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Article Excerpt
I. INTRODUCTION: DOMESTIC VIOLENCE CASES AFTER CRAWFORD
Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with [a] jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.
--Justice Scalia's majority opinion in Crawford v. Washington (1)
Two years after Crawford v. Washington created a wave of uncertainty regarding the significance of the newly defined Confrontation Clause, the Supreme Court issued a decision defining the terms "testimony" and "testimonial" that was intended to clarify Crawford's ambiguities. The new case, Davis v. Washington (Davis/Hammon), (2) puts to rest some of Crawford's ambiguity, but does not resolve Crawford's central contradiction between its desire for more face-to-face confrontation and its limited reading of the scope of the Confrontation Clause.
Before Crawford, domestic violence cases had evolved in many states to the point that the government was presenting its case without testimony from the alleged victim or other eyewitnesses. (3) In lieu of the complainant, police officers would testify to what the complainant had told the police at the scene. (4) In many situations, the 911 call or the complainant's statement to police responding to the scene was the only evidence against the defendant. (5) These statements were labeled "excited utterances" or "spontaneous declarations" by prosecutors and judges, and were thus admissible as an exception to the hearsay rules. (6) Constitutional analysis before Crawford determined that once the hearsay rules were satisfied, so was the Sixth Amendment right to confront witnesses. (7) As a result, the government did not need to worry about obtaining the alleged victim's cooperation or summoning the witness to court. Men and women could be arrested, tried, and convicted by an accusation that was never subject to oath or cross-examination.
Crawford restored the constitutional right to confront witnesses from the rules of evidence, thus revitalizing the Confrontation Clause. (8) In so doing, the decision threatened to end the recent practice of relying on out-of-court statements rather than eyewitness testimony at trial in domestic violence prosecutions. In Crawford, the Supreme Court determined that even if a statement is admissible under a state's evidentiary rules, the statement may violate the Confrontation Clause if there is no opportunity to cross-examine the witness. (9) The Court announced that the Confrontation Clause guarantees live witness testimony unless the witness is unavailable, in which case only prior testimony subject to cross-examination is permitted. (10)
Criticism of Crawford's ambiguity abounds. (11) One judge in New York put his frustration into writing when he was asked to admit an emergency call to the police under the excited utterance exception:
Are such calls testimonial in nature, or not? Do they constitute "police interrogation" (because the caller answers questions posed by the police operator), or not? May they be admitted into evidence under various traditional exceptions to the hearsay rule? Or would their admission violate the Sixth Amendment? The Crawford decision is rich in detail about the law of England in the 16th, 17th and 18th centuries, but as the Chief Justice points out--it fails to give urgently needed guidance as to how to apply the Sixth Amendment right now, in the 21st century. (12)
To resolve the uncertainty, the United States Supreme Court consolidated two cases, Davis v. Washington and Hammon v. Indiana, and issued one decision officially known as Davis v. Washington that resolved both appeals. (13) Hammon questioned whether statements made to police responding to the scene of an alleged act of domestic violence are admissible at trial through the police officer when there is no opportunity to cross-examine the person who made the statements. (14) Davis challenged the admissibility of 911 calls accusing a person of a criminal act without the opportunity to cross-examine the person who made the out-of-court allegation. (15) Together, these cases covered the typical methods employed by the state to successfully prosecute domestic violence cases without the cooperation of a complaining witness, pitting the right to confront one's accusers against the expanded use of the excited utterance hearsay exception. Thus with Davis/Hammon, the Court had an opportunity to reaffirm Crawford's preference for live witnesses at trial over hearsay accusations. This Article will discuss in-depth how the Court approached this opportunity.
Section II of this Article presents a domestic violence case handled by students at Boston College Law School before Crawford was decided to illustrate how the "excited utterance" exception worked in practice. The alleged victim did not appear, and the government attempted to base its case on statements made at the scene. The case helps explore the importance of cross-examination and the concept of "witness," concepts at the heart of the Confrontation Clause.
