Crawford's continuing evolution
Probably one of the most significant criminal law decisions in the past decade was the US Supreme Court's ruling in Crawford v. Washington, holding that admission of "testimonial statements" at trial violate the Constitution's confrontation clause. As I noted in my first post on the case, the courts have been wrestling since then with the issues raised by the decision.
That they've not been entirely successful in that regard is indicated by the 6th District's decision last week in State v. Riley, where the trial court had allowed into evidence a 911 call by a witness to a robbery, and the police officer's statements about what the witness told him regarding the perpetrators when the officer first arrived on the scene. The appellate court held that these weren't testimonial statements, basically tracking the Supreme Court's decision last summer in Davis v. Washington, which I discussed here; essentially, Davis held that a statement wasn't testimonial if the "primary purpose is to obtain police assistance to meet an ongoing emergency."
Riley suffers from the same problem that a lot of the post-Crawford cases do: the failure to understand the interplay between testimonial statements and hearsay. Some courts commingle the two, such as this 9th District decision which found that as long as a statement qualifies under a hearsay exception, it's not testimonial, a holding which Crawford specifically rejects. (In fact, the 9th District decision relied principally on Ohio v. Roberts, which was overruled by Crawford.) As spelled out in these excellent opinions -- one by Judge Rogers of the 3rd District, discussed here, and one by Judge Gallagher of the 8th District, discussed here -- Crawford requires a two-step analysis: you have to determine whether a statement is testimonial and, if it isn't, you then have to determine whether it qualifies as an exception to the hearsay rule.
The notable problem with Riley is that the court discusses the first issue -- whether the statements were testimonial -- but never gets to a discussion of the second. While it's certainly conceivable that both the 911 call and the witness' statement to the police officer could qualify under the "excited utterance" exception to the hearsay rule, there's nothing in the opinion to indicate that the circumstances here were sufficient to warrant that: there's no mention of the state of mind of the witness, either during the call or at the scene. The latter is especially a problem; while it's easy to imagine the requirements for the excited utterance exception being established in a call about a crime that's in process, it's less obvious that those requirements would be satisfied in a situation where the witness is discussing the event after the perpetrators have fled. In fairness to the court and appellate counsel, it may be that the evidence was so clear on that score that no one raised it, but the court's decision would have been better had the issue been at least discussed.
The bigger problem with Riley is the problem with Crawford: a lack of any clear standard for determining whether a statement is testimonial or not. The courts have moved to fill this vacuum by concentrating on the intent of the maker of the statement, as the Supreme Court did in Davis and the Ohio Supreme Court did last fall in State v. Stahl, discussed here. In fact, the syllabus of Stahl provides that
In determining whether a statement is testimonial for Confrontation Clause purposes, courts should focus on the expectation of the declarant at the time of making the statement. . .
In short, if the declarant expects the statement to be used at trial, it's testimonial, and if she doesn't, it's not. Missing from these opinions is any compelling analysis of why the declarant's intentions should be controlling on this score. For example, in deciding whether a statement is admissible under the excited utterance exception to the hearsay rule, the circumstances surrounding the making of the statement -- whether the declarant was in fact "excited" -- are determinative, not whether the declarant intended the statement to be an excited utterance. What's more, focus on the intent of the person making the statement leads to the somewhat absurd result that if the declarant intends for the statement to be admitted at trial, it can't be, and if she doesn't intend for it to be admitted, it can be.
But it's not clear what might provide a better analytical framework. This might be a problem with the analytical framework of Crawford itself, and the interpretative method upon which the decision was based. Scalia's majority opinion is long on history -- delving into just about every facet of the concept of confrontation, from the Magna Carta to the Constitutional Convention -- but short of consideration of the ruling's real-world impact. That's a problem with originalism itself, as a method of constitutional interpretation, especially in the context of criminal cases. Whatever the Founders might have intended, they were writing at a time when the very concept of law enforcement through an established police force was largely unknown.
There are a bunch of decisions on Crawford-related issues coming down the pike, especially with regard to DNA and other scientific testing. There's one pending over at the 8th District right now, involving the issue of a scientific process in which a number of different people participate: can one person come in and testify about the process, or does Crawford require that each one testify? As I said a while back, I think when the smoke clears, Crawford is not going to have the significance that a lot of people thought it would when it was first decided.