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<i>Crawford</i> update: Part One
By Hon. Elia V. Pirozzi

Crawford v. Washington, 541 U.S. 36 (2004), held that the admission of a "testimonial" hearsay statement violates the Sixth Amendment's Confrontation Clause unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant.

The objective of this article and accompanying self-study test is to provide readers with a review of the Crawford opinion and to discuss the latest developments in the field of confrontation of witnesses under Crawford. Readers will learn about defining "testimonial" statements, assessing the unavailability of a hearsay declarant, and a defendant's prior opportunity for cross-examination, as well as the latest cases dealing with Crawford's application to ongoing police emergencies and 911 calls. (Part Two of this article on Sept. 24 will discuss the latest developments regarding forensic analysis of evidence and surrounding issues.)


Before Crawford, the Sixth Amendment's Confrontation Clause did not preclude admission of a statement by an unavailable declarant if the statement: (1) fell within a "firmly rooted hearsay exception" or (2) possessed "particular guarantees of trustworthiness." Ohio v. Roberts, 448 U.S. 56 (1980). Under Crawford, however, even if a statement falls within an established exception to the hearsay rule, a criminal defendant may, under the Confrontation Clause, exclude a testimonial hearsay statement offered in a criminal trial. Before the Crawford decision, the analytical emphasis by the courts was on reliability, but the rationale of Crawford and its progeny is based on the historical principle of right of the defendant to confront. Accordingly, the central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting the evidence to rigorous testing in an adversarial proceeding before the trier of fact. Maryland v. Craig, 497 U.S. 836 (1990).

Application of Crawford

The Confrontation Clause is implicated only if the testimonial hearsay statement is offered to prove the truth of the matter. People v. Combs, 34 Cal. 4th 821 (2004). But, even if the statement is offered to prove the truth of the matter, the Confrontation Clause does not apply in civil commitments under the Sexually Violent Predator Act (People v. Angulo, 129 Cal. App. 4th 1349 (2005)), probation violation hearings (People v. Stanphill, 170 Cal. App. 4th 61 (2009)), or juvenile dependency hearings (In re April C., 131 Cal. App. 4th 599 (2005)). Similarly, the Confrontation Clause does not apply to felony preliminary hearings. Whitman v. Superior Court, 54 Cal. 3d 1063 (1991) (right of confrontation not violated by allowing hearsay testimony at preliminary hearing); see also Peterson v. California, 604 F.3d 1166 (9th Cir. 2010)). The Sixth Amendment right to confrontation is essentially a trial right.

"Testimonial" v. "Nontestimonial"

General Analytical Principles

To be properly excludable from evidence under the Confrontation Clause, a statement must be "testimonial," meaning, generally, it was made under circumstances that reasonably suggest its future use at trial (see below, e.g., possessing the "formality and solemnity characteristic of testimony," or having been given and received for a testimonial purpose such as to prove a past fact for potential use at a criminal trial). The state Supreme Court in People v. Cage, 40 Cal. 4th 965 (2007), extracted several principles from the U.S. Supreme Court decision in Davis v. Washington, 547 U.S. 813 (2006), thereby furnishing practitioners some guidance when assessing the character and context of such statements under Crawford.

* The Confrontation Clause applies to testimonial hearsay - out of court statements in "purpose and form" of witness testimony at trial; a statement, to be considered "testimonial" in nature, must be made under circumstances that impart the "formality and solemnity characteristic of testimony";

* A statement must be given and received for a testimonial purpose such as to prove a past fact for potential use in a criminal prosecution to be deemed "testimonial" in character;

* The primary purpose of a statement is to be assessed "objectively" considering the totality of circumstances relating to the intent of the principals in the conversation;

* The requisite formality exists in a "nonemergency" situation when a statement is given in response to an inquiry from law enforcement; and

* A statement given to law enforcement for the principal purpose of dealing with a "contemporaneous emergency," in contrast to obtaining evidence for prospective use at a later criminal proceeding, is not testimonial.

Although the term "testimonial statement" was not specifically defined in Crawford, the court in its opinion identified a certain "core class" of such statements to include prior unconfronted testimony, affidavits and custodial interrogations.

Statements to Police During Emergency: Crime Scene Investigations

A statement made to law enforcement during an emergency will usually be found to be nontestimonial. The U.S. Supreme Court has found that "[t]he existence of an emergency or the parties' perception that an emergency is ongoing is among the most important circumstances that courts must take into account in determining whether an interrogation is testimonial." Michigan v. Bryant, 131 S. Ct. 1143 (2011). In Bryant, the court fashioned a "primary purpose test" to evaluate whether the primary purpose of the police interrogation was to meet an ongoing emergency or, conversely, to accumulate information for investigation and potential criminal prosecution. In coming to this determination, the court emphasized that the "primary purpose" analysis is objective, necessitating consideration of:

* The circumstances surrounding the law enforcement encounter (e.g., questioning at the crime scene instead of questioning at a police station);

* Whether an "ongoing emergency" existed at the time ("a highly context-dependent inquiry") involving an assessment of the duration and scope of the emergency (e.g., the type of weapon utilized by the perpetrator and the victim's medical condition);

* The encounter's informality (whether the officers questioned and responded to the victim in a disorganized fashion or, by contrast, conducted a structured interrogation); and

* The statements and actions of both the victim and the law enforcement personnel because law enforcement and the declarant may have differing or "mixed" motives.