Section III explains how Crawford recognized the need to end hearsay-based prosecutions but failed to deliver a ruling that would ensure its demise. Crawford pulled in two inconsistent directions: one that required accusers to come to court to testify; and the other that limited the scope of the Confrontation Clause to exclude many witnesses whose out-of-court accusations form the proof of criminal wrongdoing.
Section IV analyzes the recent Supreme Court case of Davis/Hammon that applied Crawford's Confrontation Clause jurisprudence to domestic violence prosecutions. On the one hand, the Court's decision changed the practice in the trial courts to prevent a large range of hearsay from substituting for live testimony. On the other hand, the Court's reasoning was inconsistent and may be read as a road map for police and prosecutors to circumvent the confrontation requirement in domestic violence cases where statements fit the "excited utterance" doctrine. Ultimately there was a contradiction in Davis/Hammon, just as there was in Crawford. The Court wanted more confrontation but defined the scope of the Sixth Amendment right to confront witnesses in a way that allowed many witnesses to accuse others without testifying in person. (16)
Section V examines how other scholars have viewed the values and contours of the Confrontation Clause post-Crawford. Unlike previous scholarly works, this Article lays out a definition of "testimonial" that examines the role testimony had at trial rather than trying to decipher what occurred when the statement was originally uttered out-of-court. The Sixth Amendment is a trial right, but the Court insists on treating the Amendment as a question of police procedures more akin to Fourth and Fifth Amendment analysis. The Court misses the real meaning of the Sixth Amendment right of accused persons to confront the witnesses against them. Currently, post-Crawford jurisprudence threatens to drift away from an understanding of how evidence operates within the courtroom and may create new legal fictions so that "witness" does not mean witness and the term "testimonial" has little to do with testimony in court.
II. A DOMESTIC VIOLENCE CASE BEFORE CRAWFORD
Indeed, one would shudder at the prospect of a criminal prosecution in which the evidence for the prosecution consisted solely of a police officer reading his or her report into the record. (17)
A. THE FACTS OF THE CASE
Let me start with a real case in which the government planned to use the excited utterance exception to the hearsay rule, a case I supervised as a professor in the Boston College Criminal Justice Clinic. The police report related what had occurred when the police arrived on the scene: "Upon arrival spoke to [the alleged victim] who stated he has a child with [the suspect]." The alleged victim told police that the suspect
did knock on victim's door and at this time [the alleged victim] did step out of his apartment, and while talking to [the suspect] she attempted to stab him with a Black Handle Kitchen Knife, and after missing she did scratch him on the left side of the face causing a cut. (18)
The report went on to explain that the alleged victim refused medical attention and told police that the suspect threw the knife over the front porch railing. The police found the knife and brought a complaint for assault with a dangerous weapon. (19)
B. THE EXCITED UTTERANCE EXCEPTION TO THE HEARSAY RULES
In our case, if the alleged victim did not appear at trial to testify against the accused, the government would proceed anyway, asking the police officer to repeat the statements made at the scene under the excited utterance exception to the hearsay rules.
An excited utterance, sometimes referred to as a spontaneous utterance or spontaneous declaration, is a hearsay exception to the rules of evidence that generally forbids out-of-court statements from being introduced at trial. (20) To be admissible as an excited utterance, the government must show that the statement was made under "external circumstances of physical shock" before reasoned reflection was possible. (21) One Massachusetts case from 1994 described the purpose of the excited utterance:
The excited utterance exception to the hearsay rule "is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties ... so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy ... and may therefore be received as testimony to those facts." (22)
Wigmore is liberally quoted above, and is generally credited with creating the hearsay exception in the early part of the twentieth century. The hearsay exception was expanded exponentially in recent years as prosecutors sought to improve the conviction rate for domestic violence cases. (23) Wigmore actually used the term "testimony" in the above quote, a term which became important after Crawford. Wigmore recognized that by allowing police to repeat accusations in court under the new hearsay rule, these accusations were "received as testimony" in court. Wigmore's use of the term testimony is an accurate description of the trial. Had the judge allowed the accusation that our client had a knife, it would have been testimony regardless of whether the statement was made at trial by the alleged victim, or by the police officer.
