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July 17, 2006

There probably has been no case more heralded by the criminal defense bar since the demise of the Warren Court than Crawford v. Washington.  Before Crawford, hearsay in criminal trials was governed by Ohio v. Roberts, which held that the defendant's right to confrontation was satisfied if an out-of-court statement fell within a "well-recognized" hearsay exception or met "particularized guarantees of reliability."  That was all washed away by Crawford, where the Court unanimously declared that the only criterion permissible for the admission of testimonial statements was the one demanded by the Sixth Amendment:  actual confrontation.

A number of Ohio courts, however, have not exactly been rigorous in applying Crawford, especially since it left undecided exactly what constituted "testimonial statements."  Typical is this 9th District decision which holds that an "excited utterance" is non-testimonial because it falls within an exception to the hearsay rule.  This makes no sense:  if you're going to hold that only statements which aren't hearsay are "testimonial," then you're back to Roberts, and Crawford is a nullity.  Other courts have employed the prosecutor's Best Friend, Harmless Error, to avoid Crawford's consequences, sometimes not even applying the standard for constitutional error; one court fluffed off a Crawford problem by holding that the error didn't affect a "substantial right," leaving unanswered how you get any more substantial than the 6th Amendment.

Fortunately, our court here in Cuyahoga County has done a fairly good job of consistently applying Crawford, and there are a number of decisions you might want to have available if you're going into trial and you know the situation's going to crop up.  You can start with this decision, which came out only a few months after Crawford was handed down, and struck down the reading of a co-defendant's confession.  This case reversed a conviction where the police officer testified what an accomplice had told him, and in State v. Iverson the court ruled that the testimony of another police officer and a technician were barred by Crawford.

That last decision is particularly handy for another reason.  Remember I mentioned that the Supreme Court left undecided exactly what constituted a "testimonial statement"?  The lower courts have been wrestling with that since, and probably the most defense-friendly definition was laid out by the 6th Circuit in US v. Cromer, 389 F3d 662:  "any statement made in circumstances in which a reasonable person would realize that it likely would be used in investigation or prosecution of a crime."  And that's the test that our court approved in Iverson.

I'll have some additional stuff on this in the next few weeks, including the application of Crawford to 911 calls and to statements by alleged child abuse victims.

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