St. Tr. 1 (1603), or Jane Dingler's ex parte statements against her husband in King v. Dingier, 168 Eng. Rep. 383 (1791), or Sylvia Crawford's statement in Crawford. In each of those cases, the ex parte actors and the evidentiary products of the ex parte communication aligned perfectly with their courtroom analogues. McCottry's emergency statement does not. No "witness" goes into court to proclaim an emergency and seek help.
  • [Hammon Ruling]
    • [CB] Determining the testimonial or nontestimonial character of the statements that were the product of the interrogation in Hammon is a much easier task, since they were not much different from the statements we found to be testimonial in Crawford. It is entirely clear from the circumstances that the interrogation was part of an investigation into possibly criminal past conduct-as, indeed, the testifying officer expressly acknowledged. There was no emergency in progress; the interrogating officer testified that he had heard no arguments or crashing and saw no one throw or break anything. When the officers first arrived, Amy told them that things were fine, and there was no immediate threat to her person. When the officer questioned Amy for the second time, and elicited the challenged statements, he was not seeking to determine (as in Dams) "what is happening," but rather "what happened." Objectively viewed, the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime which is, of course, precisely what the officer should have done.
    • [The majority points out the forfeiture doctrine. But Justice Scalia focuses on it as a waiver of the Sixth Amendment protection, rather than an exception to the rule.]
    • [CB] But when defendants seek to undermine the judicial process by pro¬curing or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce. While defendants have no duty to assist the State in proving their guilt, they do have the duty to refrain from acting in ways that destroy the integrity of the criminal-trial system. We reiterate what we said in Crawford: that "the rule of forfeiture by wrongdoing ... extinguishes confrontation claims on essentially equitable grounds" (citing Reynolds, 98 U.S., at 158-159). That is, one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.
    • [CB] We take no position on the standards necessary to demonstrate such forfeiture, but federal courts using FRE 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 (7th Cir. 2002). State courts tend to follow the same practice, see, e.g., Commonwealth v. Edwards, 542, 830 N.E.2d 158, 172 (Mass. 2005). 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." The Roberts approach to the Confrontation Clause undoubtedly made recourse to this doctrine less necessary, because prosecutors could show the "reliability" of ex parte statements more easily than they could show the defendant's procurement of the witness's absence. Crawford, in overruling Roberts, did not destroy the ability of courts to protect the integrity of their proceedings.
    • concurring in the judgment in part and dissenting in part.
      • fn1 Like the Court, I presume the acts of the 911 operator to be the acts of the police. Ante, at 8, n. 2. Accordingly, I refer to both the operator in Davis and the officer in Hammon, and their counterparts in similar cases, collectively as "the police."
      • II
        • Because the standard adopted by the Court today is neither workable nor a targeted attempt to reach the abuses forbidden by the Clause, I concur only in the judgment in Davis v. Washington, No. 05-5224, and respectfully dissent from the Court's resolution of Hammon v. Indiana, No. 05-5705.

