The Crawford Outline...The Crawford Outline Cases interpreting Crawford v. Washington March 8, 2004...

© National District Attorneys Association www.ndaa.org

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The Crawford Outline

Cases interpreting Crawford v. Washington March 8, 2004 – March 31, 2015

Updated by Joel Jacobsen Assistant Attorney General

New Mexico Attorney General's Office Please report errors and omissions to [email protected]

Originated by Allie Phillips in 2004 Director, National Center for Prosecution of Animal Abuse

Deputy Director, National Center for Prosecution of Child Abuse National District Attorneys Association

For Crawford trainings or technical assistance questions, please contact: National Center for Prosecution of Child Abuse

44 Canal Center Plaza, Suite 110 Alexandria, VA 22314

703-549-9222 Fax: 703-836-3195 [email protected]

This document is intended for prosecutors, allied professionals and the judiciary. It is not to be disseminated or posted on public websites without express written permission from NCPCA.

Please contact NCPCA for permission to disseminate at trainings and conferences.


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TABLE OF CONTENTS Crawford News: ............................................................................................................... 10 Crawford Outline News: ................................................................................................. 10 Organizing Principles ...................................................................................................... 10 Note about the Authors ................................................................................................... 11

PART 1: CRAWFORD, DAVIS & HAMMON, BOCKTING, DANFORTH, GILES, MELENDEZ-DIAZ BRYANT, BULLCOMING AND WILLIAMS ......................................................................................... 12

Crawford v. Washington ................................................................................................... 12 Two Ways to Analyze Crawford .................................................................................... 12 Davis v. Washington / Hammon v. Indiana .................................................................... 13 Crawford / Davis / Hammon Factors .............................................................................. 14 ! Sub-Category: Cases Misstating the Facts of Davis ................................................. 14 Whorton v. Bockting ......................................................................................................... 16 Danforth v. Minnesota ..................................................................................................... 17 Giles v. California ............................................................................................................. 17 The Historical Approach ................................................................................................ 20 Melendez-Diaz .................................................................................................................. 21 Post-Melendez-Diaz Cert Decisions ................................................................................ 26 Justice Thomas's Fifth Votes in Melendez-Diaz and Williams ..................................... 27 Michigan v. Bryant ........................................................................................................... 29 Bullcoming v. New Mexico .............................................................................................. 32 Justice Sotomayor's Fifth Vote in Bullcoming .............................................................. 34 Williams v. Illinois ............................................................................................................ 35 Whether Williams Establishes Any Rule at All ............................................................. 37 Ohio v. Clark ..................................................................................................................... 38 Retroactivity ..................................................................................................................... 40 Post-Danforth state retroactivity cases .......................................................................... 42 Preservation of Confrontation Issues ............................................................................ 43 Primary Purpose Test (Davis / Hammon Rule) ............................................................. 45 Whose Perspective? ......................................................................................................... 52 Survival of Ohio v. Roberts .............................................................................................. 63 Crawford Does Not Affect the Defendant's Right to Introduce Evidence ................. 68 Crawford Does Not Require Prosecution to Call Witnesses ....................................... 69 Prosecution's Burden of Proof ....................................................................................... 69 Applicability of Harmless Error Analysis in Indiana .................................................. 70

PART 2: WHAT ARE TESTIMONIAL STATEMENTS? .................................................................... 70 Formulations of Test for Determining What Is "Testimonial" .................................. 71 Judicial Expressions of Despair ..................................................................................... 81 Classic Testimonial Statements ...................................................................................... 83 Is Official Involvement Required? ................................................................................. 88 Is Interrogation Necessary? ............................................................................................ 96 ! Sub-Category: The "Colloquial" Meaning of "Interrogation" .............................. 98 Statements that Predate the Crime ................................................................................ 98 Implied / Inadequately Redacted Statements ............................................................. 100 Affidavits ........................................................................................................................ 102 Civil Complaints ............................................................................................................ 104 In-Court Testimony ....................................................................................................... 104


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Testimony Elicited by Counsel for Co-Defendant ...................................................... 106 Grand Jury Testimony .................................................................................................. 106 Plea Allocutions / Co-Defendant Confessions ............................................................. 107 Pretext Phone Calls ....................................................................................................... 109 Meaning of "Witness Against" and "Bear Testimony" ............................................ 110 Non-Inculpatory Hearsay Statements ......................................................................... 118 Declarant Expressly Doesn't Want to Provide Evidence ........................................... 123 Meaning of "Statement" ............................................................................................... 125 Indicia of Formality ....................................................................................................... 126 Relationship of Crawford and Bruton .......................................................................... 127 Informants' Statements to Police (admitted for the truth) ........................................ 136 Objective reasonable person standard (too many cases to list those merely reciting

the standard) ............................................................................................................. 139 Non-Verbal Statements ................................................................................................. 141 Recordings of Police Radio Traffic, Aerial Surveillance Videos, Etc. ...................... 143 Surreptitious Recordings / Prison Phones ................................................................... 144 Physical Evidence .......................................................................................................... 148 Translators and Translations ....................................................................................... 149

PART 3: CRAWFORD IS GENERALLY NOT APPLICABLE IN THESE SITUATIONS ......................... 149 Declarant Testifies (list) ................................................................................................ 150 ! Sub-Category: Does the Confrontation Clause Impose a Sequencing Rule? ..... 158 Preliminary Hearings .................................................................................................... 163 Grand Jury ..................................................................................................................... 164 Pretrial Release Hearings / Challenges to Conditions of Confinement .................... 165 Pretrial Suppression Hearings ..................................................................................... 165 Other Pretrial Hearings ................................................................................................ 169 Contempt Proceedings .................................................................................................. 171 Hearing to Determine Competency to Stand Trial .................................................... 171 Sexually Violent Predator and Similar Proceedings .................................................. 171 Commitments, Child Dependency Proceedings, and Civil Cases Generally ........... 174 ! Sub-Category: Attorney Discipline Hearings ......................................................... 178 ! Sub-Category: Prison Disciplinary Proceedings .................................................... 179 Juvenile Delinquency Proceedings ............................................................................... 179 Probation Revocation / Supervised Release Hearings ............................................... 182 Parole Revocation Hearings ......................................................................................... 185 Sentencing Hearings ...................................................................................................... 186 ! Sub-Category: Courts Holding Confrontation Clause Applies at Sentencing .... 190 ! Sub-Category: Non-Capital Jury Sentencing Hearings ......................................... 191 ! Sub-Category: Presentence Reports ........................................................................ 192 ! Sub-Category: Death Penalty Cases ........................................................................ 192 ! Sub-Category: Relationship of Crawford to Apprendi / Blakely / Booker /

Cunningham .............................................................................................................. 196 Restitution Proceedings ................................................................................................. 197 Post-Conviction DNA Hearing ..................................................................................... 197 Habeas / § 2255 / Other Postconviction Proceedings ................................................. 197

PART 4: VARIETIES OF NON-HEARSAY ..................................................................................... 198 Non-Hearsay Statements / Statements Not for the Truth of Matter Asserted ......... 198


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! Sub-Category: Offered to Show Effect on Hearer ................................................. 202 ! Sub-Category: Offered to Show Notice to Defendant ............................................ 205 ! Sub-Category: Offered to Show Declarant's or Hearer's Knowledge .................. 205 ! Sub-Category: Offered to Show Motive, State of Mind or Purpose ..................... 206 ! Sub-Category: Questions, Commands, Directives ................................................. 209 !Sub-Category: Offered to Show Relationship ......................................................... 209 !Sub-Category: Insults and Denunciations ............................................................... 210 ! Sub-Category: Offered to Show Defendant's Connection to a Place or Car ....... 211 ! Sub-Category: Offered to Show Discrepancy ......................................................... 211 ! Sub-Category: Courts Prepared to Say Non-Hearsay May Be Testimonial ....... 211 ! Sub-Category: Verbal Acts / Offered to Prove It Was Said .................................. 212 ! Sub-Category: Statements Offered for their Falsity .............................................. 213 Statements or Questions Offered to Show Consciousness of Guilt / Participation in

