Crawford
v. Washington, ___ U.S. ____, 124 S.Ct.
1354 (2004) (Argued
November 10, 2003; Decided March 8, 2004) Supreme
Court of the United States [reversing State
v. Crawford, 147 Wn.2d 424, 54 P.3d 656
(2002)]
In one of the
most important decisions of our highest court
in four decades, the Confrontation Clause
of the
Sixth Amendment of the United States
Constitution was "rediscovered" --- after hundreds
of state and federal courts had found unconstitutional
"exceptions" to its application in criminal cases
where a witness was either unavailable, reluctant
or otherwise prevented from giving testimony at
a criminal trial.
The significance
of the Court's holding in this landmark case will
reverberate far beyond the reversal of Michael
Crawford's conviction of felony assault charges
for a garden-variety stabbing. This case
sets the groundwork for knowledgeable criminal
defense attorneys handling DUI-DWI cases to challenge
prosecutorial "shortcuts" in offering many forms
of police-generated evidence at drunk driving
trials without bringing key witnesses to testify
and be exposed to cross-examination by the defense
attorney.
The Facts:
Michael Crawford's 'victim' was Kenneth Lee, a
man who had been accused by Crawford's wife, Sylvia,
of attempting to rape her. On August 5,
1999, Defendant Crawford and Sylvia set out to
locate Lee, to confront him about the attempted
sexual assault. When Lee was located, the
inevitable fight started, and Lee ended up stabbed
in his torso, and Michael Crawford had a cut hand.
Allegations of both Crawfords intimated
that Lee may have reached for his pocket or made
a furtive gesture as though reaching for a weapon
as the fight began. Michael Crawford claimed
"self-defense".
As is usually
done, the police interrogate the witnesses separately,
and both Sylvia and Michael gave recorded statements.
Neither of them had legal counsel when their statements
were given, but that was not the core issue of
this appeal. The alleged similarities of
some points of their statements, however, played
a part in this case, as will be discussed further
below.
The Legal
Issue Presented: Once the case came
up for trial, with Michael accused of attempted
murder and assault, his lawyer asserted an evidentiary
rule applicable in the state of Washington called
"marital privilege". This evidence rule
is intended to block the Prosecutor from calling
Sylvia as a witness in the criminal case, potentially
to incriminate Michael. The Prosecutor then
sought to obtain a ruling by the trial judge that
would allow the post-arrest, recorded statement
by Sylvia to be offered as evidence for the jury
to consider. The attorneys for Michael Crawford
objected to its admission, arguing that if the
statement was permitted into evidence, they could
not cross-examine "the statement" of Sylvia, and
that this use of a recorded, testimonial statement
given to police during a one-on-one, interview
at police headquarters DENIED Michael's constitutional
right of confrontation under the Sixth
Amendment of the United States Constitution.
Procedural
Posture of the Case: Michael
Crawford was tried for both attempted murder and
assault for the stabbing of Lee. The trial
court permitted the statement of Sylvia, and Sylvia
did not ever testify, pursuant to the marital
privilege. The jury found Michael Crawford
guilty of assault, but not
guilty of attempted murder. During
the closing argument of the Prosecutor, the statement
of Sylvia was a prominent part of the evidence
that was argued as being proof that Michael's
claim of self-defense was not legitimate, and
that Michael had gone looking for Lee, seeking
'retribution' for the alleged attack on Sylvia.
The first appeal
of the conviction went to the Washington Court
of Appeals, which REVERSED the conviction, finding
that the admission of Sylvia's statement improperly
denied Michael Crawford of the right of confrontation.
This Court carefully reviewed the circumstances
under which Sylvia's statement was obtained and
found the statement to have been unreliable.
The Prosecutor sought review by the Washington
Supreme Court of this ruling by Washington's intermediate
appellate court.
The Washington
Supreme Court unanimously OVERRULED
the Washington Court of Appeals and reinstated
Michael Crawford's conviction. Directly
opposite of what the Court of Appeals had found,
this Court found that Sylvia's statement, and
the circumstances under which it was obtained,
WAS reliable and trustworthy.
From these disparate
rulings, Michael Crawford sought review by the
court of last resort by asking the United States
Supreme Court to accept certiorari (accept
the case to correct a constitutional error).
