Confrontation
CRAWFORD V WASHINGTON (2004)
How Did We Get Here?
Where Are We Going?
Mike Denton
michael.denton@co.travis.tx.us
512-854-9896
United States Constitution
Sixth Amendment
In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial . . . to
be confronted with the witnesses against him; to
have compulsory process for obtaining
witnesses in his favor, and to have the
Assistance of Counsel for his defense
Confrontation
Domestic Violence Trials
In what % of Domestic Violence cases that you
hear does the complaining witness fail to come
to court or have a memory loss or refuse to
testify or….?
Domestic Violence Trials
Pre-Crawford



Marital Privilege/Absent Witness
Witness Confrontation
Hearsay Exceptions
 Excited Utterances
(Zuliani v State, Tex Crim App ‘03)
 Present Sense Impressions
 Medical Treatment Statements
 Other
Pre-Crawford Law

Ohio v. Roberts, 448 U.S. 56 (1980)

Where witness was unavailable, out of court
statements were admissible over a confrontation
objection IF:
 Statement fell within firmly rooted hearsay
exception OR
 Statement had "indicia of reliability" such that
admission of it comports with the "substance of the
constitutional protection."
Crawford
THE CASE
Crawford v. Washington
124 S.Ct. 1354 (2004)
Justice Scalia
Confrontation Clause
excludes testimonial
statements unless: declarant testifies OR
- witness is unavailable and
prior statement was crossexamined.
Crawford v. Washington
541 U.S. 36 (2004)

Facts
 Convicted of stabbing a man he claimed tried to
rape his wife
 Recorded statement made by Crawford’s wife to
police
 Wife unavailable at trial due to spousal privilege

Holding:
 Playing of out of court statement violated
defendant’s Confrontation rights
(Classic, Formal, Police “Interrogation”)
Crawford v. Washington
541 U.S. 36 (2004)

Confrontation Clause bars admission of testimonial
statements unless:
 Witness is available to testify, OR
 Defendant has had a prior opportunity for cross

Left open the question of what was testimonial
The Confrontation Right

What it is:
 Procedural right guaranteed by the Constitution
that the State must bring witnesses to court

Attaches at trial. Does not apply to:
 Pretrial hearings
 Probation revocations (CCA has not addressed)
(But PSI…)
 Parole revocations
SATISFYING CRAWFORD
Declarant Testifies
Unavailable + Opportunity for
Prior Cross
3. Not testimonial
4. Forfeiture by wrongdoing
1.
2.
SATISFYING CRAWFORD
1. Declarant testifies
DECLARANT TESTIFIES
Crawford v. Washington
124 S.Ct. 1354 (2004)
Confrontation Clause
excludes testimonial
statements
Justice Scalia
- unless declarant
testifies
Memory Problems At Trial
SATISFYING CRAWFORD
2.Unavailable
witness-prior
testimony
was subject
to cross by
defendant.
PRACTICE POINT
Hypothetical
Woman gives statement to police that
boyfriend hit her
Later recants to defense investigator
Testifies at trial consistent with initial
report but is impeached with
recantation to investigator.
PRACTICE POINT
Hypothetical
Is there a Confrontation problem
with introducing her original
statement to the police?
Is there a Hearsay problem with
introducing her first statement
to the police?
The Unavailable Witness

Sanchez v. State, 354 S.W.3d 476 (Tex. Crim. App. 2011)
 Hearing to determine the admissibility of an outcry (Article
38.072 ) provides a defendant with an inadequate
opportunity to cross-examine an outcry witness's credibility
 Admitting testimony from such a hearing at a trial when the
witness is unavailable violates the Sixth Amendment.

What is a prior opportunity to cross?