4.14.b. Michigan v. Bryant

    • [In Richard Bryant’s jury trial for murder, the court admitted statements by the victim Anthony Covington, made to police who discovered him in a gas station parking lot dying of a gunshot wound to the abdomen.] [Police responded to a radio dispatch at 3:25 A.M. on April 29, 2001, describing a shooting. At the scene, Covington was in pain and spoke with difficulty. Police asked “what had happened, who had shot him, and where the shooting "occurred.” Covington answered that “Rick” Bryant had shot him at about 3:00 A.M., that he had had a conversation with him through the back door of Bryant’s house, and that as he turned to leave he was shot through the door. This conversation lasted 5-10 minutes before emergency medical services arrived, and they transported Covington to a hospital where he died within hours. Police went to Bryant’s house, found blood and a bullet on the back porch and an apparent bullet hole in the door, and also found Covington’s wallet and identification."
    • [CB] "At trial, which took place before Crawford and Davis were decided, officers recounted Covington’s statements, which were admitted as excited utterances. Eventually the Michigan Supreme Court reversed Bryant’s conviction for error in admitting Covington’s statements to police, which were testimonial and did not fit the Davis emergency doctrine. The prosecutor had invoked the dying declaration exception, but did not pursue it, and the Michigan Supreme Court held that the question whether Bryant’s statements fit that exception was not before it.]"
  • [Primary Purpose]
    • [CB] But there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony. In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant. Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause. Thus, we confront for the first time circumstances in which the “ongoing emergency” discussed in Davis extends beyond an initial victim to a potential threat to the responding police and the public at large. This new context requires us to provide additional clarification with regard to what Davis meant by “the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.”"
  • [Objective Totality of the Circumstances Standard]
    • [CB] To determine whether the “primary purpose” of an interrogation is “to enable police assistance to meet an ongoing emergency,” Davis, which would render the resulting statements nontestimonial, we objectively evaluate the circumstances in which the encounter occurs and the statements and actions of the parties."
    • [CB] An objective analysis of the circumstances of an encounter and the statements and actions of the parties to it provides the most accurate assessment of the “primary purpose of the interrogation.” The circumstances in which an encounter occurs—e.g., at or near the scene of the crime versus at a police station, during an ongoing emergency or afterwards—are clearly matters of objective fact. The statements and actions of the parties must also be objectively evaluated. That is, the relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals’ statements and actions and the circumstances in which the encounter occurred. Implicit in Davis is the idea that because the prospect of fabrication in statements given for the primary purpose of resolving that emergency is presumably significantly diminished, the Confrontation Clause does not require such statements to be subject to the crucible of cross-examination."
  • [At that time]
    • [CB] The existence of an ongoing emergency must be objectively assessed from the perspective of the parties to the interrogation at the time, not with the benefit of hindsight. If the information the parties knew at the time of the encounter would lead a reasonable person to believe that there was an emergency, even if that belief was later proved incorrect, that is sufficient for purposes of the Confrontation Clause. The emergency is relevant to the “primary purpose of the interrogation” because of the effect it has on the parties’ purpose, not because of its actual existence. This logic is not unlike that justifying the excited utterance exception in hearsay law. Statements “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition,” FRE 803(2), are considered reliable because the declarant, in the excitement, presumably cannot forma falsehood."
    • [CB] Second, the question whether an emergency is ongoing involves a “context-dependent inquiry,” and domestic violence cases like Davis and Hammon have “a narrower zone of potential victims than cases involving threats to public safety.” The duration and scope of an emergency “may depend in part on the type of weapon employed,” and in Hammon the result might have been different if Herschel had been“reported to be armed with a gun.” Also the victim’s medical condition counts because it sheds light on his ability “to have any purpose at all” in answering police questions. To be sure, an emergency may evolve into an investigation if the perpetrator “is disarmed, surrenders, is apprehended, or...flees with little prospect of posing a threat to the public.” Trial courts can determine the point at which “any transition from nontestimonial to testimonial occurs.” Finally, the existence or not of an emergency is not dispositive: Rather it is “simply one factor” that affects “primary purpose.” Another factor is the “informality” of an encounter between victim and police, and in here questioning went forward “in an exposed, public area, prior to the arrival of emergency medical services, and in a disorganized fashion,” making it different from stationhouse questioning in Crawford.]"
  • [RELIABILITY makes a comeback? Or something else?]
    • [CB]Footnote 9. Many other exceptions to the hearsay rules similarly rest on the belief that certain statements are, by their nature, made for a purpose other than use in a prosecution and therefore should not be barred by hearsay prohibitions. See, e.g., ...
    • [CB]In addition to the circumstances in which an encounter occurs, the statements and actions of both the declarant and interrogators provide objective evidence of the primary purpose of the interrogation...."
    • [CB] The combined approach also ameliorates problems that could arise from looking solely to one participant. Predominant among these is the problem of mixed motives on the part of both interrogators and declarants. Police officers in our society function as both first responders and criminal investigators. Their dual responsibilities may mean that they act with different motives simultaneously or in quick succession. Taking into account a victim’s injuries does not transform this objective inquiry into a subjective one. The inquiry is still objective because it focuses on the understanding and purpose of a reasonable victim in the circumstances of the actual victim-circumstances that prominently include the victim’s physical state...."
  • [ONGOING Emergency]
    • [CB] As the context of this case brings into sharp relief, the existence and duration of an emergency depend on the type and scope of danger posed to the victim, the police, and the public...."
    • [CB] The police did not know, and Covington did not tell them, whether the threat was limited to him. The potential scope of the dispute and therefore the emergency in this case thus stretches more broadly than those at issue in Davis and Hammon and encompasses a threat potentially to the police and the public. This is also the first of our post-Crawford Confrontation Clause cases to involve a gun. The physical separation that was sufficient to end the emergency in Hammon was not necessarily sufficient to end the threat in this case; Covington was shot through the back door of Bryant’s house."
