Academic journal article St. Thomas Law Review

Hearsay after Crawford: A Practitioner's Guide

Academic journal article St. Thomas Law Review

Hearsay after Crawford: A Practitioner's Guide

Article excerpt

I.  INTRODUCTION
II. CRAWFORD AND ITS LEGACY
     A. The Supreme Court's View of the Confrontation Clause
     B. The Supreme Court Holdings as Interpreted by Lower Courts
III. EXCEPTIONS TO THE CONFRONTATION CLAUSE
IV. FROM 2004 TO PRESENT: A TWO-TRACK ANALYSIS
V. CONCLUSION

I. INTRODUCTION

The Sixth Amendment to the U.S. Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." (2)

Although it may appear simple, concise and direct, the language of the Sixth Amendment has been the subject of much discussion. (3) The Confrontation Clause has been inevitably comingled with the hearsay rules, (4) and determining when an out-of-court statement violates the rights of criminal defendants has been no easy task. (5) For many years, it was uncontested, as established in Ohio v. Roberts, that to avoid violating a criminal defendant's Sixth Amendment rights, the Confrontation Clause required a prosecutor who sought to introduce hearsay evidence to establish that the hearsay declarant was unavailable and that the out-of-court statement bore "adequate indicia of reliability." (6) Showing the statement fell under one of numerous hearsay exceptions or bore particularized guarantees of trustworthiness established the necessary level of reliability. (7) However, in 2004, the Supreme Court departed from the rule in Roberts. (8) In Crawford v. Washington, the Supreme Court held that compliance with the Sixth Amendment's Confrontation Clause requires more than an "adequate indicia of reliability." (9)

Pursuant to Crawford, out-of court statements that are testimonial are barred by the Confrontation Clause, unless the declarants are unavailable and the defendant had the prior opportunity to cross-examine the witnesses. (10) Contrary to Roberts, whether a court deems such statements reliable is irrelevant. (11) Despite this direct ruling, the Crawford holding failed to provide a clear answer to the correlation between out-of-court statements and the rights of criminal defendants. (12) Uncertainty has reigned in courts' interpretation of the meaning of "testimonial." (13) A study of the post-Crawford jurisprudence is therefore a must for the practitioner to be able to understand the current connection between hearsay and the Confrontation Clause. This article will focus on the meaning the courts have given to the word "testimonial," which has proven to be a complex and determinative factor when operating under the Confrontation Clause. It will also attempt to create a guide for practitioners with the ambitious goal of facilitating the sometimes-arduous task of determining whether a particular piece of evidence is likely to be deemed testimonial and, consequentially, subject to the Confrontation Clause.

II. CRAWFORD AND ITS LEGACY

A. THE SUPREME COURT'S VIEW OF THE CONFRONTATION CLAUSE

In 2004, and after more than twenty years of established Confrontation Clause jurisprudence, the Supreme Court revisited the Sixth Amendment in Crawford v. Washington. (14) In that case, the State charged the defendant with assault and attempted murder. (15) Because the marital privilege prohibited the wife's in-court testimony, the prosecution, as part of its case in chief, introduced into evidence a recorded statement the defendant's wife gave to police after the incident and which cast doubt on her husband's claim of self defense. (16) The defendant was convicted, and he appealed. (17)

The Court found the introduction of the wife's out-of-court statement violated the Confrontation Clause and held:

   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. … 
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