Conspiracy ................................................................................................................. 216 Background Statements ................................................................................................ 216 Context Statements ........................................................................................................ 243 ! Sub-Category: Too Much Detail to Qualify as Background / Context Statements

.................................................................................................................................... 252 Statements Made by Defendant / Adoptive Admissions / Statement by Agent ....... 259 ! Sub-Category: Language Conduit Theory .............................................................. 267 Stipulations ..................................................................................................................... 268 Testimonial Statements Offered by Defendant / Opening the Door / Rule of

Completeness / Invited Error .................................................................................. 268 ! Sub-Category: Too Much Detail for Opening the Door ........................................ 282 Non-Evidence / Non-Admitted Evidence / Read-Back of Testimony / Inference

Drawn from Observed Facts / Refreshed Recollection ......................................... 282 Proof of Value: Receipts, Blue Book, Etc. ................................................................... 290 Expert Witness Opinions Generally ............................................................................ 291 ! Sub-Category: Gang / Mob Expert Testimony ....................................................... 300 Statements Quoted or Alluded To by Detective or Prosecutor ................................. 305 Photographs and Video ................................................................................................. 314 Marketing Materials ..................................................................................................... 318 Questions by Judge ........................................................................................................ 318 Results of Web Searches ............................................................................................... 318 Technician Who Assists in Preparing an Exhibit ....................................................... 319

PART 5: TRADITIONAL HEARSAY EXCEPTIONS (MOSTLY NOT IMPACTED BY CRAWFORD) ..... 319 Prior Consistent or Inconsistent Statement of Testifying Witness ........................... 319 Use of Testimonial Statements in Rebuttal ................................................................. 324 Statement / Admission by Party Opponent ................................................................. 324 Co-Conspirator Statements In Furtherance of Conspiracy (list) ............................. 326 ! Sub-category: Courts Prepared to Say a Co-Conspirator Statement May Be

Testimonial ................................................................................................................ 330 Co-Conspirator Statements In Furtherance of Cover-Up ......................................... 332 ! Sub-Category: Relationship of Co-Conspirator Statements to Casual Remarks335 Present Sense Impressions ............................................................................................ 336 State of Mind .................................................................................................................. 339 Medical Diagnosis / Treatment ..................................................................................... 342


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! Sub-Category: Witness's Statements During Ongoing Therapy .......................... 360 ! Sub-Category: Mandated Rape Kit ......................................................................... 361 ! Sub-Category: Competence / Sanity Evaluations ................................................... 362 Recorded Recollection ................................................................................................... 362 Business Records ........................................................................................................... 363 ! Sub-Category: Drug Ledgers ................................................................................... 383 ! Sub-Category: Pseudoephedrine Purchase Logs .................................................... 383 ! Sub-Category: Trespass Notices .............................................................................. 385 ! Sub-Category: Telephone Records .......................................................................... 385 ! Sub-Category: Summaries / Compilations of Business Records ........................... 385 Public Records and Court Filings ................................................................................ 386 ! Sub-Category: Judgment Offered as Proof of Underlying Facts .......................... 398 ! Sub-Category: Rap Sheets and Pen Packs .............................................................. 398 ! Sub-Category: Prison Disciplinary Reports ........................................................... 400 Absence of Public Record / Certificate of Non-Existence of Record (CNR) ............ 401 Tax Returns .................................................................................................................... 405 Former Testimony ......................................................................................................... 405 Dying Declarations ........................................................................................................ 405 Statements Against Penal Interests .............................................................................. 412 Learned Treatises .......................................................................................................... 414

PART 6: VARIETIES OF NON-TESTIMONIAL HEARSAY. ............................................................ 414 Statements to Family and Friends ("Casual Remarks") ........................................... 415 Statements to Co-Workers, Neighbors, Acquaintances, Attorneys, Etc. ................. 436 ! Sub-Category: Rap Videos ....................................................................................... 449 Statements to Co-Perpetrators, Fellow Gang Members or Fellow Prisoners .......... 449 Statements to Victims .................................................................................................... 458 Casual Statements to Police Officers ........................................................................... 459 Statements to Informants and Undercover Officers .................................................. 460 ! Sub-Category: Statements Unknowingly Made to Officer .................................... 468 Citizen Assisting Officer ............................................................................................... 469 Citizen Assisting Victim ................................................................................................ 472 Absent Witness's Private Writings .............................................................................. 472 Foundation / Preliminary Questions of Fact / Chain of Custody .............................. 474 Not Testimonial (not otherwise classified) .................................................................. 482 Police Dispatch ............................................................................................................... 488

PART 7: ADEQUACY OF OPPORTUNITY TO EXAMINE DECLARANT ........................................... 488 Opportunity to Cross-Examine .................................................................................... 488 ! Sub-Category: Remote Testimony by Adult Witness ............................................ 498 Prior Opportunity to Cross-Examine At Previous Trial / Sentencing Hearing ...... 501 Prior Opportunity to Cross-Examine at Preliminary Hearing ................................. 507 ! Sub-Category: Alternative Seating Arrangement at Preliminary Hearing ......... 515 Prior Opportunity to Cross-Examine at Hearing ....................................................... 516 Prior Opportunity to Cross-Examine At Deposition ................................................. 520 Prior Opportunity to Cross-Examine in Civil Proceeding ........................................ 525 Prior Opportunity to Cross-Examine Not Otherwise Classified .............................. 525 Declarant Testifies as Defense Witness ........................................................................ 527


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Adult Declarant Testifies: Loss of Memory / Freezes on the Stand / Refuses to Answer ....................................................................................................................... 528

Child Declarant Testifies: Loss of Memory / Freezes on the Stand / Refuses to Answer ....................................................................................................................... 542

PART 8: AVAILABILITY OR UNAVAILABILITY OF WITNESS ....................................................... 555 Availability or Unavailability of Witness .................................................................... 556 ! Relationship of Confrontation Clause Availability and Rule 804 Availability .... 566 What Does It Means to "Appear for Cross-Examination"? ..................................... 567 Sufficiency of Prosecution Efforts to Locate Absent Witness (Due Diligence) ........ 568 Sufficiency of Prosecution's Efforts to Persuade Reclutant Witness to Testify ....... 571 Prosecution's Decision Not to Grant Immunity .......................................................... 572

PART 9: EXCITED UTTERANCES & 911 TAPES (SEE ALSO PART 13) ......................................... 572 911 Calls by Victim ........................................................................................................ 572 !Sub-Category: 911 Caller Relays Statements from Victim ................................... 586 911 Calls by Witness ...................................................................................................... 587 ! Sub-Category: Non-Emergency Requests for Police Assistance ........................... 602 ! Sub-Category: Whether 911 Operators Are Police Agents ................................... 603 On-the-Scene Questioning by Police: Child Declarant .............................................. 603 On-the-Scene Questioning: Adult Declarant: Domestic Violence Cases .................. 607 On-the-Scene Questioning: Adult Declarant: Violent Crimes (non-D.V.) ............... 618 On-the-Scene Questioning by Police: Adult Declarant: Robbery or Burglary

Without Injury .......................................................................................................... 635 On-the-Scene Questioning: Other Crimes .................................................................. 637 On-the-Scene Questioning: Possibly-Suicidal Subject ............................................... 638 Statements to EMTs ...................................................................................................... 638 Excited Utterances Generally / "Calls for Help" ....................................................... 639 Spontaneous Statements Not in Response to Questioning ......................................... 646 When Does Emergency End?: Domestic Violence Cases ........................................... 651 When Does Emergency End?: Non-D.V. Cases .......................................................... 662 Geographical Considerations ....................................................................................... 676 Pre-Davis / Hammon Excited Utterance Cases ........................................................... 678

