8th District looks at Crawford
I've felt that I've been a little hard on the 8th District recently on some of its decisions, so today I want to give credit where credit is due: the court's recent opinion in City of Cleveland v. Colon is about as good an explanation of the law pertaining to Crawford v. Washington as any that's been handed down recently.
As criminal defense attorneys know, Crawford was the 2004 US Supreme Court decision where the state had attempted to introduce a wife's statement against her husband. The wife couldn't testify because of the spousal privilege, but the state tried to introduce the statement under the declaration against interest exception to the hearsay rule. The Supreme Court held that wasn't permissible, because "testimonial statements" are barred by the Confrontation Clause: the only way the evidence can come in is if the person who made the statement actually testifies.
Since that time, courts have wrestled with exactly what is a testimonial statement, but they've also run into problems with how Crawford intersects with the hearsay rule. Take this 9th District decision from 2005, for example, a domestic violence case in which the court upheld the admission of testimony by the police officers as to what the victim told them. The court's conclusion that the victim's statements qualified as excited utterances is defensible, but its treatment of Crawford is not: it essentially holds that if the statements at issue qualify under a hearsay exception, Crawford is irrelevant. In fact, the opinion cites to Ohio v. Roberts on numerous occasions that out-of-court statements don't violate the confrontation clause as long as they qualify under a "firmly-rooted" hearsay exception, without apparently realizing that Crawford expressly overruled Roberts on that point.
By comparison, Judge Gallagher's opinion in Colon is spot-on. Colon presented the identical situation: a domestic violence case in which the prosecution sought to admit the victim's statements as an excited utterance. (The victim didn't testify.) The opinion correctly notes that this is no longer sufficient:
In the wake of Crawford, then, it can no longer be said that 'the judicial inquiry is at an end,' so long as an out-of-court statement qualifies as an excited utterance or falls within some other 'firmly rooted' hearsay exception.
The first step is to determine whether the statement is testimonial; if it is, that's the end of the inquiry, because its admission would violate the defendant's right to confrontation. If it isn't, then you proceed to the next step: determining whether the statement does in fact qualify under an exception to the hearsay rule. In this case, that meant deciding whether it qualified as an excited utterance.
Actually, you can perform those steps in either order. Obviously, if something doesn't qualify under a hearsay exception, it's not going to come in regardless of whether it's testimonial or not. If it does qualify, then you can proceed to determine whether it's testimonial. The important thing to remember is that both steps need to be performed anytime out of court statements are sought to be admitted. You can't just glide by Crawford and presume, as the 9th District did, that statements which qualify under a hearsay exception are non-testimonial.
Of course, writing a tight, well-organized, well-thought-out opinion is nice, but it doesn't help if you get the decision wrong. I don't think that happened here, at least under current precedents. The court concluded that the statements were excited utterances, and thus qualified under that hearsay exception, and that they weren't testimonial because they were intended to seek immediate assistance, not provide information to be used in the prosecution of the defendant.
That last one is a little tricky, because it's obvious that a woman who's bleeding and yelling, "My husband is beating me up," could be offering that statement for both purposes. Still, given the court's previous cases, and the US Supreme Court's decision last year in Davis v. Washington, which I discussed here, I don't think there was any other result the court could've come to.
This goes back to what I said at that time: despite the initial hooplah from the defense bar when Crawford came out, it's becoming clearer that the decision isn't as broad as initially thought. Justice Thomas makes an argument in his dissent in Davis that Crawford should be limited to "formal" statements to the police, and I wouldn't be surprised if the Court moves toward that view over the next few years.