Pre-Trial

Bond Hearing

Protective Order

Disposition


Opportunity Waived
Opportunity for “Good” Cross
SATISFYING CRAWFORD
DAVIS V. WASHINGTON
Davis v. Washington
126 S.Ct. 2266 (2006)
2 Cases Combined.
Davis – 911 Call
Hammon – On
Scene Stmt.
Forced to decide “Testimonial
Justice Scalia
DAVIS V. HAMMOND
NOT TESTIMONIAL
Test
Not Testimonial
Circumstances Objectively
Indicate
Primary Purpose
Police assistance to meet
ongoing emergency.
TESTIMONIAL
Testimonial
Circumstances Objectively
Indicate
Primary Purpose
Establish past events relevant to
later criminal prosecution.
DAVIS V. HAMMOND
Primary Purpose - factors:
1) Actually happening or in
the past?
2) Ongoing emergency?
3) Questions needed to
resolve emergency?
4) Level of formality.
DAVIS V. WASHINGTON
Davis – 911 Call
Facts
Ms. McCottrey called 911,
described events as they were
happening and asked for police
help to meet an ongoing
emergency.
DAVIS V. WASHINGTON
911 Call - factors:
1) Statement made as events
happening
2) Ongoing emergency
3) Questions needed to
resolve emergency
4) Not formal.
DAVIS V. WASHINGTON
DAVIS V. WASHINGTON
Not all of 911 call was o.k.:
1) 911 call became testimonial;
2) Once operator gained info
necessary to resolve
emergency, remainder was
testimonial
HAMMON – ON SCENE
Hammon – On Scene
Facts
-Amy Hammon on porch when police
arrive. Everything fine now. No
Injuries Observed*.
-Police separate people but husband
tries to get to wife.
-Wife signs affidavit with details saying
husband punched her.
HAMMON – ON SCENE
On Scene - factors:
1) Statement about past events
2) No ongoing emergency-separated (trial
ct. findings?)
3) Questions about facts relevant to future
criminal prosecution
4) Victim signed affidavit.
The Lesson of Davis and Hammon

Similarities between cases
 Decided together, same issue, but different
outcomes

Analytical framework emerges:
 Temporal element
 To whom is the statement made? – LE or LE
agent
 Focus is on the objective purpose of the
statement or interview, not the declarant's
expectations.
Michigan v. Bryant
Michigan v. Bryant
Michigan v. Bryant
131 S.Ct. 1143 (2011)
Emergency – Important factor
in primary purpose
Ongoing threat –Broader than
initial victim
Perspective- Must consider
both declarant and questioner.
Justice Sotomayor
CONTEXT
ALL
Circumstances
Ex. Left scene, weapon
used, known history,
etc….
NOT TESTIMONIAL
STATEMENTS TO 3rd PARTIES
Crawford v. Washington
“An accuser who makes a
formal statement to
government officers bears
testimony in a sense that a
person who makes a casual
remark to an acquaintance
does not.”
Justice Scalia
PRACTICE POINT
Hypothetical
Boyfriend comes over to pick up 4 and 6yr old for
visitation. He and victim argue. He punches her,
threatens to kill her, rips phone out of the wall and
then leaves with kids.
Victim runs next door, frantic about kids, tells
neighbor what happened. Neighbor sees bruises.
Victim calls 911 frantic about kids and tells
dispatcher what happened.
Officers arrive 10 minutes later, she is still frantic
about kids, tells what happened, they put out
APB, find defendant with kids who are fine.
ANALYSIS
1.
2.
3.
4.
5.
6.
Relevant?
Hearsay? Exception?
Unavailable?
Testimonial/NonTestimonial?
Prior Opportunity to Cross?
Forfeiture?
REACTING TO THE PLAY
Leading Cases

Reynolds v. United States, (1879) in which the Court
held that The Constitution does not protect an
accused person from the legitimate consequences of
his acts. It grants him the privilege of being
confronted with the witnesses against him; but if he
voluntarily keeps the witnesses away, he cannot
insist on his privilege