    • [CB] At no point during the questioning did either Covington or the police know the location of the shooter. In fact, Bryant was not at home by the time the police searched his house at approximately 5:30 A.M. At some point between 3 A.M. and 5:30 A.M., Bryant left his house. At bottom, there was an ongoing emergency here where an armed shooter, whose motive for and location after the shooting were unknown, had mortally wounded Covington within a few blocks and a few minutes of the location where the police found Covington. This is not to suggest that the emergency continued until Bryant was arrested in California a year after the shooting. We need not decide precisely when the emergency ended because Covington’s encounter with the police and all of the statements he made during that interaction occurred within the first few minutes of the police officers’ arrival and well before they secured the scene of the shooting—the shooter’s last known location."
  • [Primary Purpose]
    • [CB] When the police arrived at Covington’s side, their first question to him was “What happened?” Covington’s response was either “Rick shot me” or “I was shot,” followed very quickly by an identification of “Rick” as the shooter. In response to further questions, Covington explained that the shooting occurred through the back door of Bryant’s house and provided a physical description of the shooter. When he made the statements, Covington was lying in a gas station parking lot bleeding from a mortal gunshot wound to his abdomen. His answers to the police officers’ questions were punctuated with questions about when emergency medical services would arrive. He was obviously in considerable pain and had difficulty breathing and talking. From this description of his condition and report of his statements, we cannot say that a person in Covington’s situation would have had a “primary purpose” “to establish or prove past events potentially relevant to later criminal prosecution.” The questions they asked—“what had happened, who had shot him, and where the shooting occurred”—were the exact type of questions necessary to allow the police to “‘assess the situation, the threat to their own safety, and possible danger to the potential victim’” and to the public, Davis, including to allow them to ascertain “whether they would be encountering a violent felon.” In other words, they solicited the information necessary to enable them“to meet an ongoing emergency.”"
  • [Primary Purpose: Informality]
    • [CB] Finally, we consider the informality of the situation and the interrogation. This situation is more similar, though not identical, to the informal, harried911 call in Davis than to the structured, station-house interview in Crawford. As the officers’ trial testimony reflects, the situation was fluid and somewhat confused: the officers arrived at different times; apparently each, upon arrival, asked Covington “what happened?”; and...they did not conduct a structured inter- rogation. The informality suggests that the interrogators’ primary purpose was simply to address what they perceived to be an ongoing emergency, and the circumstances lacked any formality that would have alerted Covington to or focused him on the possible future prosecutorial use of his statements."
    • [CB] For the foregoing reasons, we hold that Covington’s statements were not testimonial and that their admission at Bryant’s trial did not violate the Confrontation Clause. We leave for the Michigan courts to decide on remand whether the statements’ admission was otherwise permitted by state hearsay rules. The judgment of the Supreme Court of Michigan is vacated, and the case is remanded for further proceedings not inconsistent with this opinion."
  • [JUSTICE THOMAS [true to form in requiring a ridiculous level of formality]
    • [CB]Covington interacted with the police under highly informal circumstances, while he bled from a fatal gunshot wound. The police questioning was not “a formalized dialogue,” did not result in “formalized testimonial materials” such as a deposition or affidavit, and bore no “indicia of solemnity.”"
  • [JUSTICE SCALIA, a little cranky, saying the Declarant's is the only relevant intent:]
    • [CB] Crawford and Davis did not address whose perspective matters—the declarant’s, the interrogator’s, or both—when assessing “the primary purpose of [an] interrogation.” In those cases the statements were testimonial from any perspective. I think the same is true here, but because the Court picks a perspective so will I: The declarant’s intent is what counts. In-court testimony is more than a narrative of past events; it is a solemn declaration made in the course of a criminal trial. For an out-of-court statement to qualify as testimonial, the declarant must intend the statement to be a solemn declaration rather than an unconsidered or offhand remark; and he must make the statement with the understanding that it may be used to invoke the coercive machinery of the State against the accused.1"
    • [CB] A declarant-focused inquiry is also the only inquiry that would work in every fact pattern implicating the Confrontation Clause. The Clause applies to volunteered testimony as well as statements solicited through police interrogation."
    • [CB]Looking to the declarant’s purpose (as we should), this is an absurdly easy case. Roughly 25 minutes after Anthony Covington had been shot, Detroit police responded to a 911 call reporting that a gunshot victim had appeared at a neighborhood gas station. They quickly arrived at the scene, and in less than 10 minutes five different Detroit police officers questioned Covington about the shooting. Each asked him a similar battery of questions: “what happened” and when, “who shot” the victim,” and “where” did the shooting take place. After Covington would answer, they would ask follow-up questions, such as “how tall is” the shooter, “[h]ow much does he weigh,” what is the exact address or physical description of the house where the shooting took place, and what chain of events led to the shooting. The battery relented when the paramedics arrived and began tending to Covington’s wounds. From Covington’s perspective, his statements had little value except to ensure the arrest and eventual prosecution of Richard Bryant. He knew the “threatening situation,” Davis, had ended six blocks away and 25 minutes earlier when he fled from Bryant’s back porch. The Court’s distorted view creates an expansive exception to the Confrontation Clause for violent crimes. Because Bryant posed a continuing threat to public safety in the Court’s imagination, the emergency persisted for confrontation purposes at least until the police learned his “motive for and location after the shooting.” It may have persisted in this case until the police “secured the scene of the shooting” two-and-a-half hours later."
    • [CB] But today’s decision is not only a gross distortion of the facts. It is a gross distortion of the law—a revisionist narrative in which reliability continues to guide our Confrontation Clause jurisprudence, at least where emergencies and faux emergencies are concerned. The Court announces that in future cases it will look to “standard rules of hearsay, designed to identify some statements as reliable,” when deciding whether a statement is testimonial.... We tried that approach to the Confrontation Clause for nearly 25 years before Crawford rejected it as an unworkable standard unmoored from the text and the historical roots of the Confrontation Clause...."
  • [CB]Justice GINSBURG, dissenting.
    • [I agree with Justice Scalia that Covington’s statements were testimonial, and this case should invite us to consider whether there is indeed an exception to the Crawford doctrine for dying declarations.]"


