FOCUS COLUMNBy Mark B. Simons
The Confrontation Clause in the Sixth Amendment to the U.S. Constitution provides, "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." A criminal defendant may rely on this right to exclude a hearsay statement offered by the prosecution at trial, even if the statement satisfies a hearsay exception contained in the California Evidence Code. In Crawford v. Washington, 541 U.S. 36 (2004), the U.S. Supreme Court reinterpreted the Confrontation Clause; subsequent decisions by our high court and by California appellate courts have refined this interpretation. Every judicial officer and lawyer handling criminal matters must be knowledgeable about this area of law.
The objective of this article and accompanying self-study test is to review the basic tenets concerning the scope of the Confrontation Clause following Crawford. Readers will learn about the type of cases where the clause applies and the type of statements covered, including the distinction between testimonial and nontestimonial statements. The article also examines one important exception to the clause, forfeiture by wrongdoing.
'Crawford' and Confrontation
The clause applies only to hearsay introduced by the prosecution in criminal trials. It does not apply to statements that are not offered for their truth. People v. Combs, 34 Cal.4th 821 (2004). In addition, the clause does not apply in juvenile dependency cases, according to In re April C., 131 Cal.App.4th 599 (2005), or to civil commitments under the Sexually Violent Predator Act, as outlined in People v. Angulo, 129 Cal.App.4th 1349 (2005).
Before Crawford, determining whether a statement violated the clause involved a two-step test: whether the declarant was legally unavailable and whether the statement had sufficient indicia of reliability. Ohio v. Roberts, 448 U.S. 56 (1980). Crawford overruled Roberts, and held that the clause barred only those hearsay statements properly labeled as "testimonial." All such statements are precluded unless the declarant is available at trial and subject to cross-examination, or, if unavailable at trial, the declarant had been subject to an earlier cross-examination. People v. Cage, 40 Cal.4th 965 (2007).
In Crawford, the defendant was charged with assault with a knife. His wife had been present at the time of the assault and was arrested and interrogated by the police. At trial she was unavailable because the defendant invoked a marital privilege, and the admission of the tape of her interrogation was introduced under the hearsay exception for statements against penal interest. The Supreme Court held that admission of the wife's statements violated the Confrontation Clause because her statement was not subject to cross-examination when given to the police and the wife was unavailable to be cross-examined at the trial.
Because Crawford limits application of the Confrontation Clause to testimonial hearsay, it is critical to determine precisely what "testimonial" means. Although Crawford itself did not define this term, subsequent cases have begun to flesh it out. In Davis v. Washington, 547 U.S. 813 (2006), the U.S. Supreme Court provided a working definition of "testimonial." In People v. Cage, the California Supreme Court derived several basic principles from Davis:
First, the Confrontation Clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial.
Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony.
Third, the statement must have been given and taken primarily for the purpose ascribed to testimony - to establish or prove some past fact for possible use in a criminal trial.
Fourth, the primary purpose for which a statement was given and taken is to be determined "objectively," considering all the circumstances that might reasonably bear on the intent of the participants in the conversation.
Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses.
Sixth, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial.
Davis v. Washington held that statements made to a 911 operator describing an ongoing assault and the suspect's flight were not testimonial because the statements described current circumstances requiring emergency police assistance, as opposed to a past event. In contrast, People v. Cage found that the statements of a nontestifying victim were testimonial: The statements were made to a police officer at a hospital where the victim was awaiting treatment more than one hour after an assault, and the objective facts showed that the primary purpose of the interview was to investigate a crime and not to facilitate emergency treatment.
After Davis, many cases have focused on determining if witness statements taken by an officer at the scene of a crime are testimonial. In Hammon v. Indiana, 547 U.S. 813 (2006), a separate case decided in Davis, the Supreme Court found that the police interview of a domestic violence victim at the scene, while her husband was located in another part of the house, was an investigation into "possibly past criminal activity," and no emergency existed. Therefore, the resulting statement was testimonial.
The court went on to caution that not all police questions at the scene will yield testimonial statements. Officers "'need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.' ... Such exigencies may often mean that 'initial inquiries' produce nontestimonial statements."