Davis v Washington (2006) at 833 “one who obtains
the absence of a witness by wrongdoing forfeits the
constitutional right to confrontation.”
FORFEITURE-HISTORICAL
Reynolds v. U.S.
98 U.S. 145 (1879)
The Constitution does not protect
an individual against the legitimate
consequences of his own wrongful
acts. “[W]hen absent by his
procurement, their evidence is
supplied in some lawful way, he is
in no condition to assert that his
constitutional rights have been
Chief Justice Waite violated.”
Crawford
“The Rule of Forfeiture by
Wrondoing…extinguishes
Confrontation claims on essentially
equitable grounds.”
- Crawford, 541 U.S. at 62
GILES CASE
Giles v. California
128 S.Ct. 2678 (2008)
Giles killed his former
girlfriend to keep her from
cheating on him. State
sought to introduce her prior
statements to police.
Justice Scalia
Murder alone not enough to
show forfeiture.
Giles v. California
128 S. Ct. 2678 (2008)

Facts:
 Prosecution for murder
 Witness unavailable to testify about prior assaults
because she had been murdered

Holding:
 Forfeiture only occurs when defendant’s actions
show a specific intent to prevent witness from
testifying
 Started to resolve the question in Crawford
regarding what constitutes forfeiture – arose again
in Davis
INTENT
The proponent must show an
INTENT to procure the unavailability
of the witness.
Giles – Unanswered Questions

Case law not well developed – only 250
cases in the nation since Giles

Burden of proof – preponderance or clear
and convincing?
 Never squarely addressed, but
some dicta in Davis
Giles – Burden of Proof
“We take no position on the standards necessary to
demonstrate such forfeiture, but federal courts using
Federal Rule of Evidence 804(b)(6), which codifies the
forfeiture doctrine, have generally held the Government
to the preponderance-of-the-evidence standard, see,
e.g., United States v. Scott, 284 F.3d 758, 762 (C.A.7
2002).”
Davis, 547 U.S. at 833.

Interestingly, court was looking at the doctrine as
codified by the Federal Rules of Evidence

Most waivers of constitutional rights require proof by
clear and convincing evidence
Giles – Unanswered Questions

Level of action necessary to lead to forfeiture?
 Is abuse itself traumatic enough to argue
forfeiture?

Recognized in Giles
 Earlier abuse, or threats of abuse, intended to
dissuade the victim from resorting to outside
help would be highly relevant to this inquiry, as
would evidence of ongoing criminal
proceedings at which the victim would have
been expected to testify.”
Giles – Unanswered Questions

Type of proof necessary to show forfeiture?
 Often a pre-trial issue, rules of evidence do not
apply

“Moreover, if a hearing on forfeiture is required,
Edwards, for instance, observed that ‘hearsay
evidence, including the unavailable witness's out-ofcourt statements, may be considered.”
Davis, 547 U.S. at 833

Evidence available to prosecutors:
 Jail calls, letters, cell phone records
Forfeiture by Wrongdoing

What it is:

Client has right to have witness brought to court, but
can lose that right if:
 He/she engaged in wrongful conduct specifically
for the purpose of preventing the witness from
testifying
 Encourages others to do so
PRACTICE POINT
Forfeiture
What must you show?
1) Witness is unavailable – 804(a)
2) Act(s) by defendant
3) Intended to make witness unavailable
4) Act(s) made witness unavailable.
No need to prove the defendant
threatened the victim… Just that
the defendant intentionally
committed an act(s) to keep the
witness away or not tell the truth
GILES CASE
•Intended to dissuade victim from outside help
Domestic Abuse
•Includes conduct to prevent testimony to
police or cooperation
•Abuse ends in homicide
Homicide Only?
Factors
•May show crime expressed intent to isolate
victim and stop reporting
•Earlier abuse or threats intended to
dissuade victim from reporting
•Ongoing criminal proceedings where victim
expected to testify.
Quotes from Giles
“It would make no sense to suggest that the
oppressing defendant miraculously abandoned
the dynamics of abuse.” - Souter, Giles, at 508
“Earlier abuse, or threats of abuse, intended to
dissuade the victims from reporting to outside
help would be highly relevant.” – Giles, at 506
Justice Souter points the way on Domestic Violence
with prior incidents in his concurring opinion in Giles
v. California

“The element of intention would normally be satisfied
by the intent inferred on the part of the domestic abuser
in the classic abusive relationship, which is meant to
isolate the victim from outside help, including the aid of
law enforcement and the judicial process. If the
evidence for admissibility shows a continuing
relationship of this sort, it would make no sense to
suggest that the oppressing defendant miraculously
abandoned the dynamics of abuse the instant before
he killed his victim, say in a fit of anger.”

