The pitfall with Crawford
I've commented before that a distressing number of trial and even appellate courts can't seem to get a handle on Crawford v. Washington, the 2004 Supreme Court decision which banned the use of "testimonial" statements at trial. So I was happy to see a 6th District decision a couple of weeks ago that did a thorough analysis of how Crawford applies in various situations. Whether that analysis was right is another matter.
State v. Morales was a simple shooting case, but presented a couple of tricky parts. The first was the 911 tape, which began with the person reporting the incident saying, "Oh, my God, somebody got shot!" The caller identified the shooter as a "Basil -- I don't know his last name" and gave the dispatcher a short description of what Basis was wearing and where he was headed. The second was the victim's medical records, which contained numerous references to the victim identifying the shooter as her boyfriend or fiance.
The trial court had allowed all this to come in, and the 6th District began its analysis by considering the two tests it found that the Supreme Court had laid down for considering whether a statement was testimonial. The first was the "primary purpose" test, which involves police interrogation: if the purpose of the interrogation is to enable the police to deal with an ongoing emergency situation, then any statement produced is not testimonial. On the other hand, if the purpose of the interrogation is to "establish or prove past events potentially relevant to later prosecution," then the statement is testimonial, and cannot be used.
The 911 call presented a classic example of the "primary purpose" test, and the court had no trouble concluding that the statements contained in the call were to respond to the emergency, even those concerning the identity of the assailant; as the court noted, this would "help the dispatched officers know whether they would be encountering a violent felon."
The court then looks to the medical records, and applies the "objective witness test," under which a statement is excluded as testimonial if it is "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."
The court concluded that "circumstances under which her statements were made were not such that would lead an objective witness reasonably to believe that the statements would be available for use at a later trial." What was the basis for the court's conclusion? I just gave it to you. Seems you could make a cogent argument that if somebody's telling everybody who will listen, "Hey, my boyfriend's the one who shot me," it's not beyond the realm of possibility that she's considered the possibility that those statements may be used against said boyfriend.
There are two more problems here. First, the vitality of the "objective witness" test, at least as applied to non-law enforcement officers, is open to serious question after the US Supreme Court's decision this past summer in Giles v. California, which contains this observation:
only testimonial statements are excluded by the Confrontation Clause. Statements to friends and neighbors about abuse and intimidation, and statements to physicians in the course of receiving treatment would be excluded, if at all, only by hearsay rules. . .
It's not absolutely clear that this means only statements made to police or their agents can be deemed "testimonial," but that might be the way the Court is heading.
The reference to the hearsay rules brings up the next problem with Morales: counsel didn't raise, and the court never considered, the question of whether admission of the portion of the medical records identifying the shooter was proper under the applicable hearsay rule, the medical records exception under 803(4). As I've mentioned before, Crawford doesn't replace the hearsay rule, it supplements it. Basically:
- 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.
While there are any number of decisions which hold that statements by a child abuse victim to a doctor or nurse identifying the assailant are permissible -- such as State v. Dever -- the general rule, typified by this case, is that an adult victim's statements to medical personnel identifying a perpetrator don't fall within 803(4).
Hey, I didn't promise you this stuff would be easy, did I?