PART 10: EFFECTIVENESS OF LIMITING INSTRUCTION ............................................................ 696 Limiting Instruction Eliminates Issue ......................................................................... 696 Limiting Instruction Makes Any Error Harmless ..................................................... 701 Limiting Instruction Ineffective ................................................................................... 701 Absence of Limiting Instruction ................................................................................... 702 Limiting Instructions Generally ................................................................................... 703

PART 11(A): WAIVER AND POST-GILES FORFEITURE CASES .................................................. 703 Determining Which Is (Are) the Majority Opinion(s) in Giles ................................. 703 Mental State Required for Forfeiture .......................................................................... 704 ! Sub-Category: Mixed Motives or Purposes ............................................................ 705 General Forfeiture Cases .............................................................................................. 705 Retroactivity of Giles ..................................................................................................... 716 Abusive Relationship ..................................................................................................... 716 Recantation .................................................................................................................... 720 Marriage for Purposes of Establishing Marital Privilege .......................................... 720


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Child Abuse Cases ......................................................................................................... 720 Evidence of Reason for Witness's Silence ................................................................... 721 "Acquiesced in Wrongdoing" / Forfeiture via Conspiracy ....................................... 723 Forfeiture by Collusion with Declarant ....................................................................... 723 Use of Hearsay to Establish Forfeiture ........................................................................ 724 Relationship to Forfeiture Under Evidence Rules ...................................................... 724 Retaliation for Past Testimony ..................................................................................... 725 Type of Evidence Needed Generally ............................................................................ 725 Right to Confront Witness at Pretrial Forfeiture Hearing ........................................ 729 Standard of Proof .......................................................................................................... 730 True Waiver ................................................................................................................... 731 ! Sub-Category: Waiver by Lawyer .......................................................................... 736

PART 11(B): PRE-GILES FORFEITURE CASES ............................................................................ 738 Pre-Giles: Forfeiture Generally / Type of Evidence Needed ..................................... 738 Whether Proof of Subjective Intent to Procure Witness's Absence Is Required .... 748 ! Pre-Giles Sub-Category: Relationship of FRE 804(b)(6) to Forfeiture Principle749 Pre-Giles: Forfeiture Distinguished from Waiver ...................................................... 750 Pre-Giles: Prosecution for Same Act that Made Witness Unavailable ..................... 751 Pre-Giles Procedure for Proving Forfeiture ............................................................... 752 Use of Forfeiture Principle Against the Prosecution .................................................. 753

PART 12: CHILD ABUSE CASES .................................................................................................. 753 Forensic / Police Interviews .......................................................................................... 755 Statements to Caseworker / Protective Services or Family Services Employee ...... 767 Reasonable Child Analysis / Children’s State of Mind .............................................. 769 Whether Forensic Interviewer Is Agent of Law Enforcement .................................. 777 Whether Doctor, Nurse or Teacher Is Agent of Law Enforcement .......................... 780 Welfare Checks of the Home ........................................................................................ 780 Medical and Psychological Examinations / Interviews of Children ......................... 780 ! Sub-Category: Statements Made During Ongoing Therapy ................................. 796 Competence of Child Witness ....................................................................................... 797 Statements to Parents, Other Relatives, Teachers, First Disclosures and Tender

Years Statutes ............................................................................................................ 798 Spontaneous Statements ............................................................................................... 809 Constitutional Validity of Child Abuse Evidence Statutes ........................................ 811 Other Hearsay Statements ............................................................................................ 811 Poor Memory / Child Freezes on the Stand / Limited Cross-Examination ............. 814 Prior Testimony of Child / Unavailable for Trial ....................................................... 814 Child Available in Court but Did Not Testify ............................................................. 815 Testifying Remotely or by Videotape .......................................................................... 816 !Sub-Category: Cross-Examination by Written Interrogatories ............................ 818 ! Sub-Category: Relationship of Crawford and Maryland v. Craig ......................... 819 Alternative Courtroom Lay-Out .................................................................................. 820 Mandated Reporters / Agents of Law Enforcement .................................................. 820 Tips by Non-Mandated Reporters to Child Protective Services ............................... 824

PART 13: DOMESTIC VIOLENCE CASES ..................................................................................... 825 Volunteered Statements to Police ................................................................................. 826


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Statements Made During Welfare Check .................................................................... 826 Excited Utterances / 911 Calls ...................................................................................... 827 Statements to Firefighters and Other Non-Police Officials ....................................... 833 Service of Restraining Orders ...................................................................................... 834 Protective Orders / Applications for Protective Orders ............................................ 834 Mandated Reporting of Domestic Abuse .................................................................... 836

PART 14: ELDER ABUSE AND DISABLED ADULTS ..................................................................... 837 Statements to Police or Protective Services ................................................................. 837 Statements to Medical Professionals ............................................................................ 838 Statements to Family or Others ................................................................................... 840 Victims with Dementia .................................................................................................. 841 Developmentally Disabled Victims .............................................................................. 841 Mandated Reporting of Elder Abuse ........................................................................... 842

PART 15: SCIENTIFIC EVIDENCE ............................................................................................... 843 Breath Analysis Instrument Certification Reports, Reference Solutions, etc. ........ 843 ! Sub-Category: Mechanical Reliability of Breathalyzer ......................................... 857 ! Sub-Category: Certification of Operator ................................................................ 858 Breath Test Results / Refusals ...................................................................................... 858 Blood Draw Reports ...................................................................................................... 861 ! Sub-Category: Phlebotomist / Nurse Who Drew Blood ......................................... 870 ! Sub-Category: Volatiles Used in Chemical Test ..................................................... 872 DNA Reports / Population Statistics ............................................................................ 872 Person Who Gathered Material for DNA Testing ...................................................... 887 DNA / Serology: Testimony by Supervisor, Colleague or Technical Reviewer ....... 888 DNA / Serology: Expert Bases Opinion on Another's Work ..................................... 896 Drug Analysis Results ................................................................................................... 905 ! Sub-Category: Field Tests ........................................................................................ 920 Drug Analysis: Testimony by Supervisor or Colleague ............................................. 920 Drug Analysis: Expert Bases Opinion on Another's Work ....................................... 925 Urinalysis Results .......................................................................................................... 928 Autopsy Reports / Death Certificates / Postmortem Toxicology Reports ................ 931 ! Sub-Category: Autopsy Photographs ...................................................................... 946 ! Sub-Category: Pathologist Bases Opinion on Investigator's Report .................... 947 Autopsy / Postmortem Toxicology: Testimony by Supervisor or Colleague ........... 947 Autopsy / Postmortem Toxicology: Expert Bases Opinion on Another's Work ..... 950 Fingerprint Evidence ..................................................................................................... 954 Forensic Examiner's Report / Ballistics Certificate ................................................... 957 Medical Records ............................................................................................................ 960 Raw Data ........................................................................................................................ 964 Can a Machine (or Dog) Be a Hearsay Declarant for Purposes of Crawford? ........ 964 Child Abuse / Rape: Expert Bases Opinion on Another's Work .............................. 969 Lab Reports and Expert Evidence Generally ............................................................. 970 Psychiatric Evidence ..................................................................................................... 973 Piecing Together Bits of Williams to Construct a Rule .............................................. 973 Waiver / Forfeiture by Failure to Comply with Demand Statute or Rule ............... 975 Constitutional Validity of Demand Statute or Rule ................................................... 978


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PART 16: MISCELLANEOUS: DRUNK DRIVING, DRUGS, VICE, MOTOR VEHICLE OFFENSES, ETC. ............................................................................................................................................. 981

