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.”