4.15. Applying Crawford: The Cross-Examination Factor

Problem 4-R: "Your Witness

  • Authors' Notes, with my comments.
    • The problem rests on Vaska v. State, 135 P.3d 1011 (Alaska 2006), which is cited and briefly quoted in the text in note 2 (page 410).
  • Malavet (Updated Fall 2013)
    • Consider these questions first: Do the statements fit a hearsay rule exception? Which one? How? Are they "testimonial"?
      • I will lecture on this for the most part because I really think that the meaningful standard for cross is NOT found in the Sixth Amendment cases. Rather, it is to be found in the RULES.
    • The 6th Amendment Cases
      • Crawford and Davis are Expressly Discouraging
        • Adequate availability for cross-examination at trial
        • What constitutes a prior opportunity to cross-examine
      • California v. Green [pp. 405-6]
        • Deferred cross of “unremembering” witness is sufficient
      • Nelson v. O’Neil [pp. 406-7]
        • Minimal opportunity to cross suffices
      • Delaware v. Fensterer [p. 407]
        • “Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.”
      • US v. Owens [p. 407]
        • Actual medical amnesia not a bar to cross
  • AUTHORS ON PROBLEM 4-O Now at page 408
  • The real question is whether the defense has an opportunity for “full and effective cross-examination” under Green if the prosecutor calls the witness and does not broach with her either the prior statements that the prosecutor intends to use or the acts, events, or conditions described in them. We think the answer should be No, for three reasons.
    • First, prosecutor did not carry burdens. As a formal matter the burdens of production and persuasion rest on the prosecutor, and these burdens include not only bringing the witness to court but adducing her testimony. Calling T.E. and running through the preliminaries of age and school grade and knowing truth from falsehood is not an attempt to get her testimony, but rather an attempt to pass the buck so that the defense must play “the heavy” and broach the subject that nobody wants to touch, which is whether T.E. was abused. The prosecutor’s polite litany of questions does not even show in any convincing way that T.E. has forgotten what happened to her on the earlier occasion.
    • Second, there must be something to test or challenge. When a witness like T.E. gives no substantive evidence, the defense has nothing to test or challenge. When T.E. is excused, she has said nothing about the offense and, at least as a formal matter, she has given no evidence against the defendant. Of course her presence may well raise a sympathetic reaction – here is a ten-year-old child who may have been abused when she was only three – but defendant literally has nothing that he can test or challenge, and there is no occasion for the process of cross-examination to operate. Perhaps this objection could be obviated if the prosecutor first adduced testimony by Natalia and Dr. Booker and then called T.E., but of course Rule 801(d)(1)(A) would not be available if the prosecutor pursued this course. Presumably he would have to invoke the child victim hearsay exception or the exception for statements to physicians (in the case of her statements to Dr. Booker).
    • Third, defendants cannot afford to initiate challenges. In cases like this one in which the witness/declarant has said nothing that goes to the merits, defendants cannot afford to challenge what has yet to be offered. If defense counsel in the position that Ms Dawson faced in the problem were to question the child about events that she has not alluded to, and if the questions were fobbed off with the child being unable to say anything or unable to recall anything, it would appear as a failed challenge to the case. If T.E. were to remember the events, or even the statement, and if she again described events in a manner consistent with her statement or if she simply stood by her statement, again the defense would have failed in an apparent challenge. Defendants cannot afford to be seen to have done such things, and so it is perfectly rational for lawyers like Ms Dawson to decline what is in fact a non-opportunity. In short, it makes a real difference whether defendants are left to do all the heavy lifting, and a nonopportunity cannot be viewed as an opportunity.
  • What the court actually did:
    • As noted above, the Problem rests on the Vaska decision from Alaska, where the court worked with a version of Rule 801(d)(1)(A) that differs from the federal provision in two ways. One is that the Alaska rule reaches all prior inconsistent statements, not just those given in proceedings under oath. The other, more important, is that the Alaska provision expands the crossexaminability provision in a way that suggests, if it does not quite say so expressly, that the proponent has the burden of actually calling the witness and asking her about the prior statement. Thus Alaska Rule 801(d)(1)(A) creates an exception for prior statements by a witness if:
      • The declarant testifies at the trial or hearing and the
        statement is (A) inconsistent with the declarant’s testimony.
        Unless the interests of justice otherwise require, the prior
        statement shall be excluded unless (i) the witness was so
        examined while testifying as to give the witness an
        opportunity to explain or to deny the statement or (ii) the
        witness has not been excused from giving further testimony
        in the action.
    • (In note 2, we quote the critical phrases of this provision.) In Vaska the court concluded that indeed the prior statement was inconsistent with T.E.’s trial testimony. Inconsistency does not require “textual conflict,” and other circumstances such as “lack of memory at trial” may suffice. Nevertheless, the prosecutor did not adequately invoke the Alaska Rule because he did not adequately explore the prior statement with T.E.
  • Malavet
    • More generally, however, the problem is intended to raise the question of what is an adequate level of availability for cross-examination at trial, or what constitutes a prior opportunity to cross-examine.
    • The readings explore the existing caselaw, especially California v. Green, starting at page 391 (and again at p. 398 for the prior opportunity to cross); O´Neil at page 393 (minimal opportunity to cross suffices); Fensterer, p. 393 ("Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 19 (1985)"); and US v. Owens, pp. 393-394 (actual amnesia not a bar to cross).
    • For a discussion of what "meaningful" cross-examination (as opposed to any opportunity to do so) might mean refer to Prof. Mueller's work cited in your book:
      • [CB] 18. One of us has criticized Green. See Mueller, Cross-Examination Earlier or Later: When Is It Enough to Satisfy Crawford? 19 Regent U. L. Rev. 319 (2007) (Green "played up the extent" to which Porter was a friend to the defense and "played down the extent" to which cross was impeded; Green "ignored the practitioner's view of cross," requiring drama and appeal to emotions).