In Bryant, the police found the victim mortally wounded from a gunshot (and who died hours later) in a gas station parking lot some distance from where the crime took place. The police asked what had happened, who shot him, and where the shooting had occurred, at which time the victim identified the shooter and provided the location. The court held that the circumstances of the interaction between the victim and police objectively indicated that the primary purpose of the interrogation was to enable the police to meet an ongoing emergency.

People v. Nelson, 190 Cal. App. 4th 1453 (2010) (a case decided before Bryant), represents an additional example of how statements made under exigent circumstances have been interpreted by the courts. In Nelson, a statement made by a shooting victim to a firefighter identifying the defendant as the perpetrator of a crime, and in response to a brief inquiry relating to concerns for immediate public safety and under circumstances where the victim was being rushed to the hospital in an ambulance for treatment of a potentially fatal wound, was deemed nontestimonial.

911 Calls

The initial inquiries conducted in connection with a 911 call are not ordinarily directed to establish or prove past events that are possibly relevant to a subsequent criminal prosecution. Instead, according to Davis v. Washington, they are designed to describe present circumstances requiring the assistance of law enforcement personnel. In Davis v. Washington, it was held that "frantic answers" given by the victim over the phone in an unstable environment were for the primary purpose of interrogation to meet an ongoing emergency and not to generate a statement from a witness to be used later at a criminal proceeding. Similarly, in People v. Johnson, 189 Cal. App. 4th 1216 (2010), a victim called 911 and reported that the defendant (her husband) had shot at her while she was driving, and she provided his description and the physical symptoms she was experiencing as a result of the incident. When the victim failed to appear at trial, the trial court admitted the audiotape of the victim's statements to the 911 dispatcher. The Court of Appeal found that "[S]tatements made immediately after, and in response to, a violent assault should be treated as presumptively made during a contemporaneous emergency."

But, according to Davis v. Washington, questioning during a 911 call can evolve from determining the need for emergency assistance to other information obtained when the emergency circumstances terminate. See also Hammon v. Indiana, 547 U.S. 813 (2006) (a separate companion case decided in Davis), where during a domestic violence investigation, the police interview of the victim took place in a separate room from the suspect some time after the event took place and no emergency circumstances were present. The statements made by victim were deemed testimonial by the court.

Unavailability of Declarant

The definition of witness "unavailability" is codified under Evid. Code Section 240(a)(1)-(6). Thus, a declarant is unavailable to testify when he or she is not present at the trial or when some other reason prevents the person from testifying due to physical or mental disability (Evid. Code Section 240(a)(3)), or proper invocation of a privilege (Evid. Code Section 240(a)(1)). But if the defendant caused the declarant's unavailability intending to render him or her unavailable for trial, then the declarant's statements are admissible under a forfeiture by wrongdoing theory. Giles v. California, 554 U.S. 353 (2008); see also People v. Banos, 178 Cal. App. 4th 483 (2009) (statements admissible because defendant caused victim's unavailability "both to prevent her from cooperating with authorities and to prevent her from testifying at trial"). Giles noted, however, that domestic violence cases are unique and can create circumstances when such intent can be inferred from prior occurrences of abuse (e.g., intent to dissuade victim from seeking assistance). The pertinent forfeiture by wrongdoing statute in California is Evid. Code Section 1390(a) (repealed January 2016). The requisite burden of proof for forfeiture is preponderance of the evidence to be established at a foundational hearing. Evid. Code Section 1390(b)(1).

A declarant can be unavailable if "good faith" efforts by prosecutors to locate the declarant and procure his or her attendance at trial have failed. Evid Code Section 240(a)(5). But this prosecutorial duty has been held to connote persevering application, untiring efforts in good earnest, and efforts of a substantial character. People v. Roldan, 205 Cal. App. 4th 969 (2012). There is also a special application of this rule as it pertains to sexual assault cases. See People v. Cogswell, 48 Cal. 4th 467 (2010) (implementation of custody and delivery provisions of the Uniform Act to Secure Witnesses From Without the State in Criminal Cases not required to establish unavailability so long as due diligence shown by prosecution).

Opportunity to Cross-Examine

A prior testimonial statement offered against a criminal defendant will be barred unless the declarant is available at trial and subject to cross-examination or, alternatively, was subject to cross-examination at an earlier proceeding. For instance, a defendant did not cross-examine a declarant when the declarant was never subject to cross-examination regarding the facts at issue in the trial. See U.S. v. Owens, 484 U.S. 554 (1988). But a declarant may have been subject to cross-examination by testifying at a preliminary hearing. People v. Hollinquest, 190 Cal. App. 4th 1534 (2010). An actual cross-examination, however, is not required - only that the opportunity for "effective" cross-examination existed is required. See People v. Smith, 30 Cal. 4th 581 (2003). Consequently, Crawford does not require that the opportunity for cross-examination be effectively exercised. Furthermore, if a declarant is available for cross-examination at trial and is not cross-examined, his or her extrajudicial statement may not be excluded under Crawford. See People v. Lewis & Oliver, 39 Cal. 4th 978 (2006). But a defendant's confrontation rights will be violated when he or she is precluded from conducting an appropriate cross-examination subject to a trial judge's discretion to impose reasonable limits on cross-examination. See People v. Quartermain, 16 Cal. 4th 600 (1997); Evid. Code Section 765(a).

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