Anonymous and Citizen Tips ....................................................................................... 981 Packaging ....................................................................................................................... 982 Driving Record / Vehicle Registration / License and License Revocation ............... 982 Proof of Service or Mailing ........................................................................................... 988 Radar / Speed Check Card / Laser Unit Testing ........................................................ 990 Air Bag Control System Report ................................................................................... 991 Dashboard Camera ....................................................................................................... 991 Expert Testimony .......................................................................................................... 991 Search Consent Forms .................................................................................................. 993 Destruction or Other Loss of Evidence ....................................................................... 993 Data Used to Generate Map ......................................................................................... 993

PART 17: INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS AND HABEAS CORPUS CLAIMS BASED ON CRAWFORD. ................................................................................................................ 994

Clearly Established Federal Law ................................................................................. 994 Reverse Retroactivity .................................................................................................... 999 Unreasonable Application of Federal Law ................................................................ 1000 State Habeas ................................................................................................................. 1004 Ineffective Assistance of Counsel ............................................................................... 1004


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Crawford News: On June 18, 2015, the Supreme Court decided Ohio v. Clark, 576 U.S. __, 135 S.Ct. 2173 (2015), holding that a small child's statements to his Head Start teachers were not testimonial. Most important holding: "Statements by very young children will rarely, if ever, implicate the Confrontation Clause." For the first time, the Court applied the "primary purpose" test to conversations between private parties. But it also redefined the test, separating it from the emergency doctrine announced in Davis. Now, the question is whether "the 'primary purpose' of the conversation was to 'creat[e] an out-of-court substitute for trial testimony.'" The Court also held that "the primary purpose test is a necessary, but not always sufficient, condition for the exclusion of out-of-court statements under the Confrontation Clause." Another formulation: the conversation between preschooler and teacher is not "a law enforcement mission aimed primarily at gathering evidence for a prosecution." That implies that a testimonial statement is one spoken in the course of such a mission. The Court declined to hold that conversations between people unaffiliated with law enforcement were per se non-testimonial, but said they "are significantly less likely to be testimonial than statements given to law enforcement officers." The preceding two paragraphs, read together, support an argument that a conversation between private persons can produce testimonial hearsay only when one of the persons is acting as an agent for law enforcement. The Court referred to actual trial court transcripts when considering what the Founders would have considered normal and acceptable practice at the time of the Founding. Crawford, by contrast, considered only appellate opinions and secondary sources, disregarding the evidence most relevant to its sweeping historical conclusions.

Crawford Outline News: Crawford was decided in March, 2004. Allie Phillips originated this Outline shortly afterward. Joel Jacobsen began updating of the Outline in 2007. Starting with the next update, the task of updating the Outline will be taken over by New Mexico Assistant Attorney General Ken Stalter.

Organizing Principles The purpose of the Outline is to assist prosecutors and judges conducting their own research. New cases and categories are highlighted in red. Not all post-Crawford cases are listed in this outline. Prior to July, 2009, the attempt was made to include all cases, published or unpublished, that provided major, interesting or potentially


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useful interpretations. That became overwhelming. Beginning in July 2009, unpublished decisions are included only when unusually significant. Cases decided solely on the basis of harmless error, lack of preservation or non-retroactivity are not included in the Outline. When a new category is added to the Outline, time constraints generally preclude any effort to re-categorize older cases. Usually, only cases appearing from that date forward are included in the new category. When an entry could fit within multiple categories, it is generally included in only one, to avoid repetition. The preference is for the most specific category. But researchers should keep in mind that there is considerable overlap between categories. Moreover, the opinions themselves sometimes misclassify the issue. When a case included in earlier editions of the Outline is overruled or otherwise superseded on the Crawford issue, the summary of that case is deleted but its updated citation remains. If the case is overruled for a non-Crawford-related reason, the summary remains and the citation is updated. Whenever practicable, cases are quoted rather than paraphrased to avoid intruding between the author and reader. Citations and quotations are not checked. Citations within quotations are sometimes omitted without signal. Researchers should absolutely perform their own cite-checking. Only English-language cases are included, which excludes some from Puerto Rico.

Note about the Authors

Allie Phillips originated this outline. Allie is now director of the National Center for Prosecution of Animal Abuse at the National District Attorneys Association.

Joel Jacobsen, New Mexico Assistant Attorney General, updates the outline. Many thanks to New Mexico Attorney General Hector H. Balderas and to Anne Kelly, director of the NMAGO's Criminal Appeals Division, for lending Joel to the project.


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PART 1: Crawford, Davis & Hammon, Bockting, Danforth, Giles, Melendez-Diaz Bryant, Bullcoming and Williams

Crawford v. Washington

Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)

" U.S. Supreme Court decision on March 8, 2004 " 7-2 decision, majority opinion authored by Justice Scalia " Appeals to the Washington Court of Appeals and Washington Supreme Court addressed the

reliability and trustworthiness of admitting Mrs. Crawford’s taped statements to police (pursuant to Evidence rule 804(b)(3))

" U.S. Supreme Court only addressed Confrontation Clause issue rather than reliability issues " Crawford supplanted without explicitly overruling Ohio v Roberts, 448 U.S. 56 (1980) – as

to testimonial statements; and undermined Idaho v Wright, 497 U.S. 805 (1990), and Illinois v White, 502 U.S. 346 (1992)

" The Crawford Rule: “Testimonial” statements no longer admissible unless witness takes the stand and is subject to cross-examination, with some exceptions

o Testimonial not defined " Retroactive for pending cases on direct appeal

Two Ways to Analyze Crawford Is the statement testimonial? Does my witness appear for cross-

examination? If no, then no Crawford analysis is conducted

If yes, then no Crawford analysis is conducted

If yes, then these must occur: If no, then is the statement testimonial?

Declarant must testify (then all admissible hearsay from the declararant may be introduced), or

If not testimonial, then no Crawford analysis is conducted (Rules of Evidence applied as usual; in some jurisdiction, Ohio v. Roberts reliability test still used, too)

Declarant be unavailable AND have been subject to cross-examination at a prior time

If testimonial, then these must be shown:

... UNLESS defendant forfeited or waived right of confrontation, opens the door, etc.

Witness is legally unavailable (NOT the 804(a) standard) AND was subject to cross-examination previously

Note: Reliability or trustworthiness of the prior statement is not an issue under Crawford

... UNLESS defendant forfeited or waived right of confrontation, opens the door, etc.


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Note: Reliability or trustworthiness of the prior statement is not an issue under Crawford

Davis v. Washington / Hammon v. Indiana Davis v. Washington and Hammon v. Indiana, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (June 19, 2006)

# [NOTE: The meaning of Davis / Hammon is arguably altered by Giles v. California. See below.]

# 8-1 decision, Justice Scalia again writing the majority opinion (Thomas dissenting in part)

# Issues on appeal addressed excited utterances and 911 calls from victims of domestic disturbances

# In Davis, the victim was speaking about events as they were actually happening, rather than "describing past events. She was alone and not protected by police.

o Note that the Court didn't say "crimes as they were actually being committed." "Events" is a broader term than "crimes," and (as you'd expect) the victim in Davis called 911 only after her abuser left. [This detail isn't made clear in the Supreme Court opinion, but it is clearly stated in the Washington Supreme Court opinion, 111 P.3d 844, ¶ 3.]

o The statements were non-testimonial. The Court ruled: “Statements are nontestimonial 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.”

o Statements requesting help, where the emergency still exists, where the declarant is excited/frantic and/or still in danger will be non-testimonial under the Davis rule.

# In Hammon, there was no emergency in progress. The sole purpose of the “interrogation” by law enforcement was to investigate a past crime. The victim was separated from defendant and protected by police.

o Hammon did not involve a 911 call but on-the-scene questioning after the victim said things were "fine", plus her handwritten affidavit.

o The statements by the victim in Hammon were testimonial and the Court ruled = "They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."

o Statements made, even at the crime scene, where the emergency has stopped and that describe a past crime, and that involve interrogation by the police resulting in accusatory statements made by a calm declarant (or declarant not reaching the standard of an excited utterance) will be testimonial under Hammon.

