Emerging Issues in Confrontation Litigation: A Supplement to Crawford v. Washington: Confrontation One Year Later

Transcription

1 Emerging Issues in Cnfrntatin Litigatin: A Supplement t Crawfrd v. Washingtn: Cnfrntatin One Year Later Jessica Smith March 2007

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3 Emerging Issues in Cnfrntatin Litigatin: A Supplement t Crawfrd v. Washingtn: Cnfrntatin One Year Later Jessica Smith March 2007

4 Schl f Gvernment, UNC Chapel Hill The Schl f Gvernment at the University f Nrth Carlina at Chapel Hill wrks t imprve the lives f Nrth Carlinians by engaging in practical schlarship that helps public fficials and citizens understand and strengthen state and lcal gvernment. The cre cmpnents f the Schl are the Institute f Gvernment, established in 1931 t prvide educatinal, advisry, and research services fr state and lcal gvernments, and the tw-year Master f Public Administratin Prgram, which prepares graduates fr leadership careers in public service. The Schl als spnsrs centers fcused n infrmatin technlgy, envirnmental finance, and civic educatin fr yuth. The Institute f Gvernment is the largest university-based lcal gvernment training, advisry, and research rganizatin in the United States, ffering up t 200 classes, seminars, schls, and specialized cnferences fr mre than 12,000 public fficials each year. In additin, faculty members annually publish apprximately fifty bks, peridicals, and ther reference wrks related t state and lcal gvernment. Each day that the General Assembly is in sessin, the Institute s Daily Bulletin, available in electrnic frmat, reprts n the day s activities fr members f the legislature and thers wh need t fllw the curse f legislatin. Operating supprt fr the Schl f Gvernment s prgrams and activities cmes frm many surces, including state apprpriatins, lcal gvernment membership dues, private cntributins, publicatin sales, curse fees, and service cntracts. Visit r call fr mre infrmatin n the Schl s curses, publicatins, prgrams, and services. Michael R. Smith, Dean Thmas H. Thrnburg, Senir Assciate Dean Frayda S. Bluestein, Assciate Dean fr Prgrams Ann Cary Simpsn, Assciate Dean fr Develpment and Cmmunicatins Bradley G. Vlk, Assciate Dean fr Administratin Faculty Gregry S. Allisn Stephen Allred (n leave) David N. Ammns A. Fleming Bell, II Maureen M. Berner Mark F. Btts Jan G. Brannn Mlly C. Brad Mary Maureen Brwn Shea Riggsbee Denning James C. Drennan Richard D. Ducker Rbert L. Farb Jseph S. Ferrell Miltn S. Heath Jr. Cheryl Daniels Hwell Jseph E. Hunt Willw S. Jacbsn Rbert P. Jyce Diane M. Juffras David M. Lawrence Dna G. Lewandwski Janet Masn Laurie L. Mesibv Kara A. Millnzi Nrma W. Mills (n leave) Jill D. Mre Jnathan Q. Mrgan Ricard S. Mrse David W. Owens William C. Rivenbark Dale J. Renigk Jhn Rubin Jhn L. Saxn Shannn H. Schelin Jessica Smith Carl W. Stenberg III Jhn B. Stephens Charles A. Szypszak Vaughn Upshaw A. Jhn Vgt Aimee N. Wall W. Mark C. Weidemaier Richard B. Whisnant Grdn P. Whitaker 2007 Schl f Gvernment The University f Nrth Carlina at Chapel Hill This publicatin is printed n permanent, acid-free paper in cmpliance with the Nrth Carlina General Statutes. Printed in the United States f America ISBN Printed n recycled paper

5 EMERGING ISSUES IN CONFRONTATION LITIGATION: A SUPPLEMENT TO CRAWFORD V. WASHINGTON: CONFRONTATION ONE YEAR LATER Jessica Smith* In Crawfrd v. Washingtn, 1 the United States Supreme Curt wrked a sea change in cnfrntatin clause analysis, verruling the Ohi v. Rberts 2 and adpting a new cnfrntatin clause test. Under the Rberts cnfrntatin clause test, admissibility f hearsay evidence had turned n whether the evidence fell within a firmly rted hearsay exceptin r bre particularized guarantees f trustwrthiness. Rejecting that apprach, Crawfrd held that testimnial statements by witnesses wh d nt appear at trial may nt be admitted unless the witness is unavailable t testify and there has been a prir pprtunity fr crss examinatin. In part because the Curt declined t cmprehensively define the perative term testimnial, Crawfrd resulted in a myriad f lwer curt judicial decisins, ften reaching diverse cnclusins n what is and is nt admissible under the new analysis. 3 My mngraph, Crawfrd v. Washingtn: Cnfrntatin One Year Later (Schl f Gvernment, University f Nrth Carlina at Chapel Hill, April 2005) [hereinafter Cnfrntatin One Year Later] (n-line at: discusses Crawfrd in mre detail and cllects many f the published cases decided in the year after it was * Albert and Gladys Hall Cates Assciate Prfessr fr Teaching Excellence, Schl f Gvernment, University f Nrth Carlina at Chapel Hill. Prfessr Smith may be reached at: smithj@sg.unc.edu U.S. 36 (2004) U.S. 56 (1980), verruled by Crawfrd v. Washingtn, 541 U.S. 36 (2004). 3. This result was predicted by then-chief Justice Rehnquist. See Crawfrd, 448 U.S. at 60, (Rehnquist, C.J., cncurring).

