You know you are in trouble the moment the judge refers to “that Supreme Court case on confrontation.” He adds: “Robinson I think it is called.”
The judge is a highly respected senior judge. Although you realize he doesn’t do many criminal cases, you are still somewhat taken aback by his comment. Robinson? Are you kidding me?
Standing there with your mouth open and your eyes wide is not a good response, and it is the prosecutor who steps in to fill the breach. “Ohio v. Roberts is what I think you are referring to, Judge,” she says. “But that case has been overtaken by another Supreme Court case: Crawford v. Washington.”
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Responding to a radio call about a domestic disturbance, the two police officers arrive at the house to find the two sisters standing in their kitchen. Both women are injured and bleeding. The officers each interview one of the women. They also recover a bloody kitchen knife. Based on those interviews, the police decide to arrest one of the women, your client, for simple assault and possession of a prohibited weapon.
The other sister, who has now become the complainant, does not show up for trial. The government tries to introduce her version of events through the police officer who interviewed her. You object on the basis of both hearsay and confrontation grounds. The judge admits the statement on the basis of the “excited utterance” exception to the hearsay rule. You continue to object. While the judge acknowledges that he has at least heard of the Sixth Amendment’s Confrontation Clause, he accepts the government’s argument that the complainant’s statement was not “testimonial” and overrules your objection. Your client is convicted and you appeal. Should you win? Absolutely. The complainant’s statement should never have been admitted.
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Say what you will about Justice Scalia but he writes a pretty colorful and interesting opinion to read.
In Crawford v. Washington, 541 U.S. 36 (2004), the U.S. Supreme Court dealt with a situation in which a wife’s out-of-court statement to police officers was admitted against her husband to convict him of assault. When the wife did not testify because of the state’s marital privilege, the court allowed the government to introduce parts of her statement to police that contradicted her husband’s claim of self-defense. The husband argued on appeal that the introduction of this evidence violated his Sixth Amendment right to be confronted with the witnesses against him.
Overturning the Supreme Court’s decision in Ohio v. Roberts, which permitted introduction of an unavailable witness’ statement provided that statement bore “adequate indicia of reliability,” Crawford held that a “testimonial” statement such as the one the wife gave to police can only be admitted if: (1) the government can prove that the witness was unavailable to testify, and (2) the defendant has had a prior opportunity to cross-examine that witness.
Although Justice Scalia explicitly did not define testimonial statements in Crawford, he did provide some helpful hints: “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 question is whether the declarant would “reasonably expect” the statement to be “used prosecutorially.”
Shortly after Crawford, the Supreme Court followed up with better guidance on what would constitute a testimonial statement. With Justice Scalia again writing on behalf of the majority in in Davis v. Indiana, 547 U.S. 813 (2006), the Court held that statements are “non-testimonial 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.” Statements are “testimonial when the circumstances objectively indicate that there is no ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”
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Clearly then, the statement you are dealing with in the case involving the two sisters should never have been admitted against your client.
First of all, there is a problem with the admission of the statement under the “excited utterance” exception. Prosecutors – and courts – tend to focus most of their attention on the first requirement under this exception; namely, the “presence of a startling event which caused a state of nervous excitement or physical shock.” In this case, the prosecutor went through a painstaking series of questions to establish the necessary foundation: her eyes were wide and she was breathing heavily, she was pacing back and forth, she was speaking in a shrill tone of voice, and so on.
Where they tend to give short shrift is the requirement that there also be “circumstances” which “in their totality suggest spontaneity and sincerity of the statement.” In this case, with no information as to who the initial aggressor may have been, the officers could only have suspected both women upon arriving at the house, and the sister who became the complainant had a vested interest in convincing the police that it was her sister, not she, who was responsible for all the blood in order to avoid arrest. In other words, the natural and spontaneous response of the complainant would have been to shift blame to her sister: She did it! This undermines the argument of reliability.
Even if the complainant’s statement had been properly admitted under “excited utterance” exception, the court still needs to consider the separate argument for excluding the statement under the Confrontation Clause. Just because a statement comes in under a hearsay exception does not mean that the Confrontation Clause does not still apply.
One of the things that distinguish domestic violence cases from other assaults is that the complainants in these types of cases frequently fail to show up for court. Girlfriends tend to get back together with their boyfriends. Brothers and sisters, mothers and fathers, cool off and decide they don’t want to see their loved one behind bars after all.
As a result, prosecutors dealing with a lot of domestic violence cases get pretty good at establishing the foundation for the “excited utterance” or “present impression” hearsay exceptions. They can also grow complacent when it comes to their efforts to secure the complainant’s presence in court. Courts frequently allow them to do this.
Crawford, of course, puts a wrench into all of this for the government. In this case, the government never even bothered to explain to the court why the complainant failed to appear at trial. Unless there was some type of prior proceeding at which the complainant did show up (such as a preliminary hearing in a felony case), the defendant never had a prior opportunity to question the witness under oath. And, for reasons already described above, the complainant had every reason in the world to shift suspicion from herself as the primary aggressor to her sister. What she told the officer on the scene, therefore, would sound a whole lot like, to paraphrase Justice Scalia, what you would expect to hear in court. Moreover, with no suggestion of an ongoing offense when the police first appeared, the officers had clearly shifted from crisis response to investigation at the time they took the complainant’s statement. The statement was thus testimonial and never should have been admitted.