During the first fourteen years that I practiced criminal law, the excited utterance exception was notable in its absence. But starting in 1998, prosecutors began introducing statements as excited utterances in domestic violence cases. (24) By 1999, prosecutors were marking all pre-trial conference sheets in domestic violence cases with the notation that they planned to introduce excited utterances. (25) The government would then plan on introducing the excited utterances with or without a live witness on the stand. As a professor, I made a point of teaching students that the police report was hearsay and was not admissible as evidence. Students were expected to read reports carefully to separate out which witnesses were necessary to establish the government's case. In 2002, a student told me I was wrong. With the expanded excited utterance she explained, the police report does come into evidence. She had a point; there were no eyewitnesses, and the officers had memorized their reports and could recite them in court. By the time Crawford was decided, the prospect of trial by police report had become a reality in many courts around the country. (26)
C. HOW THE CONFRONTATION CLAUSE DOCTRINE CORRUPTED THE CONCEPT OF WITNESS
Without the excited utterance exception, the case was doomed. Like many victims and alleged victims of domestic violence, the man answered police questions at the scene about what happened, but later chose not to cooperate with the District Attorney's office. Before the expansion of the excited utterance rule, if the victim did not testify, the state would not be able to meet the elements of the charge. At trial, the police would only be able to testify that they went to the house, saw the alleged victim, and recovered a knife where he pointed. The State would not be able to prove that anyone assaulted the alleged victim, since there were no witnesses to testify to the assault. Thus, the knife would be the lone piece of evidence, useless when unconnected to any narrative. Thanks to the expanded excited utterance exception, however, the government planned to try this case with or without the alleged witness' cooperation. If the alleged victim did not show up or recanted, the officer would take the stand and testify to what the alleged victim had told him at the scene. Cases such as this one that would have been dismissed could now be prosecuted, resulting in many more guilty pleas as well as trials.
The disadvantages to the expanded excited utterance exception and the accompanying erosion of the accused's right to confront witnesses are more subtle but no less substantial. As this case illustrates, there is a corrupting influence when a police officer can testify merely by reciting what a witness told him some months before. Justice became corrupted when a shift occurred in the understanding of the term "witness." In our case, when the alleged victim's statements came into trial, that person was a witness in any real understanding of the term. Whether that person was lying or mistaken mattered; whether the alleged victim had a bias mattered. In fact, the case turned on whether the jury believed that the alleged victim was telling the truth beyond a reasonable doubt. Under the Sixth Amendment, counsel had a right to cross-examine witnesses. However, the shift in the law before Crawford allowed the police officer to become the key prosecution witness, even though he did not witness the event that allegedly occurred.
The corruption of the concept of witness became most evident when one considered cross-examination of the alleged victim. Had our students been able to cross-examine him, they would have brought out his motive in pinning the crime on the defendant and in negating his own guilt. The students could have attacked the alleged victim's story for inconsistencies. Finally, the jury would have had an opportunity to take the measure of the man when he testified. It was little comfort that the students could crossexamine the police officer. The officer was not an eyewitness to the crime, and no inconsistencies in the victim's stories could be extracted. Particularly galling to the truth function was that as a professional, the police officer would make a far more convincing witness than the alleged victim, and hence the alleged victim's story gained credibility in the retelling. The defendant in our case was unable to confront the witness against her because her lawyer could cross-examine only the police officer and not the alleged victim.