6 decided. This paper supplements that mngraph and is designed as a reference fr Nrth Carlina judges and litigants. Sectin I begins with a discussin f Davis v. Washingtn, 4 the United States Supreme Curt s first decisin interpreting Crawfrd. Sectin II discusses a number f key issues that remain pen even after Davis. Finally, Sectin III summarizes significant Crawfrd cases decided since publicatin f Cnfrntatin One Year Later, and highlights hw Davis might impact the cnfrntatin clause analysis with regard t particular categries f evidence. I. Davis v. Washingtn A. Facts Davis was the Curt s first pprtunity t apply its new Crawfrd test. The decisin invlved tw cases: Davis v. Washingtn and Hammn v. Indiana. The fact that bth cases invlved dmestic vilence is n cincidence. Because victims ften fail t testify in dmestic vilence cases, this categry f cases alng with child abuse cases where the same prblem ccurs was dramatically impacted by the Crawfrd decisin. 5 Davis invlved a cnfrntatin clause bjectin t statements made by a victim during a 911 call. During the call, the fllwing cnversatin ccurred: 911 Operatr: Hell. Cmplainant: Hell. 911 Operatr: What s ging n? Cmplainant: He s here jumpin n me again. 911 Operatr: Okay. Listen t me carefully. Are yu in a huse r an apartment? Cmplainant: I m in a huse. 911 Operatr: Are there any weapns? Cmplainant: N. He s usin his fists. 911 Operatr: Okay. Has he been drinking? Cmplainant: N. 911 Operatr: Okay, sweetie. I ve gt help started. Stay n the line with me, kay? Cmplainant: I m n the line S. Ct (2006). 5. See id. at (acknwledging that dmestic vilence cases are ntriusly susceptible t intimidatin r cercin f the witness t ensure that she des nt testify at trial ). 911 Operatr: Listen t me carefully. D yu knw his last name? Cmplainant: It s Davis. 911 Operatr: Davis? Okay, what s his first name? Cmplainant: Adrian 911 Operatr: What is it? Cmplainant: Adrian. 911 Operatr: Adrian? Cmplainant: Yeah. 911 Operatr: Okay. What s his middle initial? Cmplainant: Martell. He s runnin nw. 6 The cnversatin cntinued and the peratr learned that Davis had run ut after hitting the victim, and was leaving in a vehicle. When the victim started talking, the peratr cut her ff, saying, Stp talking and answer my questins. The peratr gathered mre infrmatin abut Davis, including his birthday and why he had cme t the huse. The victim described the assault and the peratr tld her that the plice wuld first try t find Davis and then cme t her huse. The plice arrived within fur minutes and saw that the victim was shaken, had fresh injuries, and was frantically gathering her belngings and children t leave the residence. The State charged Davis with felny vilatin f a dmestic n-cntact rder. At trial, the victim did nt testify. The State s nly witnesses were the plice fficers wh respnded t the scene. Over Davis s cnfrntatin clause bjectin, the trial curt admitted a recrding f the 911 call. Davis was cnvicted, and he appealed. On appeal, the cnfrntatin clause issue was limited t that prtin f the 911 call in which the victim identified Davis as the perpetratr. 7 Hammn invlved a plice respnse t a reprted disturbance at the hme f Hershel and Amy Hammn. The plice fund Amy alne n the frnt prch, appearing smewhat frightened; hwever, Amy tld the fficers that nthing was the matter. After receiving Amy s permissin t enter the hme, ne fficer saw a flaming gas heating unit and pieces f glass in frnt f the heater. Hershel, wh was in the kitchen, tld the plice that he and Amy had argued but that everything was fine and the argument never became physical. An fficer again asked Amy what had happened. Hershel made several attempts t intervene in this cnversatin, became angry when an fficer stpped him frm ding s, and had t be frcibly prevented frm interfering. 8 Amy tld the 6. Id. at Id. at Id. at

7 fficer that Herschel gt angry with her, brke a number f husehld items, including the heater, threw her dwn int the glass f the heater, and punched her twice in the chest. The fficer then asked Amy t fill ut and sign a battery affidavit, n which she recunted what she had tld the fficer. The State charged Hershel with dmestic battery and with vilating his prbatin. Amy did nt appear at trial. Instead, the State called the fficer wh had questined her, and asked him t recunt what Amy tld him and t authenticate the affidavit. Herschel was fund guilty at trial and appealed. The Indiana Supreme Curt held that the affidavit was testimnial but that Amy s ral statements t the fficers were nntestimnial. When the case came befre the United States Supreme Curt, at issue was the testimnial nature f Amy s ral statements t the fficer. B. The Curt s Analysis and Hlding The Davis Curt began by nting that in Crawfrd, it held that statements taken by the plice in the curse f interrgatins qualify under any definitin f the term testimnial. It als nted that the facts f Crawfrd made it relatively easy t cnclude that the statements were taken in the curse f plice interrgatin because in that case, the statements were made and recrded while the declarant was in plice custdy and after Miranda warnings had been given. Davis and Hammn, hwever, were nt as clear and required the Curt t determine mre precisely which plice interrgatins prduce testimny. 9 Declining t craft a cmprehensive classificatin f all statements in respnse t plice interrgatin, the Curt stated: [I]t suffices t decide the present cases t hld as fllws: Statements are nntestimnial when made in the curse f plice interrgatin under circumstances bjectively indicating that the primary purpse f the interrgatin is t enable plice assistance t meet an nging emergency. They are testimnial when the circumstances bjectively indicate that there is n such nging emergency, and that the primary purpse f the interrgatin is t establish r prve past events ptentially relevant t later criminal prsecutin Id. at Id. at Applying this standard t the Davis case, the Curt held that the victim s statements during the 911 call were nntestimnial. The Curt first nted that the victim was speaking abut events as they were actually happening, nt describing past events. 11 Secnd, the Curt cncluded, that any reasnable listener wuld recgnize that the victim was facing an nging emergency. 12 Acknwledging that a persn might call 911 t reprt a crime when there is n immediate danger, the Curt stated that here, the victim s call was plainly a call fr help against bna fide physical threat. Third, the Curt stated, the nature f what was asked and answered... was such that the elicited statements were necessary t be able t reslve the present emergency, rather than simply t learn (as in Crawfrd) what had happened in the past. 13 The Curt expressly nted this als was true f the peratr s effrt t establish the identity f the perpetratr, because the respnding fficers wuld need t knw whether they might encunter a vilent feln. 14 Furth, the Curt fund a striking difference in the level f frmality between the interview in Crawfrd and that in Davis. 15 The Curt nted that in Crawfrd, the declarant respnded calmly, at the statin huse, t a series f questins, with the interrgating fficer tape-recrding and making ntes f her answers. In Davis, by cntrast, the victim s frantic answers were prvided ver the phne, in an envirnment that was nt tranquil r safe. It then held: [T]he circumstances f [the victim s] interrgatin bjectively indicate its primary purpse was t enable plice assistance t meet an nging emergency. She simply was nt acting as a witness; she was nt testifying. What she said was nt a weaker substitute fr live testimny at trial.... N witness ges int curt t prclaim an emergency and seek help Id. at 2276 (emphasis in riginal). This, it nted, cntrasted t the declarant s statements in Crawfrd, which were made hurs after the events she described had ccurred. Id. 12. Id. Again, the Curt cntrasted the case befre it with the facts f Crawfrd. Id. 13. Id. (emphasis in riginal). 14. Id. 15. Id. at Id. at 2277 (emphasis in riginal) (citatins mitted). 3