# The Court did not provide a comprehensive definition of “testimonial statements” for all prosecution cases and limited the rulings in these combined cases to situations involving interrogations by law enforcement (see footnote 2 in the opinion)

o The rule in Davis and Hammon should only be applied to law enforcement interrogation cases as directed by the court (footnote 2) and should only be applied to cases similar to Davis/Hammon (footnote 5).


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o Other cases that are not similar to the facts in Hammon or Davis should go back to the rule announced in Crawford.

o Do not fall into the trap of conducting a "primary purpose" analysis of a conversation between private parties!

! Davis said: "We overruled Roberts in Crawford" (footnote 4), although it had not done so explicitly in Crawford itself.

! One way to look at Davis is that it recognized an emergency exception to Crawford. ο Crawford had said that "Statements taken by police officers in the course of

interrogations are also testimonial under even a narrow standard." 541 U.S. at 52. And: "even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class." Id. at 53.

ο Davis backed off from those categorical statements, holding that some interrogations by law enforcement officers aren't testimonial, after all.

Crawford / Davis / Hammon Factors

The basic Davis / Hammon analysis should follow this sequence, although the decisions are still all over the place. FIRST FACTOR: 1. Was a government agent (or a person working as an agent of the government) involved in creating the testimony or taking a formalized statement? A. If no, analysis is completed and the statement should be non-testimonial.

i. The only exception is when the declarant asks or expects the hearer to forward the information to authorities.

B. If yes, then go to the second factor. SECOND FACTOR: 2. In looking objectively at the circumstances of when the statement was made:

A. Was there an interrogation of the witness by law enforcement? 1. If no, go to B. 2. If yes, what was the primary purpose of the interrogation by law enforcement?

a. If done to resolve an ongoing emergency, the statements are non-testimonial and the analysis is complete. b. If done to obtain facts of a past crime, then go to B.

B. Perform ordinary Crawford analysis.

! Sub-Category: Cases Misstating the Facts of Davis (category added June, 2008)

With surprising frequency, lower court opinions misstate the facts of Davis. As noted above, the Washington opinion was clear that the entire 911 call occurred after the abuser had left the


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premises, which (if one thinks about it) is obvious: batterers don't let their victims call 911 in the middle of the beating, and few people getting beaten up would care to provide a blow-by-blow account, anyway. Yet some judges apparently don't think about it, or can't be bothered to spend the 30 seconds it takes to access the Washington opinion on Westlaw or LEXIS. (Of course, the source of the problem is the sloppy draftsmanship of Davis itself.) Commonwealth v. Williams, 2014 PA Super 249, 103 A.3d 354 (2014) – "We are cognizant that in Davis, the victim called while the assault was ongoing." – not true State v. Clue, 139 Conn. App. 189, 55 A.3d 311 (Conn. App. Ct. 2012), appeal denied (2013) – "Davis involved a domestic disturbance during which the victim called police while a known assailant beat her with his fists and then fled the scene." – not true, he fled before she called People v. Bryant, __ N.W.2d __, 2009 WL 1677569 (Mich. Jun 10, 2009) – "the Court [in Davis] said that once the criminal event was over, i.e., the defendant had stopped assaulting the victim and left the premises, the 'ongoing emergency' was over at least for purposes of evaluating an alleged Crawford violation." – no, it held that the emergency was ongoing after the defendant left the premises People v. Sutton, __ N.E.2d __, 2009 WL 1012020 (Ill. Apr 16, 2009) – "In Davis, the victim of a domestic assault made a 911 call while in the midst of a domestic disturbance with her former boyfriend, describing the attack while it was occurring and answering other questions." – ludicrous Clark v. State, 199 P.3d 1203 (Alaska App. Jan 16, 2009) – "One could argue that Clark's case is different from the facts of Davis, in that the assault committed on Amouak was concluded by the time she came to the emergency room, while the victim in Davis was reporting ongoing criminal activity." – nuh-uh Thomas v. State, 284 Ga. 540, 668 S.E.2d 711 (Ga. Oct 27, 2008) – "The facts in Davis are closely analogous to the case now before this Court. There, the victim of domestic violence reported to a 911 operator that her former boyfriend was at her home and was beating her." - nope State v. Graves, 224 Or.App. 157, 197 P.3d 74 (Or. App. Nov 26, 2008) (Edmonds, P.J., concurring) – "the appropriate focus under Davis is on whether [Officer] Debler's testimony about D's statements related to events as they actually were occurring in D's presence, or whether D was describing to Debler what had occurred in the past." State v. Shea, 965 A.2d 504, 2008 VT 114 (Vt. Aug 14, 2008) – "Courts have pointed to two independent ways in which an emergency may be ongoing. The first, present in Davis, arises when a crime is still in progress." – it may be true that courts have pointed to that, but it's not true that those were the facts of Davis State ex rel. J.A., 195 N.J. 324, 949 A.2d 790 (N.J. Jun 23, 2008) – "Indeed, in Davis, after the abusive husband fled his home, ending the immediate emergency, the Court declared that '[i]t could readily be maintained' that the wife's continuing remarks to the 911 operator were


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testimonial statements." – not true – all of her remarks to the operator were made after the husband fled her home State v. Buda, 195 N.J. 278, 949 A.2d 761 (N.J. Jun 23, 2008) (dissent) – in a 4-3 opinion, the dissent (by Justice Albin, author of J.A., above) says that the victim's statements to the 911 operator in Davis "were nontestimonial because her husband was in the process of beating her" – not true Sanon v. State, 978 So.2d 275 (Fla. App. 4 Dist. Apr 16, 2008) – "here there was no ongoing emergency, as in Davis, where the victim was speaking to a 911 operator while she was being attacked." – not true

Whorton v. Bockting Whorton v. Bockting, 549 U.S. 406, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007)

! U.S. Supreme Court decision on February 28, 2007 ! Unanimous decision authored by Justice Alito, reversing a Ninth Circuit decision. ! The specific holding is set forth in its first two sentences: "This case presents the question

whether, under the rules set out in Teague v. Lane, 489 U.S. 288 (1989), our decision in Crawford v. Washington, 541 U.S. 36 (2004), is retroactive to cases already final on direct review. We hold that it is not."

! In addition to its retroactivity holding, Bockting makes several interesting points. ο "[T]his Court overruled Roberts in Crawford". Id. at 1175. This was not actually

stated in Crawford. Some lower courts still don't believe it. ο The Crawford rule was a "new rule," meaning it was not dictated by governing

precedent. Id. at 1181. ο "[I]t is clear and undisputed that the [Crawford] rule is procedural and not

substantive[.]" Id. at 1181. ο "[T]he overall effect of Crawford with regard to the accuracy of fact-finding in

criminal cases is not easy to assess. [¶] With respect to testimonial out-of-court statements, Crawford is more restrictive than was Roberts, and this may improve the accuracy of fact-finding in some criminal cases. ... But whatever improvement in reliability Crawford produced in this respect must be considered together with Crawford's elimination of Confrontation Clause protection against the admission of unreliable out-of-court nontestimonial statements. Under Roberts, an out-of-court nontestimonial statement not subject to prior cross-examination could not be admitted without a judicial determination regarding reliability. Under Crawford, on the other hand, the Confrontation Clause has no application to such statements and therefore permits their admission even if they lack indicia of reliability. [¶] It is thus unclear whether Crawford, on the whole, decreased or increased the number of unreliable out-of-court statements that may be admitted in criminal trials." Id. at 1183.

ο The emphasized words, if they mean what they say, mean that Bruton has no application to non-testimonial statements.


