Crawford, Stahl, and Siler: Part I
On August 20, 2001, the police went to the home of Barbara Siler, alerted by a call from her father that she hadn't appeared for work. They found her body hanging in the garage, and her three-year-old son Nathan asleep in his room. The police officer, who'd received training in interviewing children, took the boy out on the lawn and, over a forty-five minute period, elicited the fact that "Daddy" had come to house and knocked loudly on the door, that "Mommy and Daddy were fighting," and that "Daddy tied something around Mommy's neck." The police went to the home of Barbara's estranged husband, Brian Siler, and found he had scratch marks on his knuckles and on his chest, near his neck.
Siler was charged and convicted of the murder of his wife. The officer who'd interviewed Nathan testified to what the boy told him. The court of appeals upheld the conviction, finding that the child's statements were admissible under the "excited utterance" exception to the hearsay rule. The Ohio Supreme Court denied review, and that was that.
Until Siler appealed to the US Supreme Court, which vacated the conviction and remanded the case back to the court of appeals for consideration in light of Crawford v. Washington, the 2004 decision which held that admission of out-of-court "testimonial" statements, without the opportunity to cross-examine the declarant, violates a defendant's confrontation rights. The 5th District took another look at it, decided that the child's statements were testimonial, and reversed the conviction.
The case is now before the Ohio Supreme Court, and promises to provide an interesting followup to the court's first foray into post-Crawford jurisprudence last summer in State v. Stahl. In Stahl, the Court upheld the admission of a rape victim's detailed statement to a nurse in a rape crisis unit, keying on Crawford's definition of a testimonial statement as one "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." According to the slim 4-3 majority, the victim made the statement in the "reasonable belief" that it was for purposes of medical diagnosis and treatment, not for use at trial; this despite the fact that a policeman took her to the nursing unit and sat in the room during the entire interview, that the form she signed before giving the statement specifically indicated that the information she gave "would be used in the investigation and prosecution of this crime," and that no medical treatment was provided.
In addition to the questionable result, Stahl's focus on the expectation of the maker of the statement as determinative of whether it was testimonial presented some additional problems. First, it contemplated a binary process -- either the maker of the statement expected it to be used at trial, or expected it to be used for some other purpose -- with no explanation of why that should be true; why couldn't the maker anticipate that it would be used for both? Nor does the case provide any explanation of why the expectation of the maker should be determinative.
Indeed, that formulation seemed to run counter to the US Supreme Court's follow-up to Crawford. In the summer of last year, it decided two companion cases, Davis v. Washington and Hammon v. Indiana. In both cases, the police had responded to a domestic violence call. In Davis, the court held that the victim's statements to the 911 operator weren't testimonial, because they were made in response to an ongoing emergency. In Hammon, the court held that the victim's statements in response to the officers' questioning, after they'd arrived and separated the parties were testimonial, because at that point the emergency had ceased and the police were simply attempting to gather information on past events. But perhaps the most significant part of the opinion was Justice Scalia's formulation of what constituted a "testimonial" statement:
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. 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.
To be sure, Scalia acknowledged that the definition wasn't intended to be exhaustive. Still, it's hard to square that with Stahl's syllabus:
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; the intent of a questioner is relevant only if it could affect a reasonable declarant's expectations.
Although that discrepancy was easy to pass off in Stahl -- the Court distinguished Davis and Hammon on the basis that those involved statements to the police, while Stahl involved a statement to a nurse -- it can't be dismissed on a similar basis in Siler. In fact, as was clear in the oral arguments on Siler two weeks ago, Siler reveals the central problem in Stahl: the expectations of the declarant are supposed to determine whether or not a statement is testimonial, but no one could seriously contend that 3-year-old Nathan Siler ever contemplated what use would be made of what he told the police officer that afternoon on the day his mother died.
Tomorrow we'll discuss how the arguments went in Siler, and what the Court might do with the case.