8 The Curt went n t nte that a cnversatin that begins as an interrgatin t determine the need fr emergency assistance can evlve int testimnial statements. 17 Cnsidering the case befre it, the Curt cncluded that the emergency appeared t have ended when Davis left the premises. At this pint, the peratr tld the victim t be quiet, and prceeded t pse a battery f questins. It culd readily be maintained the Curt stated, that frm this pint n, the victim s statements were testimnial. 18 As nted abve, hwever, the nly issue befre the Curt was the victim s early statements identifying Davis as her assailant. Thus, the Curt was nt required t determine whether the victim s subsequent statements were testimnial. Turning t Hammn, the Curt cncluded that Amy s statements t the plice were nt much different frm thse fund t be testimnial in Crawfrd. 19 The Curt fund it entirely clear that the interrgatin was part f an investigatin int pssible criminal past cnduct. 20 It nted that there was n nging emergency, the interrgating fficer heard n arguments and saw n vilence, and Amy had tld the fficers everything was fine when they arrived at the scene. The challenged statements were btained during a secnd questining, in which the fficer was nt seeking t determine what is happening, but rather what happened. 21 The Curt cncluded: Objectively viewed, the primary, if nt indeed the sle, purpse f the interrgatin was t investigate a pssible crime which is, f curse, precisely what the fficer shuld have dne. 22 Finally, the Curt fund the lack f frmality assciated with Amy s statement at least as cmpared t the statement in Crawfrd 23 nt t be dispsitive. The Curt fund it frmal enugh that the interrgatin was dne in a separate rm, away frm the alleged perpetratr, with the fficer taking Amy s replies fr use in the investigatin. 24 In the end, it fund the striking resemblance that the statements in Crawfrd bre t civil-law ex parte examinatins, shared by Amy s statement. It nted that bth declarants were actively separated frm the alleged perpetratr, bth statements deliberately 17. Id. 18. Id. 19. Id. at Id. 21. Id. 22. Id. (emphasis in riginal). 23. In Crawfrd, the interrgatin fllwed a Miranda warning, was tape-recrded, and tk place at a statin huse. 24. Davis, 126 S. Ct. at recunted, in respnse t questining, hw ptentially criminal past events began and prgressed, and bth tk place sme time after the events in questin ended. It cncluded: Such statements under fficial interrgatin are an bvius substitute fr live testimny, because they d precisely what a witness des n direct examinatin; they are inherently testimnial. 25 The central hlding f Davis is that when determining whether statements prduced by plice interrgatin are testimnial, the key inquiry is: What is the primary purpse f the interrgatin, assessed under an bjective standard? If the primary purpse f the interrgatin is t enable the plice t meet an nging emergency, the statements are nntestimnial. If the primary purpse is t establish r prve past events ptentially relevant t later criminal prsecutin, they are testimnial. Additinally, Davis rejected the ntin that testimnial statements are limited t statements f the mst frmal srt, such as prir curt prceedings r frmal depsitins. 26 The Curt fund it incnceivable that the cnfrntatin clause wuld be interpreted in a way that its prtectins culd be evaded simply by having a nte-taking pliceman recite the unswrn hearsay statement f the declarant, instead f having the declarant sign a depsitin. 27 Cncluding that frmality is indeed essential t testimnial utterance, 28 it is enugh, the Curt indicated, that a slemn declaratin is made t establish r prve past facts. 29 In the Curt s view, such slemnity always attaches t statements t the plice, because making a false statement t an fficer is a criminal ffense. 30 Additinally, it stated that indicatrs f frmality such as the fact that the statement is tape-recrded, given after Miranda warnings, r reduced t writing and signed by the declarant can help t assess the primary purpse f the questining Id. (emphasis in riginal). 26. Id. at Id. at 2276 (emphasis in riginal). 28. Id. at 2278 n Id. at Id. at 2278 n.5 ( It imprts sufficient frmality, in ur view, that lies t such fficers are criminal ffenses ); id. at 2276 ( The slemnity f even an ral declaratin f relevant past fact t an investigating fficer is well enugh established by the severe cnsequences that can attend a deliberate falsehd ). 31. Id. at 2278 (nting that the frmality assciated with the statement in Crawfrd certainly strengthened the statements testimnial aspect made it mre bjectively 4