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ο "The Crawford rule also did not 'alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.'" Id. at 1183 (italics in original; citation omitted)

Danforth v. Minnesota Danforth v. Minnesota, 128 S.Ct. 1029, 76 USLW 4069 (Feb. 20, 2008) -

# 7-2 decision authored by Justice Stevens. # "Our recent decision in Whorton v. Bockting ... makes clear that the Minnesota court

correctly concluded that federal law does not require state courts to apply the holding in Crawford to cases that were final when that case was decided. Nevertheless, we granted certiorari, ... to consider whether Teague or any other federal rule of law prohibits them from doing so."

# The answer is "no." # Of course, if it wanted to reach that result, the Minnesota Supreme Court could have

reached it under its state constitution. It didn't need permission from SCOTUS. # Danforth is really a retroactivity case, not a Crawford case. # Nonetheless Justices Stevens' opinion makes a couple points of some significance to

Crawford. First, he points out that the 6th amendment is applicable to the states only through the 14th amendment, which in turn suggests that the Framers whose original intent needs to be examined were the Radical Republicans of 1868 and not the knee-britches-wearing men in powdered wigs.

# Second: "Finally, the dissent contends that the 'end result [of this opinion] is startling' because 'two criminal defendants, each of whom committed the same crime, at the same time, whose convictions became final on the same day, and each of whom raised an identical claim at the same time under the Federal Constitution' could obtain different results. ... [S]uch nonuniformity is a necessary consequence of a federalist system of government."

o This last raises the somewhat disquieting possibility that a majority of the Court views the wild inconsistency of Crawford precedent as a product of federalism, even though Crawford supersedes state law, which would seem to make it the exact opposite of federalism.

Giles v. California Giles v. California, 554 U.S. __, 128 S.Ct. 2678, 171 L.Ed.2d 488 (June 25, 2008)

" A 5-opinion decision. Basic rule seems to be: A defendant who kills or intimidates a witness does not forfeit his right to confront that witness unless he killed or intimidated the witness with the intent or purpose to prevent the witness from testifying. o But, as shown below, there is no clear statement of the holding. o The intent does not appear to be ordinary specific intent. As shown below, it can

be shown inferentially by a pattern of behavior over the entire course of a relationship.

o Thus in domestic abuse cases, at least, it is unnecessary for the prosecution to prove the victimizer specifically thought about preventing the testimony.


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" Also as shown below, there are arguably two different majority opinions, each backed by a different majority of the justices (shades of Booker!).

" Justice Scalia wrote the opinion for the Court, most of which was joined by five other justices (Roberts, Souter, Thomas, Ginsburg, Alito). Justices Souter and Ginsburg part ways with respect to one passage, part II-D-2, demoting that part of Justice Scalia's opinion to a plurality.

" Justice Breyer wrote a dissent joined by Justices Stevens and Kennedy. " Justice Souter wrote an opinion concurring in part, joined by Justice Ginsburg. Justice

Breyer (writing for himself and Justices Stevens and Kennedy) says of the Souter concurrence: "I agree with this formulation" – which means five justices agree. o Thus it is at least arguable that Justice Souter's opinion is the majority

opinion with respect to the precise topic under discussion, namely the application of the forfeiture doctrine in domestic violence / murder cases.

o (This point is elaborated below.) " Giles beat and threatened to kill his ex-girlfriend, Brenda Avie. She reported the

beating and threat to police in the immediate aftermath of the attack. Three weeks later, he carried through on his threat. The question was whether the jury should have been permitted to hear what she told police.

" The California Supreme Court held that Giles forfeited his right to confront Ms. Avie by killing her, regardless of his reason for killing her.

" Justice Scalia's majority opinion reverses. But while Justice Scalia's opinion is very long, it contains no clear statement of the rule being adopted. For example, it does not contain any statement prefaced with "We hold."

" As with Crawford, the opinion contains various highly-suggestive and yet indefinite statements, such as the following: o "A second common-law doctrine, which we will refer to as forfeiture by

wrongdoing, permitted the introduction of statements of a witness who was 'detained' or 'kept away' by the 'means or procurement' of the defendant."

o The terms used to define the scope of the forfeiture rule suggest that the exception applied only when the defendant engaged in conduct designed to prevent the witness from testifying. The rule required the witness to have been 'kept back' or 'detained' by 'means or procurement' of the defendant." (Italics in original.)

o "Cases and treatises of the time indicate that a purpose-based definition of these terms governed."

o "The manner in which the rule was applied makes plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying." (Italics in original.)

o "In 1997, this Court approved a Federal Rule of Evidence, entitled 'Forfeiture by wrongdoing,' which applies only when the defendant 'engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.' Fed. Rule of Evid. 804(b)(6). We have described this as a rule 'which codifies the forfeiture doctrine.' Davis … Every commentator we are aware of has concluded the requirement of intent 'means that the exception applies only if the defendant has in mind the particular purpose of making the witness unavailable.'"

o "In sum, our interpretation of the common-law forfeiture rule is supported by (1) the most natural reading of the language used at common law; (2) the absence of common-law cases admitting prior statements on a forfeiture theory when the


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defendant had not engaged in conduct designed to prevent a witness from testifying; (3) the common law’s uniform exclusion of unconfronted inculpatory testimony by murder victims (except testimony given with awareness of impending death) in the innumerable cases in which the defendant was on trial for killing the victim, but was not shown to have done so for the purpose of preventing testimony; (4) a subsequent history in which the dissent’s broad forfeiture theory has not been applied. The first two and the last are highly persuasive; the third is in our view conclusive." (Italics in original.)

" Justice Breyer's dissent points out that Justice Scalia's majority/plurality opinion fails to define the precise intent required. o Justice Scalia does not clarify the point of uncertainty identified by Justice

Breyer, other than with the conclusory: "This is not, as the dissent charges, post, at 25, nothing more than 'knowledge-based intent.'"

o Justice Scalia's opinion uses the phrase "specific intent" only once, in rebuttal to the dissent: "If the forfeiture doctrine did not admit unconfronted prior testimony at common law, the conclusion must be, not that the forfeiture doctrine requires no specific intent in order to render unconfronted testimony available, but that unconfronted testimony is subject to no forfeiture doctrine at all."

" In his separate opinion, Justices Thomas would hold that the statements at issue were not testimonial to begin with, adhering to his bright-line rule from Davis. Justice Alito strongly suggests the statements at issue were not testimonial under the Davis rule. But because California did not seek certiorari review of the state courts' determination that the statements were testimonial, these two justices go along with the majority.

" Justice Scalia's opinion says in its closing section that a history of domestic abuse "would be highly relevant" to the inquiry into the defendant's purpose in making the victim-witness unavailable.

" Justice Souter, joined by Justice Ginsburg, goes further, saying: "[The requisite] element of intention would normally be satisfied by the intent inferred on the part of the domestic abuser in the classic abusive relationship, which is meant to isolate the victim from outside help, including the aid of law enforcement and the judicial process. If the evidence for admissibility shows a continuing relationship of this sort, it would make no sense to suggest that the oppressing defendant miraculously abandoned the dynamics of abuse the instant before he killed his victim, say in a fit of anger. The Court’s conclusion in Part II–E thus fits the rationale that equity requires and the historical record supports." [NOTE: The precise alteration at the beginning of this quotation is taken from Justice Breyer's dissent, which quotes this passage.] o Justice Breyer writes of this passage: "This seems to say that a showing of

domestic abuse is sufficient to call into play the protection of the forfeiture rule in a trial for murder of the domestic abuse victim. Doing so when, in fact, the abuser may have had other matters in mind apart from preventing the witness from testifying, is in effect not to insist upon a showing of 'purpose.' Consequently, I agree with this formulation, though I would apply a simple intent requirement across the board."

o This seems to mean that five justices vote for the proposition "that a showing of domestic abuse is sufficient to call into play the protection of the forfeiture rule in a trial for murder of the domestic abuse victim."