Holding
by the U. S. Supreme Court: The
State's use of Sylvia's statement violated the
Confrontation Clause of the Sixth Amendment because,
where testimonial statements are at issue, the
only "test" of reliability of such statements
sufficient to satisfy constitutional mandates
under the plain language of the Sixth Amendment
is confrontation. Conviction REVERSED.
Analysis
of Key Points by the U. S. Supreme Court:
The Confrontation Clause's wording,
standing alone, does not resolve this case.
So, the Supreme Court turns to the Clause's historical
background. Centuries of prior cases from both
the United States and England were meticulously
analyzed in this amazing opinion. In the
final analysis, that history supports two principles.
(1) First, the principal evil at
which the Clause was directed was the civil-law
mode of criminal procedure, particularly the use
of ex parte examinations
as evidence against the accused. The Clause's
primary object is testimonial hearsay
evidence. Without doubt, interrogations
by law enforcement officers fall squarely within
that class. In English common law, the usual 'interrogators'
were often Justices of the Peace, the high court
noted. (2) Second, the Framers of our Constitution
would not have allowed admission of testimonial
statements of a witness who did not appear at
trial unless (a) he or she was unavailable to
testify and (b) the defendant (and
his legal counsel) had had a prior opportunity
for cross-examination. In Michael Crawford's
trial, NEITHER of these required conditions obtained,
and the ruling of the Washington Supreme Court
erroneously relied upon an exception to the normal
rule of exclusion of such 'untested' evidence
in allowing the introduction of Sylvia's recorded
statement.
Other
Significant Points in the Decision:
The high Court seemed to rediscover the Confrontation
Clause in this case. In this new opinion,
the former rules of analysis on "reliability"
used in Ohio v. Roberts, 448 U.S.
56 (1980) were disapproved and all but abandoned
as being 'unworkable'. In Crawford, the
Washington Supreme Court had stretched Ohio
v. Roberts as far as any court could,
all but emasculating the constitutional right
of confrontation in an effort to give the prosecution
the evidence they wanted to place in front of
the jury in this case.
Calling the
Sixth Amendment's right to confront your accuser
"a bedrock procedural guarantee"
that applies to BOTH federal and state prosecutions,
the Court scuttled the Ohio v. Roberts
method of "looking for exceptions" to the Confrontation
Clause by utilizing an "amorphous" procedure of
allowing a trial judge to determine the reliability
of a statement that was being offered against
a criminal defendant at trial. The Supreme
Court of the United States noted:
Although
the results of our decisions have generally been
faithful to the original meaning of the Confrontation
Clause, the same cannot be said of our rationales.
Roberts conditions the admissibility of
all hearsay evidence on whether it falls under
a "firmly rooted hearsay exception"
or bears "particularized guarantees
of trustworthiness." 448 U. S., at 66. This
test departs from the historical principles identified
above in two respects. First, it is too broad:
It applies the same mode of analysis whether or
not the hearsay consists of ex parte testimony.
This often results in close constitutional scrutiny
in cases that are far removed from the core concerns
of the Clause. At the same time, however, the
test is too narrow: It admits statements that
do consist of ex parte testimony upon a
mere finding of reliability. This malleable
standard often fails to protect against paradigmatic
confrontation violations.
[Emphasis added by Mr. Head]
The Court went
on to disapprove, in sweeping terms, the prior
practice (set in place by Ohio v. Roberts),
of letting a trial judge (who is often an ex-prosecutor
with leanings toward the prosecution side of the
case) to make a determination of "reliability",
thereby letting into evidence information that
the Confrontation Clause work otherwise exclude.
The court said:
Where
testimonial statements are involved, we do not
think the Framers meant to leave the Sixth Amendment's
protection to the vagaries of the rules of evidence,
much less to amorphous notions of "reliability."
Certainly none of the authorities discussed above
acknowledges any general reliability exception
to the common-law rule. Admitting statements
deemed reliable by a judge is fundamentally at
odds with the right of confrontation. To be
sure, the Clause's ultimate goal is to ensure
reliability of evidence, but it is a procedural
rather than a substantive guarantee. It commands,
not that evidence be reliable, but that reliability
be assessed in a particular manner: by testing
in the crucible of cross-examination. The
Clause thus 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. Cf. 3
Blackstone, Commentaries, at 373 ("This open
examination of witnesses . . . is much more conducive
to the clearing up of truth"); M. Hale, History
and Analysis of the Common Law of England 258
(1713) (adversarial testing "beats and bolts
out the Truth much better").