4.16. Public Records and Government Declarants:

Meléndez-Diaz v. Massachusetts

[Click here to download pdf]

  • [I. The court first establishes admissibility under applicable Mass. Law, specifically,]
    • [Mass. Gen. Laws, Ch. 111, § 13: Certificates of Results of Analyses; Evidence; Judicial Notice of Signature.
    • [CB] The analyst or an assistant analyst of the department or of the University of Massachusetts medical school shall upon request furnish a signed certificate, on oath, of the result of the analysis provided for in the preceding section to any police officer or any agent of such incorporated charitable organization, and the presentation of such certificate to the court by any police officer or agent of any such organization shall be prima facie evidence that all the requirements and provisions of the preceding section have been complied with. This certificate shall be sworn to before a justice of the peace or notary public, and the jurat shall contain a statement that the subscriber is the analyst or an assistant analyst of the department. When properly executed, it shall be prima facie evidence of the composition, quality, and the net weight of the narcotic or other drug, poison, medicine, or chemical analyzed or the net weight of any mixture containing the narcotic or other drug, poison, medicine, or chemical analyzed, and the court shall take judicial notice of the signature of the analyst or assistant analyst, and of the fact that he is such. A signed certificate of drug analysis furnished by an analyst, assistant analyst or other designated employee of the Drug Enforcement Administration of the United States Department of Justice, which conforms with the requirements of this section, shall be prima facie evidence of the composition, quality, and when appropriate, the net weight of the narcotic or other drug, poison, medication or chemical analyzed or the net weight of any mixture containing the narcotic or other drug, poison, medicine or chemical analyzed and the court shall take judicial notice of the signature of the analyst, assistant analyst or other designated employee and the fact that he is such.]
  • II [Affidavits are "Testimonial"]
    • [CB] The Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 403 (1965), provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” In Crawford, after reviewing the Clause’s historical underpinnings, we held that it guarantees a defendant’s right to confront those “who ‘bear testimony’” against him. A witness’s testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination.
    • [Court quotes Crawford’s description of testimonial statements.] [Crawford Rule]
    • There is little doubt that the documents at issue in this case fall within the “core class of testimonial statements” thus described. ***
    • [CB] In short, under our decision in Crawford the analysts’ affidavits were testimonial statements, and the analysts were “witnesses” for purposes of the Sixth Amendment. Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to “‘be confronted with’” the analysts at trial.[Note 1]
  • [CB, Footnote 1]
    • 1 Contrary to the dissent’s suggestion, we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case. While the dissent is correct that “[i]t is the obligation of the prosecution to establish the chain of custody,” this does not mean that everyone who laid hands on the evidence must be called. As stated in the dissent’s own quotation from United States v. Lott, 854 F.2d 244, 250 (7th Cir. 1988), “gaps in the chain [of custody] normally go to the weight of the evidence rather than its admissibility.” It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live. Additionally, documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records.
  • Malavet
    • This is Justice Scalia's response to the dissent language that I showed. I would be weary, as I mentioned in class, of these "gaps". Moreover, some state laws and court decisions DO require the entire chain of custody.
    • More fundamentally, it does seem difficult to reconcile this proviso with the production-of-witness requirement that is the focus of the decision. Working with the language of the majority, I would try to use the Certification by the Clerk discussion to create a historical basis for a dichotomy between authentication and chain of custody on the one hand, and the actual analysis and report thereof on the other.
  • A [Accusatory v. Inculpatory Witnesses?]
    • [CB] Respondent first argues that the analysts are not subject to confrontation because they are not “accusatory” witnesses, in that they do not directly accuse petitioner of wrongdoing; rather, their testimony is inculpatory only when taken together with other evidence linking petitioner to the contraband. This finds no support in the text of the Sixth Amendment or in our case law.