9 Davis als rejected the ntin that the testimnial/nntestimnial determinatin turns n whether the statements are in respnse t initial inquiries at the scene by fficer. 32 In the Curt s view, respnses t initial inquiries might be testimnial and they might nt, depending n the circumstances bjectively viewed and evaluated under the inquiry stated abve. 33 Davis als calls int questin a pst-lewis Curt f Appeals case dealing with a murder victim s statements t a prbatin fficer and t fficers wh were investigating the victim s earlier cmplaints that the defendant was frging checks and fraudulently using her credit cards. That decisin held, withut analysis, that the statements at issue were nntestimnial. 36 C. Implicatins fr Nrth Carlina Pst- Crawfrd Case Law Befre Davis, the mst significant Crawfrd case t have been decided in Nrth Carlina was the state Supreme Curt s decisin in State v. Lewis. 34 Lewis invlved n-the-scene questining f a victim by a patrl fficer, as well as later questining f the victim at a hspital by an investigating detective, including a request t identify the defendant frm a pht lineup. Lewis held that the n-the-scene questining by the patrl fficer was nntestimnial and that the questining by the detective at the hspital was testimnial. Hwever, the United States Supreme Curt granted certirari in Lewis and vacated and remanded in light f Davis. Althugh the Nrth Carlina Supreme Curt has yet t issue a decisin n remand, Davis clearly requires the Nrth Carlina Supreme Curt t revisit its analysis. The Lewis Curt had held that the key factr in determining whether statements t plice fficers are testimnial is whether structured plice questining ccurred; Davis, f curse, requires an inquiry int whether the primary purpse f the interrgatin is t deal with an nging emergency r establish a past fact. 35 apparent, that is, that the purpse f the exercise was t nail dwn the truth abut past criminal events ). 32. Id. at Id N.C. 1 (2005), cert. granted and judgment vacated by, 126 S. Ct (2006). 35. Nrth Carlina cases dealing with victim s statements t the plice nt included in Cnfrntatin One Year Later and decided befre Lewis include: State v. Mre, 173 N.C. App. 494 (2005) (prir rape victim s identificatin f defendant as her assailant during phtgraphic lineup was testimnial); State v. Champin, 171 N.C. App. 716 (2005) (victim s statements t plice n the day f the attack were testimnial); State v. Allen, 171 N.C. App. 71 (2005) (statements f witness and victim t fficer 20 minutes after incident were testimnial; witness s identificatin f a perpetratr frm a II. Open Issues Davis was the Curt s first case refining the Crawfrd test. Hwever, Davis, like Crawfrd, expressly declined t prduce an exhaustive classificatin f all cnceivable statements r even all cnceivable statements in respnse t plice interrgatin. 37 Thus, even after Davis, many issues remain unreslved. Additinally, there are a number f questins that were nt at issue in Davis and thus were nt reslved by that case. In this sectin, I highlight sme f the mst significant pen issues under the new cnfrntatin clause analysis. What cnstitutes an emergency and when des an emergency end? In Davis, the Curt stated in dicta that the emergency ended when the victim tld the peratr that Davis had left the residence. In Hammn, it cncluded that when the fficers arrived at the residence, there was n nging emergency, nting that the fficers did nt hear any arguments r crashing r see anyne thrw r break anything, and that Amy initially tld the fficers everything was fine. The Curt did nt think it significant that Herschel tried t intervene during the plice questining f Amy, and had t be frcibly prevented frm interfering, 38 r that unlike Davis, Herschel had nt left the scene. The Curt did nt spell ut ther factrs that might be relevant t the determinatin whether an emergency is nging, nr did it suggest hw the factrs it did cnsider phtgraphic lineup, made ne day after the crime, was testimnial); State v. Suttn, 169 N.C. App. 90 (2005) (victim s statements t fficers were testimnial; plice had apprached the victim and questined her, her statement was neither spntaneus nr unslicited, it was the secnd statement given t plice that night, and an bjective witness wuld reasnably believe that the statement wuld be available fr use at trial). 36. State v. Scanln, N.C. App., 626 S.E.2d 770 n.1 (Mar. 7, 2006). 37. Davis, 126 S. Ct. at Id. at

10 shuld be weighed. As such, it appears that the inquiry will be fact- and case-dependent. Factrs that might be relevant t the analysis are listed belw. Hwever, which f these factrs shuld be given pririty and hw they shuld be balanced remains unclear, as demnstrated by their applicatin in the cases discussed in Part III. 39 Factrs supprting the cnclusin that an emergency was nging: The perpetratr remains at the scene and is nt in law enfrcement custdy The perpetratr is at large and presents a present r cntinuing threat Physical vilence is ccurring The lcatin is disrderly The lcatin is unsecure Medical attentin is needed r the need fr it is nt determined The victim r thers are in danger The questining ccurs clse in time t the event The victim r thers call fr assistance The victim r thers are agitated N fficers are at the scene Factrs supprting the cnclusin that an emergency ended r did nt exist: The perpetratr has fled and is unlikely t return The perpetratr is in law enfrcement custdy N physical vilence is ccurring The lcatin is calm The lcatin is secure N medical attentin is needed The victim and thers are safe There is a significant lapse f time between the event and the questining N call fr assistance is made The victim r thers are calm Officers are at the scene Hw shuld a trial judge determine the primary purpse f a plice interrgatin? In a dissent in Hammn, Justice Thmas characterized the primary purpse test as an unpredictable ne that will be difficult fr trial curts t apply. 40 Nting the mixed mtives fficers might 39. In particular, see pages (discussing victims statements t plice fficers and 911 calls). 40. Davis, 126 S. Ct. at 2280 (Thmas J., dissenting). have when engaged in questining, he argued that [a]ssigning... primacy requires cnstructing a hierarchy f purpse that will rarely be present and nt reliably discernible. It will inevitably be, quite simply, an exercise in fictin. 41 Amng the purpses fficers might have when cnducting an interrgatin culd be: Prtecting victims Prtecting bystanders and the public Prtecting themselves Determining whether a crime ccurred Determining if medical assistance is required and securing such assistance Gathering evidence f a crime Identifying the perpetratr Apprehending the perpetratr As Justice Thmas indicated, parsing ut which purpse was primary will be anther difficult task fr which the Curt gave little guidance. Hw is the primary purpse test t be recnciled with the Curt s emphasis n the declarant s statements? Davis set ut a primary purpse test that fcuses n the bjectively determined purpse f the interrgatin. Hwever, Davis als stated that it is in the final analysis the declarant s statements, nt the interrgatr s questins that the Cnfrntatin Clause requires us t evaluate. 42 This language suggests that the declarant s intent is relevant. Hw this language can be recnciled with the primary purpse test remains t be determined. Fr example, hw wuld a trial judge decide a case in which he r she determines that an bjective interrgatr wuld cnclude that n emergency existed but it is uncntrverted that when the declarant made the statements he r she actually believed himself r herself t be in imminent danger? Wh are agents f the plice fr purpses f plice interrgatin? Davis assumed, but did nt decide, that the acts f the 911 peratr were acts f the plice. 43 Thus, it did nt prvide guidance n hw a trial judge shuld determine whether ther individuals shuld be cnsidered agents f the plice. This issue already has arisen in pst-davis cases frm ther jurisdictins with regard t child frensic 41. Id. at Id. at 2274 n Id. at 2274 n.2. 6