The
Roberts test allows a jury to hear evidence,
untested by the adversary process, based on a
mere judicial determination of reliability. It
thus replaces the constitutionally prescribed
method of assessing reliability with a wholly
foreign one. In this respect, it is very different
from exceptions to the Confrontation Clause that
make no claim to be a surrogate means of assessing
reliability. For example, the rule of forfeiture
by wrongdoing (which we accept) extinguishes confrontation
claims on essentially equitable grounds; it does
not purport to be an alternative means of determining
reliability. See Reynolds v. United
States, 98 U. S. 145, 158-159 (1879).
[Emphasis added by Mr. Head]
One other part
of the U. S. Supreme Court's opinion is worthy
of mentioning because it virtually scoffs at the
judicial blindness utilized by the Washington
Supreme Court in trying to justify its support
of the trial judge's ruling that Sylvia's recorded
statement was 'reliable' (something the Washington
Court of Appeals clearly did NOT
find). The trial court had determined that
reliability was assured because Sylvia was
being questioned by law enforcement officers who
were NEUTRAL to her and "not someone who
would be inclined to advance her interests and
shade her version of the truth favorably toward
the defendant (Michael Crawford)". To this
ludicrous and laughable ruling, the high Court
observed:
The Framers (of the U.S. Constitution) would
be astounded to learn that ex parte
testimony (i.e., statements that are not subject
to cross-examination) could be admitted against
a criminal defendant because it was elicited by
"neutral" government officers.
[Parenthetical references and emphasis added by
Mr. Head]
Any experienced
criminal defense attorney knows that the police
are typically anything but neutral
in their investigations, often formulating hasty
conclusions based upon shoddy investigation, guesswork,
hunches and sometimes outright false evidence.
Recent revelations in Oklahoma and other states
have uncovered actual cover-ups by state crime
lab employees of false evidence that sent wrongly
convicted citizens to their executions.
The sanctimonious and self-serving judicial finding
of reliability by the Crawford trial
judge highlights the critical importance of this
landmark decision.
Mr. Head's
Commentary: The U. S. Supreme
Court stopped short of extending its ruling beyond
"testimonial" evidence to other possible statutory
exceptions to the Confrontation Clause.
In basically saying, "we'll reserve those issues
for another day", the high Court left the door
open for state and federal prosecutors to "guess"
what forms of ex parte or hearsay evidence
MIGHT be admissible without affording the defendant
in a criminal case the right of confrontation.
In many states, "shortcut" methods of admitting
either breath test results or blood test results
will now be subject to "confrontation" attacks.
For the most part, these 'rules' were statutory
enactments requested by crime labs and state prosecutors
that would prevent the scientists who tested evidence
or checked machines for calibration from having
to appear in court in each contested case for
the purpose of verifying that the device was PROPERLY
operated and that it was functioning correctly.
It was also a COST-CUTTING measure, as state budgets
were shrunk, because adding new scientists to
be available for testimony in court left fewer
dollars to operate their budgets.
The Crawford
opinion reviews many similar forms of affidavits
and ex parte documents and statements that
were approved to be admitted under English common
law. Present DUI-DWI prosecution practice
across the United States has state laws in place
to facilitate the use of such evidence WITHOUT
THE NECESSITY of bringing into court the "person"
who created the statement or report that is being
offered as PROOF of some critical fact against
the accused. In 'per se' cases (where the
only necessary evidence is the test results being
above the legal limit), the practice of permitting
forms certifying that a particular breath machine
was tested and standardized by some out-of-court
technician is a clear denial of Sixth Amendment
rights. This is a clear denial of the right
of confrontation. With proper objection
to the use of this evidence by competent trial
counsel, these cases should offer an excellent
chance of reversal of any convictions, based upon
the stunning new case of Crawford v. Washington.
CLICK HERE to read more on the landmark Crawford
v. Washington case.
Mr. Head would like to give special thanks to
Jeffrey L. Fisher, of Seattle, Washington, co-counsel
for Michael Crawford, for providing copies of
the relevant briefs in this Landmark decision.