On the other hand, in People v. Johnson, 150 Cal.App.4th 1467 (2007), an officer responded to a report of domestic violence and the defendant opened the door with blood on his hands and shirt. A woman was screaming in the rear of the residence and, upon contacting her, the officer observed she had been beaten. After the officer asked, "What happened?" she responded that the defendant had assaulted her. Johnson held that her statement was nontestimonial. Johnson reasoned that at the time the officer asked his question, the officer may have suspected, but did not know whether a crime had occurred. "The officer interrupted an ongoing emergency and obtained information from the victim in order to assess the situation."
Similarly, People v. Chaney, 148 Cal.App.4th 772 (2007), held that a statement made to officers at the scene was not testimonial when officers were trying to determine the precise nature of the emergency. People v. Pedroza, 147 Cal.App.4th 784 (2007), also found that statements were nontestimonial when the officers were unsure whether they had come upon the scene of an accident or a crime and were trying to ascertain the nature of the situation.
Nonetheless, courts need to be vigilant to ensure that the officer's need to "assess the situation" recognized in Davis does not render all statements at the scene of a crime nontestimonial. If the questions are asked as part of an investigation into a past crime that a reasonable officer believes has occurred, the responses should be ruled testimonial.
The Forfeiture-by-Wrongdoing Exception
Though Crawford rejected the broad-based reliability exception set out in earlier cases, it stated that under certain circumstances, a defendant may forfeit his or her right to challenge a statement under the Confrontation Clause if his or her wrongdoing prevented the uncross-examined witness from appearing at trial. In Davis v. Washington, the Supreme Court stated that Federal Rules of Evidence, Rule 804(b)(6), codifies the forfeiture doctrine. Rule 804(b)(6) provides that a hearsay exception exists for "[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness."
Despite this, in People v. Giles, 40 Cal.4th 833 (2007), the California Supreme Court ruled that the wrongdoing need not be intended to procure the declarant's unavailability in order to make the statements admissible under the forfeiture doctrine. In Giles v. California, 128 S.Ct. 2678 (2008), the U.S. Supreme Court reversed, holding that the forfeiture doctrine applied only when the defendant intended to prevent the absent witness from testifying.
Giles v. California recognized that in domestic violence cases, abuse is often intended to dissuade a victim from resorting to outside help, and thus an intent to silence a victim might be inferred from past incidents of abuse. "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." No such evidence had been developed in the Giles case.
'Crawford's' Application to Records
The latest Crawford case from the U.S. Supreme Court, Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), held that admission at trial of an affidavit from a chemist attesting that evidence seized from a defendant tested positive for cocaine violated the Confrontation Clause. Melendez-Diaz found that the affidavit was testimonial in nature because not only were the affidavits "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial," but "the sole purpose of the affidavits was to provide prima facie evidence of the composition, quality, and the net weight of the analyzed substance," and thus the court could safely assume that the "analysts were aware of the affidavits' evidentiary purpose."
Melendez-Diaz's impact in California is unclear. In People v. Geier, 41 Cal.4th 555 (2007), the California Supreme Court permitted a DNA expert to testify that based on her review of the notes prepared by another, nontestifying expert, the DNA extraction was conducted according to protocol. Based on the genetic profiles extracted, the expert testified that the DNA extracted from the vaginal swabs of the rape-murder victim matched the defendant's DNA. Geier did not involve an affidavit, which appears to be a critical distinction for at least one justice in the Melendez-Diaz majority.
Thus the result in Geier may be unaffected by Melendez-Diaz. In addition, unlike Massachusetts law, California law does not admit affidavits in drug prosecutions to prove the nature of the seized substance. When affidavits or certificates are admissible in California in criminal prosecutions, for example, to establish the absence of a record in a public office (Evidence Code Section 1284), Melendez-Diaz seems to require the presentation of live testimony.
Cases that have held that prison records and rap sheets used to prove prior convictions do not violate the Confrontation Clause and are admissible under Crawford are still valid even after Melendez-Diaz. See People v. Taulton, 129 Cal.App.4th 1218 (2005); People v. Morris, 166 Cal.App.4th 363 (2008). As explained in these opinions, although the documents may ultimately be used in criminal proceedings, they are not prepared for the purpose of providing evidence in criminal trials or for determining whether criminal charges should issue, and are thus nontestimonial.
Mark B. Simons is an associate justice on the California Court of Appeal, First Appellate District. He is the author of "California Evidence Manual" (Thomson-West 2009).