11 interviewers and investigatrs 44 and medical persnnel. 45 Factrs that pst-davis decisins have cited when determining that particular actrs were acting as agents f the plice include that fllwing: the plice directed the victim t the interviewer r requested r arranged fr the interview; 46 the interview was a frensic interview; 47 a law enfrcement fficer bserved the interview frm anther rm; 48 a law enfrcement fficer videtaped the interview; 49 the persn cnsulted with a prsecutin investigatr befre the interview; 50 the persn cnsulted with a law enfrcement fficer during the interview; See, e.g., State v. Blue, 717 N.W.2d 558, 564 (N.D. 2006) (hlding, in part, that like the 911 peratr in Davis, we cnclude the frensic interviewer in this case was either acting in cncert with r as an agent f the gvernment ). 45. See, e.g., Medina v. State, 143 P.3d 471 (Nev. 2006) (SANE nurse was a plice perative ), petitin fr cert. filed (Nv 17, 2006); State v. Hper, P.3d, 2006 WL (Idah App., Aug. 11, 2006) (Sexual Trauma Abuse Respnse nurse was acting in cncert with r at the behest f the plice ), review granted (Jan. 18, 2007). 46. See Hper, P.3d, 2006 WL (plice directed victim s mther t take child victim t Sexual Trauma Abuse Respnse Center, where child was interviewed); Peple v. Sharp, P.3d, 2006 WL (Cl App. Dec. 14, 2006) (plice detective arranged fr interview); State v. Krasky, 721 N.W.2d 916 (Minn. Ct. App. 2006) (interview was at the request f a child prtectin wrker and investigating fficer), review granted (Dec. 20, 2006). 47. See State v. Justus, 205 S.W.3d 872 (M. 2006) (child was referred t interviewer fr a frensic interview ); Hper, P.3d, 2006 WL (interviewing nurse described herself as a frensic interviewer and sexual assault nurse examiner ); Medina, 143 P.3d 471 (nurse testified that she was a frensics nurse ). 48. See Blue, 717 N.W. 2d 558; Hper, P.3d, 2006 WL ; Sharp, P.3d, 2006 WL See State v. Pitt, 147 P.3d 940 (Or. App. 2006). 50. See State v. Buda, 912 A.2d 735 (N.J. Super. 2006). the persn asked questins at the behest f a law enfrcement fficer; 52 the purpse f the interview was t further a criminal investigatin; 53 the lack f a nn-law enfrcement purpse t the interview; 54 and the fact that law enfrcement was prvided with a videtape f the interview after the interview cncluded. 55 Hw much frmality is required in rder fr the statement t be testimnial? As nted abve, Davis cncluded that althugh the cnfrntatin clause s prtectins cvered mre than statements f the mst frmal srt, frmality is indeed essential t testimnial utterance. 56 And as nted, it fund that statements t the plice always have the requisite level f frmality because criminal cnsequence attach t false statements t fficers. These cnclusins prvide little guidance as t the level f frmality that will be required f statements given utside f the cntext f plice interrgatins. 51. See Hper, P.3d, 2006 WL ; Sharp, P.3d, 2006 WL See Hper, P.3d, 2006 WL ; Sharp, P.3d, 2006 WL See Pitt, 147 P.3d 940 (interview was cnducted fr the express purpse f furthering a plice investigatin); Sharp, P.3d, 2006 WL ; State v. Krasky, 721 N.W.2d 916 (Minn. Ct. App. 2006) (child prtectin wrker and investigating fficer determined that the interview was the best way t prceed with the investigatin ); see als Buda, 912 A.2d 735 (Department f Yuth and Family Services wrker was called t the hspital t cnduct and investigatin because the examining physician suspected wrngding). 54. See Hper, P.3d, 2006 WL (curt ntes that there was n evidence that the interview had a diagnstic, therapeutic, r medical purpse); Krasky, 721 N.W.2d 916 (curt ntes that there was n identified medical reasn fr the interview). 55. See State v. Blue, 717 N.W. 2d 558 (N.D. 2006); Krasky, 721 N.W.2d Davis, 126 S. Ct. at 2278 n.5. 7

12 Shuld the primary purpse test be applied t questining by individuals ther than the plice r their agents? Davis expressly stated that its hlding made it unnecessary t cnsider whether and when statements made t smene ther than law enfrcement persnnel r their agents are testimnial. 57 Thus, after Davis, it is nt clear whether the primary purpse test applies, fr example, t a parent s questining f a child, when the parent suspects the child has been the victim f child abuse. Under mst pst-crawfrd cases, cnversatins between private individuals have been held t be nntestimnial. 58 Cnceivably, hwever, the parent culd have a primary purpse f establishing past facts e.g., establishing what happened fr the purpse f pursuing criminal prsecutin f the perpetratr. 59 If the primary purpse test applies in this cntext, the statements in the example given wuld be testimnial. It is wrth nting that in Davis, the Curt discussed an early English case, King v. Brasier, 60 in which a yung rape victim tld her mther, immediately upn cming hme, the circumstances f her injury. The defendant argued that this case supprted his assertin that the 911 call was testimnial. The Curt rejected this argument stating: The case wuld be helpful t Davis if the relevant statement had been the girl s screams fr aid as she was being chased by her assailant. But by the time the victim gt hme, her stry was an accunt f past events. 61 This discussin can be read as suggesting that the Curt will be willing t apply the primary purpse test t statements t family, friends, and ther private parties. In part citing this authrity, ne pst-davis case frm anther jurisdictin remanded n the issue f whether a dmestic vilence victim s statements t a private nlker were testimnial Id. at 2274 n See Cnfrntatin One Year Later, at p. 19; see als infra at pp Additinal purpses culd be: prtecting the child frm further abuse, as well as gathering facts t btain medical treatment Leach 199, 168 Eng. Rep. 202 (1779). 61. Davis, 126 S. Ct. at State v. Mechling, 633 S.E.2d 311, & n.10 (W. Va. 2006) ( we interpret the Curt s remarks t imply that statements made t smene ther than law enfrcement persnnel may als be prperly characterized as testimnial ). Will the primary purpse test be applied t tests and related materials? Crawfrd issues have arisen in many cntexts, including with regard t drug test reprts, autpsy reprts, and maintenance recrds n testing equipment. It is nt clear whether Davis has any implicatins fr these types f evidence. In fact, ne has t lk very hard at the Davis decisin t find any reference t these types f items. Hwever, a reference is there. Specifically, Davis supprted its cnclusin that the cnfrntatin clause applies nly t testimnial evidence by nting that [w]ell int the 20 th century, ur wn Cnfrntatin Clause jurisprudence was carefully applied nly in the testimnial cntext. 63 Amng the cases it ffered in supprt f this statement was Dwdell v. United States, a decisin it described as hlding that facts regarding [the] cnduct f [a] prir trial certified t by the judge, the clerk f curt, and the fficial reprter did nt relate t the defendants guilt r inncence and hence were nt statements f witnesses under the Cnfrntatin Clause. 64 Althugh it might be reading t much int this blique reference, ne culd assert that with this citatin, the Curt was indicating that fficial dcuments nt relating t guilt r inncence are nntestimnial. That wuld suggest that dcuments such as maintenance recrds n testing equipment wuld be nntestimnial. It als wuld suggest that a reprt identifying a substance as a cntrlled substance in a drug case which des relate t guilt r inncence wuld be testimnial. The testimnial r nntestimnial nature f test reprts and related affidavits is a htbed f litigatin arund the cuntry. On pages 13-19, I discuss the cases n pint. Hw shuld a trial judge evaluate statements that are vlunteered t the plice? Crawfrd and Davis invlved questining by the plice r peple assumed t be plice agents. Nting this, Davis stated: This is nt t imply, hwever, that statements made in the absence f any interrgatin are necessarily nntestimnial. The Framers were n mre willing t exempt frm crssexaminatin vlunteered testimny r answers t pen-ended questins than they were t exempt answers t detailed examinatin. 65 This suggests 63. Davis, 126 S. Ct. at Id. at Id. at 2274 n.1 (nting that part f the evidence in the case against Sir Walter Raleigh was a letter frm Lrd 8