This notion of a witness not being a witness played out in the clinic case during negotiations with the prosecutor. In our case, the alleged victim had a criminal record and was on a suspended sentence for selling drugs. Normally, a criminal defendant in Massachusetts has a right to impeach a witness with criminal convictions and current probation obligations that might show a desire to cooperate with the government to protect the witness's self-interest. (27) In this case, once the victim's record came to the jury's attention, the jury might be less likely to believe what the victim told police, and it would enhance the defendant's theory of the case that the witness had something to lose by shifting the blame. The student attorney showed the prosecutor a copy of the victim's record with the hope that this would encourage the prosecutor to consider dropping the charges. Instead, the prosecutor decided she would neither subpoena the victim to court nor call him to the stand at trial. That way, the prosecutor explained, she would be able to block the defense from introducing the victim's record. (28) In the prosecutor's mindset, criminal records were only allowed to impeach witnesses, and by keeping the victim off the stand, she thought the victim was no longer a witness. As a result, the police officer was the witness, and his credibility was at issue. (29) I do not intend this as a criticism of the particular prosecutor but of the Confrontation Clause doctrine. This was a veteran assistant district attorney who had garnered much respect because of her fairness and judicial temperament. This example illustrates the corroding influence of the pre-Crawford approach to confrontation rights and how quickly the deprivation of one civil liberty can spread to take away other rights. In this case, a trial without confrontation also threatened to become a trial without impeachment. The case also illuminated the need to interpret the Crawford opinion in a manner that revitalized the right to confront witnesses.
Another corrupting aspect of the excited utterance doctrine concerns police memory. For the victim's allegation of the knife assault to qualify as an excited utterance, the judge must find that the alleged victim made the statement under the shock of the event while the reflective faculties that allowed him to dissemble were stilled. When the student investigator interviewed one of the police officers, the officer used all the magic words that would trigger a court to find the statements were excited utterances. The officer spoke of the alleged victim being "definitely still under the shock of the event" and "definitely excited." However, at the interview, this officer could not remember if he arrived at the scene first or if another officer was at the scene and had already started the investigation. The interview raises questions of whether the officer really had a memory that the alleged victim was in shock and whether he could know he was under the influence of the exciting event when the officer had never met him before. The officer's words, repeated by police in multitudes of domestic violence cases since the excited utterance exception was expanded, were formulaic incantations to avoid the case getting thrown out. The legal fiction had corrupted the process of police memory.
It is doubtful that the prosecutor and police in our case really believed that the alleged victim had no capacity to lie because of the shock of the traumatic event. Through the decade preceding Crawford, statements introduced under the excited utterance exception were not really "verbal reflexes." Rather, they were incriminating statements made by someone who had the ability to lie, just like all human beings, though they might be less likely to lie. Government officials, including judges, were thus participating in a legal fiction and making an end run around the Sixth Amendment to reach the understandable goal of prosecuting people who may otherwise have escaped punishment.
In our case, the student attorneys made a motion for funds for an expert to help the court evaluate whether the statement in this case constituted a reliable statement under scientific theory. As a matter of science, people have the capacity to lie less than one minute after a shocking event. (30) There is some psychological literature from the 1920s that suggests that the danger of fabrication decreases when the declarant makes a contemporaneous statement or a statement within a couple of seconds of an event. (31) But as one commentator noted about the early scientific studies: "[O]nce the number of seconds has increased even slightly the reliability of the description is substantially reduced. Thus, the hearsay statement would have to be spoken virtually simultaneously with the described event for even the slightest assurance of increased reliability." (32) In our case, the police arrived approximately five minutes after the 911 call. In Massachusetts, it was not extraordinary for statements made an hour or more after the event to qualify as excited utterances. (33) Time was not going to be a factor that the government would need to overcome unless we prevailed on our motion that asked the court to ignore precedent in favor of science.
The judge denied the students' motion for funds to hire an expert because legally, the issue of whether the statement fit the reliable verbal reflex requirement is a question for the judge and not the jury. (34) However, the students' work did pay off in this case. After a hearing, the judge ruled that he was not sufficiently satisfied of the reliability of the excited utterance, so the witness would have to testify in person. The case was dismissed on the trial date. (35) This was a highly unusual result, as any practicing attorney in domestic violence court in Boston would attest. (36) The rare disposition made the case highly memorable to me, so I use it for its capacity to illuminate the issues, despite the practically sui generis result.
The problem of fitting domestic violence crimes into the criminal justice model of the founding fathers has been difficult. Tom Lininger estimates that as many as 80 to 90% of domestic violence victims recant or do not come to court. (37) Our case fit the recanting mold. The alleged victim even wrote a letter denying his ex-girlfriend's guilt.