Or the instant before he contacted in violation of an
order of protection in an attempt to isolate the victim
from the judicial process and aid of law enforcement
Forfeiture
Context
Totality
Context and Totality
•Pre-Incident
•Incident
•Post-Incident
PRACTICE POINT
Forfeiture
Sources of Forfeiture Info:
Police reports
Friends/neighbors
Jail calls
Emails/text messages/letters
Court records
PRACTICE POINT
Considerations
Things to consider:
1.
2.
3.
4.
5.
6.
Is the victim unavailable?
Is there evidence of prior history of abuse?
Are there prior/current attempts to dissuade
cooperation?
Were there ongoing criminal proceedings where
victim was going to testify at time of threats?
Other Court Orders? Protective Orders, Violated
Orders
The Offense Itself
Common Evidence Produced
in Forfeiture Hearings
Prior Incidents of Domestic Violence (Patterns of
Abuse)
 Prior Court Orders, Protective Orders, Bond
Conditions
 Violations of Court Orders
 Jail Calls
 Letters, Text Messages, Cards
 Photos
 911 Calls
 Statements of Defendant/Witness at scene

CLOSING THOUGHTS
PROTECT THE RECORD
1) Trial court should make
necessary findings of fact
2) Remember original
purpose of particular
hearsay rule
th
6
AM DOES NOT APPLY
6th AMENDMENT DOES NOT APPLY
Confrontation does NOT apply:
1) Civil proceedings
2) Probation revocation (But..)
3) Sentencing hearings?
4) Restitution hearings
5) Suppression hearings
6th AMENDMENT DOES NOT APPLY
Confrontation does NOT apply:
6) Probable Cause hearings.
7)Hearsay offered by
defendant.
OTHER ISSUES
NOT OFFERED FOR TRUTH
Victim Fear-OK
(People v. Williams 2004)
Victim’s
statements of fear
admissible
Song - OK
(People v. Gatica 2004)
“Corrido” song
describing victim’s
death found in Def.
possession
admissible
OTHER ISSUES
IDENTITY OF PERPETRATOR
Admissibility
Under 803(4), the identity of the
perpetrator is not ordinarily admissible.
-Can be admissible if there is
MEDICAL reason for info.
-Must lay foundation.
IDENTITY OF PERPETRATOR
Admissibility
What foundation could be established
with doctor to show that the identity of
the perpetrator IS relevant to medical
diagnosis or treatment?
- Standard of care/forms
- Physician liability for safety
MEDICAL DIAGNOSIS
Nebraska-OK
(State v. Vaught 2004)
Child said
Defendant put his
finger in her
“peepee”
Ohio - OK
(State v. Stahl 2005)
Victim statement to
police –testimonial.
Statement to nurse
non-testimonial
Mass - OK
(Comm. v. DeOlivera 2006)
Child statement to doctor
OK even if police at hospital
OTHER ISSUES
EXPERT OPINION
Considerations:
1) Expert may rely on hearsay
2) No problem in pathologist relying on
autopsy report of another
3) Question whether expert may be
“conduit” of inadmissible hearsay.
OTHER ISSUES
DYING DECLARATIONS
Crawford v. Washington
Dying declarations are
“sui generis” and were
admitted at the time the
Constitution was
adopted.
Justice Scalia
OTHER ISSUES
ADMISSIONS
Wisconsin-OK
11th Cir. - OK
(State v. Manuel 2004)
(U.S. v. Valdes 2007)
Defendant’s
statements to his
girlfriend OK.
7th Cir. -OK
(U.S. v. Tolliver 2006)
Defendant’s taped
statements with
informant OK
Defendant’s
recorded calls with
informant OK even
without informant
testifying.
CRAWFORD NOT RETROACTIVE
Whorton v. Bockting127 S.Ct. 1173 (2007)
Crawford is not
retroactive on collateral
review.
Justice Alito
It does not apply to
convictions that were
already “final” as of
March 8, 2004.
STATES CAN DECIDE
Danforth v. Minnesota
128 S.Ct. 1029 (2008)
Justice Stevens
The states may give
broader retroactivity
to new rules of
criminal procedure
than that given by
federal courts.
LAB REPORTS