" Professor Richard Friedman, whose work was both cited and paraphrased without attribution in Crawford, predicted in a 1997 law review article that importing an intent


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requirement into the forfeiture principle will result in courts narrowing the definition of "testimonial" in order to avoid unjust results. Richard D. Friedman, "Confrontation and the Definition of Chutzpa," 31 Isr. L. R. 506 (1997). The separate opinions of Souter and Alito, in particular, suggest that the predicted dynamic has already started.

The Historical Approach

" The Giles majority opinion reconfirms that a majority of the Court is wedded to the historical approach of Crawford.

" Justice Breyer's dissent in Giles also embraces historicity as the proper mode of confrontation clause analysis.

" In Giles, Justices Souter and Ginsburg more or less explicitly reject the historical approach, relying instead on policy considerations.

" But the majority's approach in Crawford and Giles is, upon examination, only pseudo-historical. It is ahistorical in (among others) the following particulars: o It fakes evidence, for example by attributing a preoccupation with Sir Walter

Raleigh to the Framers. " Raleigh was an Elizabethan courtier who lived into the reign of James I.

The accession of a new royal house is always uncomfortable for those who rely on royal favor. Making it worse, Raleigh unintentionally offended the new king at their first meeting. The problem with his trial wasn't that he was denied the right to cross-examine his accusers, but that it was a political show trial.

o Giles reaches conclusions based on the absence of evidence, a classic historians' fallacy.

o The pseudo-historical approach anachronistically projects the modern lawyers' concept of hearsay backwards onto the drafters of the sixth amendment, even though most trials of the period proceeded without lawyers at all, and most "lawyers" of the era received a legal education only slightly more formal than that of today's jailhouse lawyers.

o It considers only an extraordinarily narrow range of sources, namely appellate opinions and treatises, representing (respectively) a tiny fraction of actual trials and the personal opinions of a few self-publishing egotists.

o Trial transcripts and accounts of trials are not consulted, even though the trial court is obviously where these issues would have been addressed most frequently, and in the federal system exclusively (because there was no federal right of appeal in criminal cases before the Gilded Age). Such transcripts and accounts are readily available.

o It never defines who the "Framers" were (a critical point returned to below), although it imputes very specific legal doctrines to them.

o It assume that the Framers thought alike, as if they were an alien combine reminiscent of Star Trek's Borg.

o It ignores the obvious point, mentioned by Justice Souter, that domestic abuse was only rarely prosecuted at common law. The absence of reported cases finding forfeiture on facts analogous to Giles therefore doesn't reflect the Framers' attitude toward forfeiture so much as their attitude toward prosecuting domestic abuse.


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" In addition, the pseudo-historical approach is inconsistent with the political, as opposed to strictly legal, vision of the Framers, as Justice Scalia himself recognizes when writing about different topics. o In Danforth, he joined Justice Stevens' opinion, which observed: "The ratification

of the Fourteenth Amendment radically changed the federal courts’ relationship with state courts. That Amendment, one of the post-Civil War Reconstruction Amendments ratified in 1868, is the source of this Court’s power to decide whether a defendant in a state proceeding received a fair trial—i.e., whether his deprivation of liberty was 'without due process of law.'"

o This means that, in any inquiry into original intent concerning the application of the Bill of Rights to the states, the Framers whose intent counts are the Radical Republicans of 1868. But Giles refers repeatedly to the time of the founding. This is highly anachronistic. The one thing that is absolutely clear from the debates over the ratification of the Bill of Rights was that it was viewed strictly as a limitation on federal power. That was, in fact, the whole point.

o In Boumediene v. Bush, 128 S.Ct. 2229 (June 12, 2008), Justice Scalia wrote in his dissenting opinion: "The proper course of constitutional interpretation is to give the text the meaning it was understood to have at the time of its adoption by the people. See, e.g., Crawford v. Washington, 541 U. S. 36, 54 (2004)." While the use of the passive voice allows the justice to avoid identifying whose understanding counts, his reference to "the people" hints strongly at a democratic theory of original intent, one based on the idea that governments "derive[e] their just powers from the consent of the governed" and that political power originates in the people's will – which, of course, is the political theory behind ratification in the first place, as Marbury v. Madison and Hamilton's Federalist 78 (on which Marbury was based) both emphasize. Under the theory of democratic constitutionalism, the "Framers" were the people themselves, or at least those among them with the right to vote. But in both Crawford and Giles, Justice Scalia refers only to elite opinion, and then only to the views of the lawyers among the elite.

o The Giles opinion makes no attempt to reconcile Justice Scalia's various inconsistent historical pronouncements from the first half of 2008 alone.

Melendez-Diaz Melendez-Diaz v. Massachusetts, 557 U.S. __, __ S.Ct. __, __ L.Ed.2d __ (June 25, 2009)

• 5-4 decision. Justice Scalia wrote the majority opinion, with Justice Thomas concurring fully, but on narrow grounds. Justice Kennedy wrote the sole dissent.

o In 2004, Justices Kennedy and Breyer joined Crawford, but they dissented from Melendez-Diaz. Chief Justice Roberts and Justice Alito joined the dissent, just as their specific predecessors, Chief Justice Rehnquist and Justice O'Connor, had disagreed with Crawford itself.

o Now that Justice Souter has retired, the lineup of remaining justices is 4-4. • Melendez-Diaz states that the defendant's ability to subpoena the analyst is no substitute

for the prosecution calling him or her in its case in chief: "the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court." (Note the departure from the purported textual


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analysis of Crawford and Davis. The written confrontation clause says nothing about burdens.)

o Although that dicta from Melendez-Diaz addresses the precise issue, on June 29, the Court granted certiorari in Briscoe v. Virginia, raising the question whether a defendant's ability to subpoena the analyst prevents any confrontation clause violation.

o The oddity of the Court granting certiorari to hear an issue specifically addressed (albeit in dicta) in an opinion they issued just four days earlier suggests the possibility that the four justices in the minority might be seeking to revisit the issue in the fall, when the Court is back to full strength. (Four votes are necessary to grant certiorari.)

o If so, the continued viability of Melendez-Diaz might depend wholly on a single person: Justice Sotomayor (or whoever is confirmed to replace Justice Souter).

• In Melendez-Diaz, the Massachusetts courts permitted the prosecution to prove the chemical identity of cocaine through a certificate prepared by a non-testifying laboratory analyst.

o Massachusett's Supreme Judicial Court reached that conclusion based on a Crawford-style analysis from 1923 that included a through examination of precedents from the founding era. Commonwealth v. Slavski, 245 Mass. 405, 140 N.E. 465 (1923). When the Supreme Judicial Court revisited the issue in the wake of Crawford, it concluded that its 1923 proto-Crawford analysis was exactly what Crawford demanded. Commonwealth v. Verde, 444 Mass. 279, 827 N.E.2d 701 (Mass. 2005).

• Scalia's opinion acknowledges the Supreme Judicial Court's 1923 analysis only in passing, observing that some other state courts reached different conclusions.

• The pseudo-historical approach, apparently, is not something that lower courts can engage in on their own.

o The basic holding of Melendez-Diaz is that the certificates are affidavits, and as Crawford said, affidavits are testimonial. Justice Scalia's opinion, which contains only a few paragraphs of analysis, doesn't go further into the issue than that.

o The rest of Scalia's opinion is devoted to responding to the dissent, and these defensive passages contain sweeping dicta that will likely prove troublesome for prosecutors in cases far afield from drug prosecutions. Some of the areas of likely trouble are described below.

• Justice Thomas concurred (in full) based on his position, stated in his Davis partial dissent, that only affidavits, transcripts and similarly formal types of testimony are testimonial.

o Because Justice Thomas's concurrence was necessary to form the majority, prosecutors should argue that it would be wrong to extend the holding beyond his narrow position. Marks v. United States, 430 U.S. 188, 193 (1977), is arguably not directly applicable (because Thomas concurred in full, and not merely in the judgment) it is closely analogous. There were five votes for Justice Thomas's formalistic-but-workable position, and only four votes for anything beyond that.

