The Right to Confrontation After Crawford
By: Mark Eiglarsh
On August 5, 1999, Michael Crawford was charged with assault and attempted murder for stabbing Kenneth Lee, a man who allegedly tried to rape Crawford's wife Sylvia. After giving Crawford and his wife Miranda warnings, detectives questioned each of them twice. At trial, Crawford claimed self-defense. Because Washington State's marital privilege enabled Crawford to keep his wife off the witness stand, prosecutors played Sylvia's taped statement for the jury. Jurors heard Sylvia describe for detectives how she led her husband to Mr. Lee's apartment and thus, assisted with the assault. This tape-recorded testimony provided jurors with compelling evidence which undermined Crawford's claim of self-defense. The trial court admitted Sylvia's statement finding that it constituted a declaration against her penal interest. Crawford was convicted. On appeal, Crawford argued that because he wasn't able to cross examine Sylvia during his trial, the Confrontation Clause of the 6th Amendment was violated.
In Crawford v. Washington, the U.S. Supreme Court reversed approximately twenty five years of precedent in finding that a "testimonial" statement by a witness not present at trial is inadmissible unless: (1) the witness is unavailable; and (2) the defendant had a prior opportunity to cross-examine the witness at the time the statement was made. 124 S.Ct. 1354 (2004) In arriving at this landmark decision, the Court overruled Ohio v. Roberts which permitted the admissibility of a testimonial statement absent cross-examination as long as the statement bore sufficient "indicia of reliability." 448 U.S. 56 (1980) A statement was previously found to be "reliable" and thus, admitted without the opportunity to cross examine, as long as: (1) the declarant was unavailable; and (2) the statements fell within a hearsay exception or demonstrated "particularized guarantees of trustworthiness." Crawford essentially retains the "unavailability" requirement. However, it rejects the "reliability" prong of Roberts in favor of a strict requirement of actual cross examination. In reversing Crawford's conviction, the Court held that Sylvia's taped statement to detectives was "testimonial" and thus, should not have been admitted unless Crawford was afforded the right to cross-examine her. The Court stated that the only way to guarantee the reliability of what prosecutors called during closing, the "damning evidence" that "completely refutes [Crawford's] claim of self-defense," was through confrontation.
Unfortunately, in deciding Crawford, the Supreme Court failed to clearly define a "testimonial" statement. This leaves Florida courts and others struggling to unravel the mystery of this landmark ruling. In State of Florida v. Hernandez, the 3rd DCA relied on Crawford in ruling that the trial court properly prevented prosecutors from presenting to jurors a pre-arrest taped conversation between the defendant and the non-testifying co-defendant. 875 So.2d 1271 (2004) Prosecutors unsuccessfully argued that the incriminating conversation fell within a hearsay exception. In ruling, the court held that "admission of the co-defendant's statements at trial would violate the Sixth Amendment confrontation clause because Hernandez had no opportunity to cross-examination." To date, there are very few other Florida rulings interpreting Crawford. Based on how courts around the country have been applying Crawford, attorneys in Florida may be successful in convincing courts to find inadmissible the following previously admitted statements when the declarant is unavailable to testify at trial: (1) in a domestic abuse case, a statement made by the "victim" to officers upon their arrival at the scene; (2) in a child abuse case, a video-taped statement made by a child victim to police investigators during a forensic interview; (3) in a DUI case, a nurse's affidavit regarding a blood draw; (4) grand jury testimony; and (5) 911 calls.
Crawford has dramatically altered the landscape of confrontation clause jurisprudence. The focus of courts will now be upon determining which statements are "testimonial" in nature. As explained in Crawford, this approach appears to more accurately reflect the right to confrontation contemplated by the authors of the Sixth Amendment.