    • [CB] *** The text of the Amendment contemplates two classes of witnesses – those against the defendant and those in his favor. The prosecution must produce the former; the defendant may call the latter. Contrary to respondent’s assertion, there is not a third category of witnesses, helpful to the prosecution, but somehow immune from confrontation.
  • B [Conventional Ex-Parte Witnesses? Three bases]
    • [CB] Respondent and the dissent argue that the analysts should not be subject to confrontation because they are not “conventional” (or “typical” or “ordinary”) witnesses of the sort whose ex parte testimony was most notoriously used at the trial of Sir Walter Raleigh. It is true, as the Court recognized in Crawford, that ex parte examinations of the sort used at Raleigh’s trial have “long been thought a paradigmatic confrontation violation.” But the paradigmatic case identifies the core of the right to confrontation, not its limits. The right to confrontation was not invented in response to the use of the ex parte examinations in Raleigh’s Case, 2 How. St. Tr. 1 (1603). That use provoked such an outcry precisely because it flouted the deeply rooted common-law
      tradition “of live testimony in court subject to adversarial testing.” Crawford
  • [CB: (1) Contemporaneousness]
    • *** the affidavits were completed almost a week after the tests were performed (the tests were performed on November 28, 2001, and the affidavits sworn on December 4, 2001). But regardless, the dissent misunderstands the role that “near-contemporaneity” has played in our case law. The dissent notes that that factor was given “substantial weight” in Davis, but in fact that decision disproves the dissent’s position. There the Court considered the admissibility of statements made to police officers responding to a report of a domestic disturbance. By the time officers arrived the assault had ended, but the victim’s statements – written and oral – were sufficiently close in time to the alleged assault that the trial court admitted her affidavit as a “present sense impression.” Though the witness’s statements in Davis were “near-contemporaneous” to the events she reported, we nevertheless held that they could not be admitted absent an opportunity to confront the witness.
    • [CB] A second reason the dissent contends that the analysts are not “conventional witnesses” (and thus not subject to confrontation) is that they “observe[d] neither the crime nor any human action related to it.” The dissent provides no authority for this particular limitation of the type of witnesses subject to confrontation. Nor is it conceivable that all witnesses who fit this description would be outside the scope of the Confrontation Clause. For example, is a police officer’s investigative report describing the crime scene admissible absent an opportunity to examine the officer? The dissent’s novel exception from coverage of the Confrontation Clause would exempt all expert witnesses – a hardly “unconventional” class of witnesses.
    • [CB] A third respect in which the dissent asserts that the analysts are not “conventional” witnesses and thus not subject to confrontation is that their statements were not provided in response to interrogation. As we have explained, “[t]he Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation.” Davis [Note that the Court clarifies that it is the interrogation as a whole, rather than the form of any one question that is decisive.]. Respondent and the dissent cite no authority, and we are aware of none, holding that a person who volunteers his testimony is any less a “‘witness against’ the defendant,” than one who is responding to interrogation. In any event, the analysts’ affidavits in this case were presented in response to a police request. If an affidavit submitted in response to a police officer’s request to “write down what happened” suffices to trigger the Sixth Amendment’s protection (as it apparently does, see Davis (THOMAS, J., concurring in judgment in part and dissenting in part)), then the analysts’ testimony should be subject to confrontation as well.
  • C [Historical v. Scientific Testimony]
    • [CB] This argument is little more than an invitation to return to our overruled decision in Roberts, which held that evidence with “particularized guarantees of trustworthiness” was admissible notwithstanding the Confrontation Clause. What we said in Crawford in response to that argument remains true:

