Still figuring out Crawford
It's been five years now since the US Supreme Court's decision in Crawford v. Washington revolutionized the Confrontation Clause. A couple decisions from the appellate districts, and an oral argument in the Ohio Supreme Court, indicate that there's still work to be done in sorting it all out.
The 6th District's decision last week in State v. Young, for example, makes a complete hash of Crawford. The trial court had allowed a police officer to testify that that, after he arrived in response to a burglary call, one of the people there told him who he believed was the intruder, and provided an address for that person.
The court used the test from the Supreme Court's decision in State v. Stahl, which focuses on whether "the statement was 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 determines that "there is no indication Northrup made statements with the intent they be used as testimonial evidence against appellant." His intent, though, is irrelevant. It's what he reasonably could have believed, and if you're telling a police officer that so-and-so is the burglar they're looking for, and here's where you can find him, it's tough to argue that you're not figuring the police are going to use that information to investigate and prosecute the guy.
What's more, that's not the right test. Stahl involved a statement to a nurse, not a police officer, and the court completely misses that in State v. Siler, the Supreme Court adopted the "primary purpose" test for statements to officers: statements "are testimonial when the circumstances objectively indicate that there is no ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Here, there was no "ongoing emergency"; the victim had seen the burglars drive away. Finally, even if the statements had been non-testimonial, there's still the problem of whether they fit within a hearsay exception. The court doesn't even address that.
Crawford receives much better treatment in the 8th District's decision in State v. Steele. When police responded to a 911 call, they found the 80-year-old victim, Virginia Austin, severely beaten. She told the police officer that someone had broken into her house and assaulted her. She was taken to an ambulance, where she told the EMT that the two other people in the apartment -- the defendants -- had caused her injuries. The tech summoned the officer, and Austin told him the same thing. The officer questioned her further in the hospital, and elicited the same responses. Austin died three days later.
The court nails the issue with regard to the statements to the officer. The ones in the apartment were to meet an ongoing emergency: the police hadn't secured the apartment, and really were just trying to sort out what had happened. The officer's questions in the ambulance and at the hospital were another story, though. By that time, the emergency had ceased, and the officer was trying to collect information for investigation purposes; in fact, the officer had admitted as much.
Things get shaky with the statements to the EMT, because the court keeps shifting from one test to the other. At one point it says that Austin's statements "are nontestimonial if no reasonable person in her position would believe that her statements were made for the purpose of conducting a criminal investigation." It then veers off into a discussion of "whether the EMT's intent in asking the questions affected Austin's expectations when responding to him," before concluding that "the EMT questioned Austin for the primary purpose of medical treatment rather than to obtain information relevant to the police investigation."
Part of the problem here is that it's not clear that Stahl's test has any continued vitality. Stahl was a bad decision to begin with; the court's determination that the victim couldn't have reasonably expected her statement to be used for prosecution was absurd, given that the witness signed a form stating that what she said would be used in the investigation of the crime, and a police officer sat in the room during the entire interview. There's been some attempt to reconcile Stahl with Siler, by suggesting that Siler applies to statements made to the police, while Stahl deals with statements made to non-law enforcement people. But there's serious question, especially in light of dicta in Giles v. California (discussed here) as to whether Crawford applies at all to statements made to the latter group. The better view is probably just to stick with the primary purpose test.
That still means that, as in Steele, an issue can arise as to whether the questioner can be deemed to be an agent of law enforcement. That was the focus point in the arguments in the Ohio Supreme Court two weeks ago in State v. Arnold (link is to appellate decision). Arnold had been convicted of rape of a four-year-old girl, who gave an interview to a social worker at the Child and Family Advocacy Center at the local hospital the morning following the incident. The appellate court rejected Arnold's Crawford challenge to the introduction of a tape of the interview. Virtually the entire argument in the Supreme Court centered on the Advocacy Center's ties to the police.
Although Siler involved the police interrogation of the child, the opinion cited numerous cases which held that an interrogation by a social worker, as happened in Arnold, could be held to be testimonial. Still, from the tone of the questioning, that's going to be a hard sell; I'd expect Arnold to hold that unless there's some interplay between the social worker and the police -- the cops direct the child to the social worker, or have some control or participation in the questioning -- Crawford isn't a problem.