13 that actual questining by the plice is nt required fr a statement t be testimnial, as when fr example, fficers are dispatched t a scene t gather evidence and a witness appraches them and spntaneusly identifies the perpetratr. Hw shuld a trial judge apply the frfeiture by wrngding exceptin? Althugh frfeiture by wrngding was nt raised in the cases befre the Curt, Davis went ut f its way t discuss the dctrine and essentially invite its applicatin. While stating that it wuld take n psitin n the standards necessary t demnstrate... frfeiture, 66 the curt nted that federal and state curts have generally held the [prsecutin] t a prepnderance-f-the-evidence standard. 67 Other than these tidbits, the case prvides little guidance t trial judges n this issue. Fr further discussin f frfeiture by wrngding, see page 25 belw. D pre-trial depsitins prvide a prir pprtunity fr crss-examinatin? Suppse that a defendant is scheduled fr trial n felny assault charges in June In statements t an fficer at the hspital after the crime, the victim identified the defendant as her attacker. The prsecutr plans t have the victim identify the defendant at trial. In February 2007, hwever, the prsecutr learns that the victim is dying f cancer. Because her death is imminent, she will be unavailable at trial. If she des nt testify, the nly evidence the state has identifying the defendant as the perpetratr are the victim s statements t the fficer at the hspital statements that are testimnial under Davis. Suppse the prsecutr is able t arrange fr a pre-trial depsitin f the victim. 68 Wuld that depsitin satisfy the requirement f a prir pprtunity fr crss-examinatin? Sme have argued that a pretrial discvery depsitin des nt cnstitute a cnstitutinally adequate prir pprtunity t crss-examine. As ne litigant asserted, the purpse f a pretrial discvery depsitin (as ppsed t a fr-trial depsitin) is t search ut the state s evidence and as such, defense Cbham, which was plainly nt the result f sustained questining ). 66. Id. at Id. 68. Unlike ther states, Nrth Carlina has n statutry prcedure fr pretrial depsitins. This questin assumes that a pretrial depsitin culd be held in Nrth Carlina ntwithstanding this lack f statutry authrity. cunsel will avid being cnfrntatinal, in an effrt t encurage the state s witness t reveal as much as pssible. 69 Thus, the argument cntinues, such a depsitin shuld nt be viewed as an adequate prir pprtunity t crss-examine. 70 Frtrial depsitins have been attacked n grunds that later-acquired evidence can undercut the adequacy f the earlier examinatin. 71 Pst-Crawfrd cases frm Flrida reveal that curts in that state are split n the issue. 72 Decisins frm several ther jurisdictins that have cnsidered this issue pst-crawfrd have held that a pretrial depsitin prvides an adequate pprtunity fr crss-examinatin. Sme f thse decisins are anntated in Cnfrntatin One Year Later at page 31. Others are listed belw. Hward v. State, 853 N.E.2d 461 (Ind. 2006) (discvery depsitin prvided an pprtunity fr crss examinatin; althugh the defendant argued that the depsitin was fr discvery nly, cunsel cnducted a vigrus and lengthy examinatin; all that is required is the pprtunity fr crss examinatin; as the curt put it: Whether, hw, and t what extent the pprtunity fr crss-examinatin is used is within the cntrl f the defendant ) [Authr s nte: an earlier versin f this case is anntated in Cnfrntatin One Year Later at page 31]. Peple v. Jurad, 131 P.3d 400 (Cal. 2006) (pretrial cnditinal examinatin f witness, held because the witness s life was in jepardy, satisfied the cnfrntatin clause s requirements, 69. Hward v. State, 853 N.E.2d 461, 469 n.6 (Ind. 2006) (defense cunsel unsuccessfully asserted this argument). 70. See id. at See Peple v. Jurad, 131 P.3d 400 (Cal. 2006) (defense cunsel unsuccessfully asserted this issue), cert. denied, 127 S. Ct. 383 (2006). 72. Cmpare Crna v. State, 929 S. 2d 588 (Fla. Dist. Ct. App. 2006) (cnfrntatin satisfied) and Blantn v. State, 880 S.2d 798 (Fla. Dist. Ct. App. 2004) (same), with Belvin v. State, 922 S.2d 1046 (Fla. Dist. Ct. App. 2006) (cnfrntatin nt satisfied), review granted, 928 S.2d 336 (Fla. April 28, 2006) and Lpez v. State, 888 S.2d 693 (Fla. Dist. Ct. App. 2004) (a discvery depsitin cannt be regarded as a prir pprtunity fr crss examinatin) and Cntreras v. State, 910 S.2d 901 (Fla. Dist. Ct. App. 2005) (s hlding but recgnizing that there culd be sme circumstances in which the pretrial depsitin culd satisfy the cnfrntatin clause), review granted, 924 S.2d 810 (Fla. Mar. 3, 2006). 9