Melendez-Diaz v. Mass
129 S.Ct. 2527 (2009)
DRUG LAB
REPORT
TESTIMONIAL
Justice Scalia
MELENDEZ-DIAZ
Majority
Certified lab reports =
testimonial statements
There are no neutral
witnesses against accused
Notice and Demand – O.K?
Defendants must assert rts.
MELENDEZ-DIAZ
Minority – (Kennedy)
Concerned about autopsies
Concerned about availability
of witnesses
Analysts are neutral and not
at scene.
MELENDEZ-DIAZ
Note 2 Majority:
“ Other [cases cited by the dissent]
are irrelevant since they involved
medical reports created for treatment
purposes which would not be
testimonial under our decision today.”
Bullcoming v. New Mexico 2011
Bullcoming v. New Mexico 2011
Facts
DUI Lab test
Analyst issued certified report
Analyst put on unpaid leave
Supervisor testified about general
practices of lab/testing
Bullcoming v. New Mexico 2011
“A document created solely for an
evidentiary purpose…made in aid
of a police investigation, ranks as
testimonial.”
Bullcoming
Bullcoming v. New Mexico
131 S.Ct. 2705 (2011)
Analyst – Defendant had a 6th
Amendment right to cross analyst
Testing – Not simple. Subject to
human error at each step
Justice Ginsburg
Surrogate- Witness did not
observe test.
Questions
1. Tests used by experts – Xrays, MRI, Lab
See Melendez-Diaz, n.2
2. Autopsies- Doctor who did not perform
tests
3. Chain of custody- foundation
4. Certificate of No Record- room for
human error?
Witness Screened
Defendant Screened from Witness
Coy v. Iowa (1988)
Justice Scalia
Placing screen between
defendant and victim
violated the defendant’s
6th Amendment right to
confrontation.
Defendant Screened from Witness
Maryland v. Craig (1990)
Closed circuit testimony by
victim permissible where:
(1) Necessary to further
important public policy; and
(2) reliability assured.
Justice O’Connor
Who dissented?
Defendant Screened from Witness
Crawford v. Washington
124 S.Ct. 1354 (2004)
Confrontation is a specific
means of testing reliability.
Abandoned reliability as to
testimonial hearsay.
Justice Scalia
2-Way Video Not Enough
U.S. v. Bordeaux
(8th Cir. 2005)
Child’s testimony via 2-way
video was “virtual” and
violated 6th Amendment
because may have diluted
truth inducing effect. Thus,
admission of prior interview
violated Confrontation Clause
Judge Arnold
Forensic Interviews

Forensic interviews subject to both hearsay and
Confrontation objections
 Clearly testimonial, Coronado v. State, 351 S.W.3d
315 (CCA 2011)

Conflict with statutes that allow for admission of
videotaped statements or alternative procedures if
child witness is deemed unavailable
 Reasons: emotional, mental, competency
38.071 After Crawford

Rangel v. State, 250 S.W.3d 96 (Tex.Crim.App. 2008)
 Court admitted forensic video over Confrontation objection
 CCA held issue not preserved because defense counsel did
not avail himself of the interrogatory procedure

Unresolved questions after Rangel:
 What manner and means of cross will satisfy confrontation
right?
 What steps defendant must take to preserve error

The Answer: Coronado v. State, 351 S.W.3d 315
 38.071 held unconstitutional – interrogatories not sufficient
cross-examination
Coronado v. State, 351 S.W.3d 315
Court of Criminal Appeals (Cochran, J.)
“Although we agree that there must be balance
between a defendant's right to confrontation and
a societal need to protect fragile and traumatized
child victims, that balance cannot constitutionally
be struck by the method set out in Section 2 of
Article 38.071. On federal constitutional matters,
we are obliged to follow the dictates of the
United States Supreme Court regardless of our
own notions.”