The clinic case illustrated the meaning of the term "witness" in a trial where the accuser is absent. When an alleged victim's accusations come into trial, that person is a witness in any real understanding of the concept. Whether that declarant was lying or mistaken matters; whether the witness had a bias matters; and whether the witness was leaving something out (such as pushing the defendant before she drew a knife) might make the difference between a guilty verdict and an acquittal. In fact, the case turned on whether the jury believed the witness was telling the truth beyond a reasonable doubt. As Richard Friedman has pointed out, the notion that this type of hearsay is so reliable that nothing could be gained from crossexamination is like allowing a judge to decide that a witness' testimony on direct was so reliable that we can fairly dispense with cross-examination. (38) Owing to the expanded excited utterance rules, people whose accusations served to convict a criminal defendant were not necessarily witnesses and the right to cross-examine witnesses was applied to in-court witnesses only. This was the state of affairs when Crawford was decided.
III. CRAWFORD'S PROMISE
So what is all the fuss about? A paradigm shift in confrontation clause analysis, that's what. (39)
The text of the Sixth Amendment uses the term witnesses. It states: "In all criminal prosecutions the accused shall enjoy the right ... to be confronted with the witnesses against him." (40) How should the courts define "witnesses" against an accused? Do criminal defendants only have a right to cross-examine those witnesses who actually appear at trial or is the term so broad that it includes all hearsay declarants? Before Crawford was decided, Ohio v. Roberts controlled the interpretation of the clause. (41) Theoretically, any declarant was a witness for Sixth Amendment purposes under Roberts. (42) However, because the Sixth Amendment did not require confrontation of particularly reliable evidence, in practice, there was no absolute right to confront one's accuser under Roberts--only a right to confront those witnesses whose hearsay statements did not seem trustworthy to a trial judge. (43)
Crawford announced a paradigm shift, threatening to end the recent practice in domestic violence prosecutions of relying on out-of-court statements rather than live witnesses. Sylvia Crawford had implicated her husband, Michael Crawford, in a killing and declined to take the stand, citing Washington's marital privilege. (44) Her statements were introduced as a statement against penal interest, an exception to the hearsay rules, and because the judge found them particularly reliable, he admitted them as evidence. (45) The Supreme Court resolved the question of whether the absent Ms. Crawford was a witness for Sixth Amendment purposes in the affirmative. (46) As Justice Scalia wrote, the term "witnesses" applies to those who "bear testimony." (47)
The key term in the Crawford decision is "testimonial." (48) In Crawford, the concept of testimonial is intrinsically intertwined with the concept of "witness." The terms witness and testimonial are flip sides of the same coin in the new jurisprudence: because Ms. Crawford bore testimony, she was the witness. Whether a statement was testimonial is the same as asking whether the person who made the statement was a witness against the defendant at the trial. However, the majority famously declined to define its newly minted term "testimonial," except to say that "[v]arious formulations of [the] core class of 'testimonial' statements exist" and "[w]hatever else the term covers, it applies at a minimum to ... police interrogation" repeated at trial. (49) Although there are many ways to interpret what the Court planned to accomplish with the word testimonial, one interpretation is that it offers a functional approach to the term witness. Under this definition, courts could no longer pretend that a witness is not a witness just because he was not summoned to court, for his accusatory statement could be repeated at trial under an exception to the hearsay rules. (50)
That was the promise of Crawford. No longer would changing hearsay exceptions determine constitutional rights. No longer would a judge determine that cross-examination of a witness was unnecessary because her statement fell into a hearsay exception that was considered particularly reliable. It was now the jury's role to determine the credibility of the person who made the statement and the reliability of the statement. Judges would no longer be empowered to remove the right to crossexamine declarants just because the judges found their statements to be reliable. Assuming the witness was available for trial, Crawford announced that the Constitution required nothing less than cross-examination of that witness for all testimonial statements. (51)
Despite this strong promise to reinvigorate the Confrontation Clause, Crawford is flawed. The Crawford opinion pulls in two inconsistent directions. In one direction is its demand for more face-to-face confrontation. (52) The case seeks to ensure that henceforth, juries will determine reliability through observing direct and cross-examination of live witnesses. (53) In the other direction, however, Crawford implies a narrow reading of the Confrontation Clause where only some evidence that is the equivalent of trial testimony will be deemed "testimonial," and all other evidence against an accused will not even be governed by the Sixth Amendment. (54) If the clause only applies to a narrow class of out-of-court witness statements, then for all other out-of-court witness statements, judges will continue to determine if the statement is so reliable that crossexamination adds nothing for the factfinder.