14 even thugh defense lawyers later acquired infrmatin that wuld have been helpful in the crss-examinatin), cert. denied, 127 S. Ct. 383 (2006). State v. Griffin, 202 S.W.3d 670 (M. Ct. App. 2006) (videtaped depsitin f child victim prvided the defendant with a prir pprtunity t crss examine the victim, even thugh the defendant was barred frm attending the depsitin, where a break was taken s the defendant culd cnfer with cunsel and a statute put the defendant n ntice that the depsitin cnstituted his pprtunity t crss-examine the victim; the curt relied n Maryland v. Craig, 497 U.S. 836 (1990), and a pre-crawfrd state supreme curt pinin uphlding the statutry prcedure). Anther issue presented with regard t pretrial depsitins is this: assuming that a prcedure is available fr the defendant t demand a pretrial depsitin, des a failure t request such a depsitin waive cnfrntatin rights at trial? At least ne curt has rejected that argument. 73 Hwever, the cases discussed in the sectin that fllws, finding waiver when a defendant fails t subpena a witness r demand that the state ffer the witness, may cut the ther way. A related questin is whether ther pre-trial prcedures might be deemed t satisfy the cnfrntatin clause s requirement f a prir pprtunity fr crss-examinatin. At least ne pst- Crawfrd case has held that certain interrgatries can adequately serve that purpse. 74 D prcedures allwing fr the admissin f testimnial evidence unless the defendant subpenas the witness r makes a demand fr the witness s attendance survive Crawfrd? One f the ways that prsecutrs have sught t avid Crawfrd is by arguing that by failing t undertake certain prcedures, defendants have waived their cnfrntatin rights. This issue was discussed abve with respect t pretrial depsitins. 73. Belvin, 922 S.2d 1046; see als Lpez, 888 S. 2d 693 (dicta). 74. See State v. Rangle, 199 S.W.3d 523 (Tex. Ct. App. 2006) (defendant waived cnfrntatin clause rights by failing t take advantage f statutry prcedure f submitting written interrgatries t child after child was deemed unavailable), petitin fr discretinary review granted (Dec. 20, 2006). Anther cntext in which it arises is with respect t a defendant s failure t subpena a witness fr trial. The Nrth Dakta case State v. Campbell, 75 illustrates the issue neatly. In that case, at issue was the admissin f a state crime labratry reprt identifying certain evidence as being marijuana, when the frensic scientist wh prepared the reprt did nt testify at trial. Althugh a Nrth Dakta statute allwed the defendants t subpena the scientist, the defendants did nt d s. The Campbell curt held that by failing t exercise their right t subpena the witness, the defendants waived their cnfrntatin clause rights as t the reprt. 76 A variatin n the subpena prcedure is ne by which the defendant must demand that the state prduce a witness, wh wuld then testify as part f the prsecutin s case. 77 In Nrth Carlina, the fllwing variatins n bth prcedures exist: 1. G.S (e1) prvides fr the use f a chemical analyst s affidavit in impaired driving cases in district curt. Under the statute, a swrn affidavit is admissible in evidence withut further authenticatin with regard t, amng ther things, alchl cncentratin r the presence f an impairing substance. If a defendant wants the chemical analyst t testify in persn, the defendant may subpena the analyst and cnduct examinatin as if the analyst were an adverse witness. The subpena must be prperly filed and served at least five days befre trial, alng with an affidavit specifying the factual grunds n which the defendant believes the chemical analysis was nt prperly administered and the facts that the chemical analyst will testify abut and stating that the presence f the analyst is necessary fr the prper defense f the case. The district curt then determines if there are grunds t believe that the presence f the analyst requested is necessary fr the prper defense N.W.2d 374 (N.D. 2006), cert. denied, S. Ct., 2007 WL (Jan. 22, 2007). 76. Id. at See, e.g., Hward v. United States, 902 A.2d 127 (D.C. 2006) (althugh described as a subpena prcedure, the curt made clear that when the defense subpenas the witness, the gvernment presents the witness in its case-inchief). 78. This prcedure is a subpena plus prcedure in that the defendant must assert grunds justifying the subpena that must satisfy a judge. This plus the fact 10

15 2. G.S (c1) prvides fr the use f chemical analyses f bld r urine in any curt. It prvides that the results f a chemical analysis f bld r urine by certain specified labratries are admissible in any curt withut further authenticatin. Hwever, if the defendant bjects at least five days befre trial in superir curt r an adjudicatry hearing in juvenile curt, the admissibility f the reprt must be determined and gverned by the apprpriate rules f evidence G.S (g) prvides fr the use f chemical analyses in drug cases. The statute prvides that when matter is submitted t certain specified labratries fr chemical analysis t determine the presence f a cntrlled substance, the reprt f that analysis is admissible withut further authenticatin in district and superir curt as evidence f the identity, nature, and quantity f the matter analyzed. Fr the reprt t be admissible in a criminal prceeding in superir curt, the state must ntify the defendant f its intent t intrduce the reprt int evidence and prvide a cpy f the reprt t the defendant. A timely bjectin by the defendant precludes admissibility. Many state subpena and demand prcedures survived cnfrntatin clause challenges pre- Crawfrd. In fact, an earlier versin f the subpena prcedure in G.S (e1) was upheld by the Nrth Carlina Supreme Curt in 1984 in State v. Smith. 80 Smith relied n tw grunds. First, relying n Rberts, the curt held that the reprts were sufficiently reliable s as t satisfy the cnfrntatin clause. Of curse, the ld Rberts reliability test is n lnger the law and thus, while this part f the Smith decisin has nt been addressed by the Nrth Carlina Supreme Curt pst-crawfrd, it is questinable in light f that hlding. Secnd, Smith held that any cnfrntatin clause right that the defendant has t crss-examine the chemical analyst is fully prtected by the right t a trial de nv in superir curt, where G.S (e1) is inapplicable. Althugh that aspect f the hlding is that grunds must be asserted was enacted in See S.L , sec This prvisin was enacted in See S.L , sec N.C. 361 (1984). unaffected by Crawfrd, it cannt be asserted in supprt f G.S (c1) r G.S (g) when they are applied in superir curt. Significantly, Smith als held that in district curt, the defendant has the right t subpena the analyst and that failure t exercise this right results in a waiver f the right t examine the analyst. Pst-Crawfrd, a number f prcedures have been scrutinized anew under the new, mre rigrus cnfrntatin clause analysis. Althugh there are n published Nrth Carlina pst-crawfrd cases n pint, litigatin in ther jurisdictins indicates that the issue is likely t arise in this state. At least fur curts have upheld the prcedure at issue pst- Crawfrd. In State v. Campbell, 81 the curt, as nted abve, upheld the prcedures n nn-crawfrd waiver grunds. Similarly, the Nevada Supreme Curt rejected the argument that a state statute prviding that an affidavit f a persn wh withdraws a bld sample is admissible t prve certain facts was uncnstitutinal under Crawfrd. 82 That curt held that nthing in Crawfrd cmpelled it t depart frm its pre-crawfrd determinatin that the statute, which allwed fr the defendant t demand attendance f the witness wh signed the affidavit, was cnstitutinal n waiver grunds. S t in Luisiana, where the state supreme curt upheld the statute at issue, finding that Crawfrd was nt cntrlling and that the statute cnstituted a permissible frmalized means f effectuating a stipulatin. 83 And finally, Oregn has decided the issue similarly, cncluding that neither Crawfrd nr Davis called int questin the state supreme curt s earlier decisin uphlding the state s demand prcedure in the face f a cnfrntatin clause challenge N.W.2d 374 (N.D. 2006), cert. denied, S. Ct., 2007 WL (Jan. 22, 2007). 82. City f Las Vegas v. Walsh, 124 P.3d 203 (Nev. 2005), cert. denied, 126 S. Ct (2006). 83. State v. Cunningham, 903 S.2d 1110 (La. 2005). Interestingly, the Luisiana statute, which applied t bth defendants and the state, impsed n the defendant nly a requirement t certify an intentin t cnduct crssexaminatin in gd faith. See id. at The curt nted that unless this burden is featherweight, it might adversely impact cnfrntatin clause rights. See id; see als supra n. 78 [discussing the subpena plus prcedure in G.S (e1)]. 84. See State v. Miller, 144 P.3d 1052 (Or. Ct. App. 2006), pinin adhered t n recnsideratin, 149 P.3d 1251 (Or. Ct. App. 2006); State v. Wells, 144 P.3d 1077 (Or. Ct. App. 2006). 11

