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.
