Getting Crawford right
Just about every criminal defense lawyer knows that Crawford v. Washington, the 2004 Supreme Court decision holding that the defendant's confrontation rights barred admission of a "testimonial" statement, was one of the most unexpected and sweeping changes in criminal law in the past decade or so. As might be expected, courts have grappled with the meaning and effect of Crawford. While the exact definition of "testimonial" is still subject to debate, by early last year, the 8th District had at least gotten the basics right: Judge Gallagher's opinion in City of Cleveland v. Colon (discussed here), contains one of the clearest expositions out there on how Crawford works, specifically the interplay between a testimonial statement and the hearsay rule.
It's been pretty much downhill for the 8th District on Crawford issues since, and that slide continued with last week's decision in In re DD, which involved a juvenile accused of raping a 6-year-old. The trial court had allowed a nurse to testify about the statements the victim made to her, and the defendant argued that the admission of those statements violated Crawford.
The court could have resolved that issue by simply saying that it didn't apply, because in this case, the victim testified. That's one of the exceptions to Crawford: even if an out-of-court statement is testimonial, its admission isn't barred if the person who made it testifies in court. After all, you can hardly claim that your right to confront and cross-examine your accuser has been violated if you get to confront and cross-examine your accuser. So all the court had to say was, hey, the kid testified, end of discussion.
Which it did, but not until after it had discussed Crawford in some detail, and made pretty much of a hash of it. Taking language from Crawford that indicates non-testimonial hearsay doesn't implicate the Confrontation Clause, the court somehow concludes that "Crawford only applies to hearsay statements that are not subject to any hearsay exceptions." (The court came to the same conclusion a month ago in State v. Goza; the same judge authored both opinions.)
In other words, if a statement does fall within a hearsay exception, then Crawford doesn't apply. For example, if a statement qualifies as a declaration against interest, you don't even have to bother with determining whether it's testimonial or not.
Unfortunately, that's wrong: indeed, the fact pattern I just gave you is the one from Crawford. The state had attempted to introduce a statement under the declaration against interest exception to the hearsay rule, and the Court held it couldn't do that, because the statement was testimonial.
While the definition of what constitutes testimonial statement gets a bit tricky, the basic Crawford analysis couldn't be simpler.
- First, you decide if the statement is testimonial; if it is, it doesn't come in, unless the declarant testifies.
- If it isn't testimonial, then you proceed to the hearsay analysis; if it falls within an exception, it's admitted, if it doesn't, it isn't.
It's that simple.
It may be that the court still came to the right conclusion in DD, but it's hard to tell. One of the proposed definitions of a testimonial statement is "a statement about a past act or event which a declarant would reasonably expect to be used later in a criminal prosecution." The court in DD doesn't specifically mention this definition, but obviously has it in mind, and dismissed it with the observation that "it is extremely unlikely that a six-year-old child was thinking about trial or criminal charges when he spoke to the nurse."
That's quite true; as I've mentioned before, one of the problems with the "reasonable expectation" test is that it doesn't work for young children: they have no concept of what a trial is, let alone the likelihood of whether their statements will be used at one. That's why the Ohio Supreme Court last year in State v. Siler (discussed here) held that in interrogations of young children, it was the intent of the person conducting the interrogation, not the expectations of the child, which should control. While Siler involved the police interrogation of the child, the opinion cited numerous cases which held that an interrogation by a social worker or a nurse, as happened in DD, could be held to be testimonial. DD, of course, never mentions Siler, and the facts really aren't developed sufficiently in the opinion to determine whether the questioning by the nurse might have produced a statement that should have been regarded as testimonial.
So there's certainly a possibility that DD came up with the right result. But if the process is skewed, as it was here, that significantly undermines the confidence in the result. That becomes a particular problem a few years down the road if this case goes into Federal court on a habeas petition. (And while a juvenile case isn't likely to, a case like Goza, where the defendant got 31 years for rape and kidnapping, is.) As most criminal defense lawyers also know, the 1996 changes to the habeas law substantially restricted its availability. Instead of allowing Federal changes to second-guess state court determinations of Federal law, a Federal court isn't allowed to grant relief unless the state court's decision was based on a "misapplication of clearly established Federal law."
Well, guess what? You don't get much more of a misapplication of clearly established Federal law than a decision which states that Crawford only applies to statements which don't fall under a hearsay exception. With DD and Goza, we have four judges signing off on two opinions in the past month which establish, for the largest county in Ohio, a precedent on Crawford issues that is plainly wrong.
So if you're practicing in Cuyahoga County, get a copy of Judge Gallagher's decision and take it along with you when you have a trial where you expect Crawford issues to arise. And hope that the judge hasn't read DD or Goza.
Tomorrow, I'll talk about a forthcoming US Supreme Court case on another exception as to what constitutes a testimonial statement.