16 In cntrast t these cases is Belvin v. State, 85 which held that a defendant s right t subpena a breath test peratr as an adverse witness at trial did nt adequately preserve his cnfrntatin rights. The curt stated: Nt nly des a defendant have n burden t prduce cnstitutinally necessary evidence f guilt, but he has the right t stand silent during the state s case in chief, all the while insisting that the state s prf satisfy cnstitutinal requirements. 86 Other decisins take mre f a middle grund, accepting the prcedures, prvided that certain requirements are satisfied. One curt wuld require that if the defendant subpenas the witness, the prsecutin must call the witness as part f its case, as ppsed t testifying as a defense witness. 87 That same curt wuld require that if a failure t subpena a witness is t be cnsidered a waiver, the waiver must be cnstitutinally valid. 88 Specifically, it indicated that the best curse fr the prsecutin wuld be t btain an express waiver. Hwever, the curt cnceded that a waiver culd be inferred when a represented defendant is prvided with the reprt that is sught t be intrduced withut the preparer s testimny and is advised f the cnsequences f failure t request the preparer s attendance. 89 Alng these lines, at least ne curt has struck dwn its state s ntice and demand statute because it failed t prvide a bare minimum f ntice, which that curt stated wuld cnsist f ntice f the cntents f the reprt and the likely cnsequences f a failure t request the preparer s testimny. 90 Withut such ntice, the curt cncluded there is n reasnable basis t cnclude that the defendant s failure t request the testimny cnstituted a knwing, intelligent, and vluntary waiver f his cnfrntatin rights. 91 Of curse, a cnfrntatin clause issue nly arises if the underlying evidence is testimnial. Fr a discussin regarding the testimnial r nntestimnial nature f dcuments such as analysts affidavits, see infra pages S.2d 1046 (Fla. Dist. Ct. App. 2006), review granted, 928 S.2d 336 (Fla. April 28, 2006). 86. Id. at 1054 (qutatin mitted). 87. Thmas v. United States, 914 A.2d 1 (D.C. 2006). 88. Id. 89. Id. 90. State v. Caulfield, 722 N.W.2d 304 (Minn. 2006). 91. Id. Is it cnstitutinal fr a prsecutr t prduce a witness in curt but nt put the witness n the stand, thereby requiring the defendant t call the witness r waive his r her cnfrntatin rights? A questin related t the discussin immediately abve is whether a cnfrntatin clause vilatin ccurs when the state seeks t intrduce a testimnial statement, prduces the witness in curt but declines t call the witness t the stand, leaving it t the defendant t put the witness n the stand as part f the defendant s case if the defendant wishes t examine the witness. Withut analysis, the Nrth Carlina Curt f Appeals held that in such a situatin, the defendant s failure t call the witness cnstituted a waiver f the defendant s cnfrntatin clause rights. 92 At least ne ther jurisdictin has rejected this prcedure. 93 Anther held that the fact that a trial curt gave a defendant the ptin t subpena a state s fact witness at trial did nt satisfy the cnfrntatin clause. 94 By cntrast, the Gergia Curt f Appeals held that the prcedure did nt vilate Crawfrd. 95 Arguably, this prcedure is prblematic under the new Crawfrd rule. Under Crawfrd, in rder t admit testimnial evidence, the state must shw that the witness is unavailable and that the defendant had a prir pprtunity t crss-examine the witness. By making the witness available fr the defendant t call t the stand, the state has established that the witness is nt unavailable. Additinally, nne f the cases n 92. State v. Brigman, 171 N.C. App. 305 (2005) [because child witnesses were available t testify (althugh neither the State nr the defendant called them t testify), defendant waived her right t cnfrnt these witnesses]. 93. Brattn v. State, 156 S.W. 3d 689, (Tex. Ct. App. 2005) ( [W]e find nthing in Crawfrd r elsewhere suggesting that a defendant waives his right t cnfrnt a witness whse testimnial statement was admitted int evidence by failing t call him as a witness at trial. In fact, as the party seeking t admit [the witnesses ] statements, it was the State's burden t shw their statements were admissible, that is, that [the witnesses] were unavailable and that [the defendant] had been affrded a prir pprtunity t crss-examine them. By the State's wn admissin thugh, [the witnesses] were available t testify, and nthing in the recrd suggests, nr des the State cntend, that [the defendant] was affrded a prir pprtunity t crss-examine them). 94. State v. Cx, 876 S.2d 932 (La. Ct. App. 2004). 95. Starr v. State, 604 S.E.2d 297 (Ga. Ct. App. 2004); see Cnfrntatin One Year Later at page 29 fr a fuller discussin f Brattn and Starr. 12