Positive Dicta in Melendez-Diaz:


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• Scalia's sweeping dicta include the following that will likely prove useful to the prosecution:

o "we do not hold, at it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case." Rather, "[i]t is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live." (fn 1)

" What does this mean in concrete terms? o "Additionally, documents prepared in the regular course of equipment

maintenance may well qualify as nontestimonial records." (fn 1) • Notice and demand statutes are A-OK: "The defendant always has the burden of raising

his Confrontation Clause objection; notice-and-demand statutes simply govern the time within which he must do so. States are free to adopt procedural rules governing objections." (pdf slip op at 21)

Negative Dicta in Melendez-Diaz:

• Scalia's sweeping dicta also include the following that will likely prove troubling to the prosecution:

o "The text of the Amendment contemplates two classes of witnesses—those against the defendant and those in his favor. ... [T]here is not a third category of witnesses, helpful to the prosecution, but somehow immune from confrontation." (pdf slip op at 7-8)

" The justice makes no attempt to prove the underlying (absurd) assumption that the amendment was intended to provide a comprehensive classification of witnesses.

" This dicta calls into question cases, collected in part 2 of this Outline, holding that only "witnesses against" the accused, and only inculpatory statements, are subject to the confrontation clause.

o Gray v. Maryland "did indeed distinguish between evidence that is 'incriminating on its face' and evidence that 'bec[omes] incriminating ... only when linked with evidence introduced later at trial'" – but that does not mean the latter is exempt from the confrontation clause, but only that it is exempted when a limiting instruction is given. (fn 3)

" So if a limiting instruction is given, doesn't that create a third category of witnesses, those that are neither called by the defense nor subject to cross-examination?

" Scalia's opinion gives no hint of recognizing the self-contradiction. " Similarly, the opinion later states that the hearsay evidence in Dowdell v.

U.S. was non-testimonial because the declarants "were not witnesses for purposes of the Confrontation Clause because their statements concerned only the conduct of defendant's prior trial, not any facts regarding defendants' guilt or innocence." (fn 8)

" Again, "a third category of witnesses", or rather fourth – and again Scalia doesn't seem to recognize his self-contradiction.

o Scalia's opinion states: "Respondents and the dissent may be right that there are other ways—and in some cases better ways [than cross-examination]—to


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challenge or verify the results of a forensic test. [fn 5] Though surely not always. Some forensic analyses, such as autopsies and breathalyzer tests, cannot be repeated, and the specimens used for other analyses have often been lost or degraded."

" This would seem to imply, vaguely, that cross-examination is particularly necessary in cases involving autopsies and breathalyzer tests.

" The dissent believes the holding applies to autopsy reports, and Scalia doesn't deny it.

o In part III(C), Scalia first accuses the dissent of wanting to return to Ohio v. Roberts, and then launches on a lengthy discussion of the unreliability of forensic testing – the Ohio v. Roberts concern.

" So is reliability back? At the end of a lengthy discussion, Scalia drops a footnote (fn 6) that says it isn't, which, if true, makes the whole discussion spectacularly pointless.

" Scalia says: "Confrontation is one means of assuring accurate forensic analysis. ... Confrontation is designed [!] to weed out not only the fraudulent analyst, but the incompetent one as well." (pdf slip op. at 13) But he does not provide any example of faked or incompetent analysis being exposed by cross-examination.

• Bad science is exposed by quality control, review, laboratory audit, or confessions, not by humanities majors asking questions in routine drug cases.

o Scalia says the laboratory reports do not qualify as business records because they are made for courtroom use and not for the business, comparing them to a railroad's accident investigation. (pdf slip op. at 15-16)

" "The analysts' certificates—like police reports generated by law enforcement officials—do not qualify as business or public records for precisely the same reason. See Rule 803(8) (defining public records as 'excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel')." (pdf slip op. at 16)

• So is the 803(8) (public records) exclusion now imported into 803(6) (business records)?

• And are lab workers "law enforcement personnel"? • Both conclusions seem implied, although neither is stated, perhaps

because neither is, upon honest examination, defensible. " The opinion says: "Business and public records are generally admissible

absent confrontation ... because—having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial."

• The opinion thus establishes a dichotomy, which like other dichotomies established recently by Justice Scalia (e.g., responding to an emergency vs. gathering evidence), involves categories that are not mutually exclusive.

• Laboratory reports, obviously, are necessary for quality assurance, that is, the administration of the lab's affairs. But they are also, Melendez-Diaz holds, created for the purpose of establishing or proving some fact at trial.


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• The same is equally true of many, many business and public records. Just think, for instance, of the "paper trail" in an employee's personnel file.

• Yet the dichotomy established by Melendez-Diaz says that's not possible.

o Scalia purports to discern the framers' intent through the absence of evidence, specifically the absence of evidence regarding the admission of documents analogous to reports of forensic analyses of controlled substances. (pdf slip op. at 16)

" To his previous sins against historiography (see preceding section) must be added yet another anachronism.

" The obvious conclusion, that the framers hadn't formed any views about the admissibility of chemical tests of controlled substances, and the American people who ratified the sixth amendment weren't even thinking about it, is apparently not permissible.

" That should be contrasted to Scalia's dissent this term in Capterton v. A.T. Massey Coal Co., where he wrote: "Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not. The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed..."

• By contrast to the due process clause, the sixth amendment does contain the answer to all earthly questions, at least those having to do with the admission of the particular type of evidence that 20th century lawyers took to denominating "hearsay."

o Scalia refers to common law cases "in which the prosecution sought to admit into evidence a clerk's certificate attesting to the fact that the clerk had searched for a particular relevant record and failed to find it." (pdf slip op. at 17) That, he says, was testimonial evidence.

" Accordingly, this dicta seems to say that certificates of non-existence of a record are inadmissible without live testimony, contrary to the unanimous authority collected in part 5 of this Outline.

o The opinion says that the confrontation clause problem is not resolved by the defenant's power to subpoena the analyst, if the defendant sincerely wanted to cross-examine him or her. (pdf slip op. at 18-19) That is precisely the issue raised by Briscoe v. Virginia, in which the Court granted certiorari four days after Melendez-Diaz was issued.

o The opinion says the Court has no authority to alter the requirements of the Constitution, even though it did so just five years ago in Crawford. (pdf slip op at 19-21)

" Or, if it is assumed Crawford was correct and the previous history of the sixth amendment nothing but a prolonged mistake, then the Court altered the requirements of the Constitution for the 213 years previous to 2004.

• Finally, in a passage that is already notorious, Scalia states: "Defense attorneys and their clients will often stipulate to the nature of the substance in the ordinary drug case. It is unlikely that defense counsel will insist on live testimony whose effect will be merely to highlight rather than cast doubt upon the forensic evidence. Nor will defense attorneys


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want to antagonize the judge or jury by wasting their time with the appearance of a witness whose testimony defense counsel does not intend to rebut in any fashion. [fn 13] ... We simply do not expect defense attorneys to believe that their clients' interests (or their own) are furthered by objections to analysts' reports whose conclusions counsel have no intention of challenging."

o Beyond the "what planet does he live on?" naivete of the passage—a reminder that none of the 8 current justices other than Justice Alito has criminal law experience, and that Justice Scalia hasn't practiced law since the 1960s—an argument could be made that any defense attorney who doesn't insist on the analyst's appearance is failing to do his or her job.

The Crawford Outline...The Crawford Outline Cases interpreting Crawford v. Washington March 8, 2004...

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Transcript of The Crawford Outline...The Crawford Outline Cases interpreting Crawford v. Washington March 8, 2004...