The Court's goal of reinvigorating the Sixth Amendment can be gleaned through numerous historical quotes that flow throughout the Crawford opinion. "The common-law tradition is one of live testimony in court subject to adversarial testing," the Court wrote. (55) The Crawford court quoted a case decided in 1794, three years after the adoption of the Sixth Amendment: "[I]t is a rule of the common law, founded on natural justice, that no man shall be prejudiced by evidence which he had not the liberty to cross examine." (56) The Court criticized Roberts for allowing a jury to hear evidence "untested by the adversary process, based on a mere judicial determination of reliability." (57) Instead, the Confrontation Clause "reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined." (58) The majority opinion sounded a note of incredulity at the state of the American criminal trial where police read in the statements of witnesses because a judge decides they are reliable. (59) When the majority wrote that "[d]ispensing with confrontation because testimony is obviously reliable is akin to dispensing with [a] jury trial because a defendant is obviously guilty," (60) the Court condemned the practice of allowing judges to determine reliability, a practice which deprived juries of their duty to make determinations based on the jurors' own observations as to how witnesses answer questions.
Through statements like these, the majority signaled its intent to require juries rather than judges to determine credibility and to give juries the traditional tools to make these determinations, namely through observing the witness answer questions on direct and cross-examinations. These broad pronouncements denote a Court bent on breathing new life into a neglected constitutional right.
In contrast, there is plenty of language in the opinion that suggested the Court was concerned primarily with the historical abuses that the Framers of the Sixth Amendment probably had in mind when they penned the clause near the end of the eighteenth century. (61) When the Court listed three possible core definitions of "testimonial" statements, the list was made up primarily of formalized documents, for example, "extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions." (62) These categories listed types of statements by how they were assembled, rather than by taking a functional approach to the statements to see if they became the functional equivalent of testimony at trial.
Another way to frame Crawford's contradiction is by asking whether the Confrontation Clause should look at historical rights or historical abuses. Is the goal of the clause to give current criminal defendants the same rights as they would have had when the Amendment was ratified, or should the Confrontation Clause be interpreted only to prevent the introduction of evidence that the Framers feared would be introduced? Depending upon how the term "testimonial" is defined, these two competing forces within Crawford may be irresolvable. After all, a narrow interpretation of the term testimonial would cede much more discretion to judges to make the type of reliability determinations of testimony that the Court condemned.
Justice Thomas called for a narrow reading of the Sixth Amendment in his concurrence in White v. Illinois, (63) so that only abuses that were known to the Framers from previous English experience with inquisitorial systems would be considered "testimonial," meaning "extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions." (64) Under Thomas' viewpoint, new methods of introducing out-of-court statements, such as the expanded excited utterance doctrine, would be peripheral to core Confrontation Clause concerns because they were not "the abuses targeted by the Confrontation Clause." (65) Although Justice Thomas called for such a limited reading in his concurrence in White, Crawford did not follow this path. (66) Despite the focus on historical abuses, Crawford's majority resolved this issue by determining that the clause prohibits what the Framers would have prohibited had they known it would come to pass, not just what the Framers specifically feared at the time the clause was drafted. (67)
Although Justice Thomas' narrow viewpoint did not prevail in Crawford, state court decisions, such as Hammon and Davis, have pulled out examples of core abuses from Crawford to conclude that the Confrontation Clause only applies to formalized equivalents of testimony, such as affidavits or recorded custodial interrogations, in order to justify the introduction of statements without the opportunity to cross-examine the witnesses. (68) Davis/Hammon gave the Court a chance to revisit the contradictions in Crawford and determine whether the new jurisprudence would indeed bring back live witnesses or whether the new approach to the Confrontation Clause would allow the government...
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