      To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. . . . Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes. [Emphasis added].
    • [Possible Expert Bias and other defects in this kind of testimony --which should be explored in cross-examination-- are discussed at some length in pages 5-7.]
  • D [Business/Public Records]
    • [CB] Documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. See FRE 803(6). But that is not the case if the regularly conducted business activity is the production of evidence for use at trial. Our decision in Palmer v. Hoffman, 318 U.S. 109 (1943), made that distinction clear. There we held that an accident report provided by an employee of a railroad company did not qualify as a business record because, although kept in the regular course of the railroad’s operations, it was “calculated for use essentially in the court, not in the business.”7 The analysts’ certificates – like police reports generated by law enforcement officials – do not qualify as business or public records for precisely the same reason. See FRE 803(8) (defining public records as “excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel”).
    • [CB] Respondent also misunderstands the relationship between the business-and-official-records hearsay exceptions and the Confrontation Clause. As we stated in Crawford: “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.” Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because – having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial – they are not testimonial. Whether or not they qualify as business or official records, the analysts’ statements here – prepared specifically for use at petitioner’s trial – were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment.
  • E [Power to Subpoena]
    • [CB]Respondent asserts that we should find no Confrontation Clause violation in this case because petitioner had the ability to subpoena the analysts. But that power – whether pursuant to state law or the Compulsory Process Clause – is no substitute for the right of confrontation. Unlike the Confrontation Clause, those provisions are of no use to the defendant when the witness is unavailable or simply refuses to appear. Converting the prosecution’s duty under the Confrontation Clause into the defendant’s privilege under state law or the Compulsory Process Clause shifts the consequences of adverse-witness no-shows from the State to the accused. More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court. Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses. [Emphasis added].
  • F [Policy or Convenience? The court notes that most cases are pleaded out]
    • [CB] Perhaps the best indication that the sky will not fall after today’s decision is that it has not done so already. Many States have already adopted the constitutional rule we announce today, while many others permit the defendant to assert (or forfeit by silence) his Confrontation Clause right after receiving notice of the prosecution’s intent to use a forensic analyst’s report, id. (cataloging such state laws). Despite these widespread practices, there is no evidence that the criminal justice system has ground to a halt in the States that, one way or another, empower a defendant to insist upon the analyst’s appearance at trial. Indeed, in Massachusetts itself, a defendant may subpoena the analyst to appear at trial, and yet there is no indication that obstructionist defendants are abusing the privilege.
  • [Notice-and-Demand Statutes: Timing and sequence of objecting, NOT burden-shifting]
    • [CB] The dissent finds this evidence “far less reassuring than promised.” But its doubts rest on two flawed premises. First, the dissent believes that those state statutes “requiring the defendant to give early notice of his intent to confront the analyst,” are “burden-shifting statutes [that] may be invalidated by the Court’s reasoning.” That is not so. In their simplest form, notice-and-demand statutes require the prosecution to provide notice to the defendant of its intent to use an analyst’s report as evidence at trial, after which the defendant is given a period of time in which he may object to the admission of the evidence absent the analyst’s appearance live at trial. See, e.g, Ga. Code Ann. §35-3-154.1 (2006); Tex. Code Crim. Proc. Ann., Art. 38.41, §4 (Vernon 2005); Ohio Rev. Code Ann. §2925.51(C) (West 2006). Contrary to the dissent’s perception, these statutes shift no burden whatever. The defendant always has the burden of raising his Confrontation Clause objection; notice-and-demand statutes simply govern the time within which he must do so. States are free to adopt procedural rules governing objections. It is common to require a defendant to exercise his rights under the Compulsory Process Clause in advance of trial, announcing his intent to present certain witnesses. See FRCrimP 12.1(a), (e), 16(b)(1)(C); Comment: Alibi Notice Rules: The Preclusion Sanction as Procedural Default, 51 U. Chi. L.Rev. 254, 254-255, 281-285 (1984) (discussing and cataloguing State notice-of-alibi rules). There is no conceivable reason why he cannot similarly be compelled to exercise his Confrontation Clause rights before trial.
    • [CB] 14. We of course express no view as to whether the error was harmless. The Massachusetts Court of Appeals did not reach that question and we decline to address it in the first instance. In connection with that determination, however, we disagree with the dissent’s contention that “only an analyst’s testimony suffices to prove [the] fact” that “the substance is cocaine.” Today’s opinion, [11] while insisting upon retention of the confrontation requirement, in no way alters the type of evidence (including circumstantial evidence) sufficient to sustain a conviction.
  • [CB; Dissent]
    • [CB] Consider how many people play a role in a routine test for the presence of illegal drugs. One person prepares a sample of the drug, places it in a testing machine, and retrieves the machine’s printout – often, a graph showing the frequencies of radiation absorbed by the sample or the masses of the sample’s molecular fragments. A second person interprets the graph the machine prints out – perhaps by comparing that printout with published, standardized graphs of known drugs. Meanwhile, a third person – perhaps an independent contractor – has calibrated the machine and, having done so, has certified that the machine is in good working order. Finally, a fourth person-perhaps the laboratory’s director-certifies that his subordinates followed established procedures.
  • Malavet
    • As I discuss above, I am not sure that Justice Scalia's response to this is entirely supportable.


A note on Bullcoming v. New Mexico

  • Bullcoming v. New Mexico, 131 S.Ct. 2705 (Decided June 23, 2011) 5-4 opinion issued after Mich. v. Bryant.
    • Justices Sotomayor and Kagan joined Justice Ginsburg's majority opinion in Bullcoming applying Melendez to a laboratory report of blood alcohol level in a drunk driving prosecution.
    • Justice Sotomayor also issued a concurring opinion explaining her view that the FRE are relevant to determining the primary purpose behind the production/preservation of the hearsay statement. This is a better "fit" with Justice Scalia's opinions when he writes that the "circumstances" or "purpose" of the production or the "nature" of the statement is non-testimonial. So, the tail may not be wagging the dog, at least outside the emergency exception.
    • "Contrary to the dissent's characterization, Bryant deemed reliability, as reflected in the hearsay rules, to be "relevant," ..., not "essential," post, at 5 (opinion of KENNEDY, J.). The rules of evidence, not the Confrontation Clause, are designed primarily to police reliability; the purpose of the Confrontation Clause is to determine whether statements are testimonial and therefore re-quire confrontation."
    • Justice Sotomayor also issued a concurring opinion explaining her view that the FRE are relevant to determining the primary purpose behind the production/preservation of the hearsay statement. This is a better "fit" with Justice Scalia's opinions when he writes that the "circumstances" or "purpose" of the production or the "nature" of the statement is non-testimonial. So, the tail may not be wagging the dog, at least outside the emergency exception.

Melendez, Bullcoming and Williams

Melendez involved chemical analysis of drugs.

Bullcoming involved blood-alcohol lab reports in a drunk driving prosecution. The majority, 5-4, applied Crawford to label them "testimonial" and thus to require a result similar to Melendez-Diaz.

Williams involved the use of forensic reports of DNA analysis prepared at an outside laboratory (independent relative to law-enforcement) by a state technician who testified at trial and conducted separate testing of her own. This was a bench trial, and the court emphasized that the judge, unlike a jury, would not be confused about the proper use of the evidence. The plurality opinion by Justice Alito announced the result, but only garnered four full votes (his own and that of Chief Justice Roberts and Justices Kennedy and Breyer), Justice Breyer issued a separate opinion concurring in the ruling (but indicating he would have wanted additional briefing and reargument during the next term); Justice Thomas issued a separate opinion concurring in the judgment but concluding that the private laboratory report was too "informal" to be considered "testimonial"; Justice Kagan issued a lengthy dissent joined by Justices Scalia, Ginsburg and Sotomayor.

Although the passage of time and the use of the cases by the lower courts has given us some clarity, the court has made a bit of a mess of the area of laboratory reports with Williams. But the concerns are matters of trial tactics and the use of government expert witnesses in criminal trials.

However, as I noted above, Michigan v. Bryant shows you the primary effect and current status of the Crawford doctrine: All justices in the current court agree with the new interpretation the Sixth Amendment to bar the use of “Testimonial” hearsay absent a showing of unavailability and a prior opportunity to cross-examine, and they all buy into the Emergency Doctrine. They disagree on what CLASSIFIES as “Testimonial” or as an “Ongoing Emergency”. Normal judicial discretion differences. But they agree on the categories that represent a total abandonment of Ohio v. Roberts as a constitutional standard for applying the Confrontation Clause. Quite remarkable.


NEW Problem 4-N: "You Can't Use the Police Report"

    • Heart of the Matter.  This Problem takes students through the three clauses of FRE 803(8)(A), and suggests that clauses (ii) and (iii) are the applicable provisions.  Clause (i) doesn’t apply because the purpose is not to prove what the police did, but rather to prove that the defendants were or were not at home.  There are respectable arguments for admitting the police report both for the defense and for the prosecutor despite the use restrictions and despite the confrontation concerns that arise when the prosecutor offers such reports.
      • (A) Defense Proffer.  When the police report states that Chuck and Cheryl answered the knock and said they’d not heard unusual or loud noises, pretty clearly we have a record reflecting a “matter observed.”  But police are “law-enforcement” personnel, and records prepared by such people are, according to FRE 803(8)(A)(ii), not admissible “in a criminal case.”  The purpose of this use restriction, however, is to protect defendants against the use of police reports, as the Smith and Burtul cases recognize (note 1 after the Problem).  If one pays more attention to the purpose of the use restriction than to the language, the police report should be admitted for the defense.  Regardless, the police report also fits clause (iii) because it reflects “factual findings from a legally authorized investigation.”  The use restriction in this clause allows use of the exception “against the government in a criminal case.”  Importantly, then, the coverage of clauses (ii) and (iii) overlap, and a report can fit both categories comfortably.  If so, the use restriction in clause (ii) does not prevent resort to clause (iii). 
      • (B) Prosecutor’s Proffer.  When the police report states that nobody was home at the unit rented by the defendants, pretty clearly we have again both a “matter observed” under clause (ii) and “factual findings from a legally authorized investigation” under clause (iii).  The use restrictions in both clauses seem to apply (clause (ii) bars reports by “law-enforcement personnel” and in criminal cases clause (iii) allows only use “againstthe government”).  But once again it seems possible to get around these restrictions:  The cases support the view that “routine and nonadversarial” records are admissible despite the restrictions, as the decisions in Puente, Orozco and Brown indicate (note 2 after the Problem).  Routine and nonadversarial are descriptors of ordinary observations made outside the context of any particular criminal investigation (like recording the license number of every car that crosses the border between California and Mexico or reporting the serial numbers of dollar bills appearing in Detroit).  Objections based on the Confrontation Clause may be dealt with in similar fashion:  The decisions in Lopez and Copeland (note 3 after the Problem) recognize that similarly routine observations, not done in anticipation of prosecution or trial, are nontestimonial in nature and their use against defendants in criminal cases does not violate confrontation rights. 

This is the End!