CONFRONTATION ARKANSAS APRIL 2011 MIKE DENTON

Crawford v. Washington November 2008 CONFRONTATION 124 S. Ct. 1354 (2004)

Crawford v. Washington Not a DV Case. Petitioner charged with assault and attempted murder. He claimed self-defense. The State introduced a recorded statement of Petitioner’s wife, Sylvia, made during police interrogation, as evidence that the stabbing was not in self-defense. Petitioner invoked marital privilege, preventing Sylvia from testifying at trial. Petitioner argued that admitting the evidence would violate his right of confrontation under 6th Amendment. The trial court admitted the statement because it has “sufficient indicia of reliability.” The State Supreme Court upheld the conviction, deeming the statement reliable.

6th Amendment Right to Confrontation “In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.”

The Right to Confrontation In Crawford, the Supreme Court found that the accused’s 6th Amendment right to confront the witnesses against him applies when the prosecutor wants to introduce any out-of-court statement that is testimonial in nature.

Crawford Holding Testimonial hearsay is admissible ONLY when: Prosecution shows that the Declarant is unavailable to testify at trial AND There was prior opportunity for cross examination. OR The defendant has forfeited their right to object (stay tuned for Giles….)

CRAWFORD QUESTIONS Confrontation = ? Testimonial/Non-Testimonial Law Enforcement/Civilians Unavailability, Efforts to obtain presence Prior Opportunity to Cross Forfeiture of Rights to Confront

What is Testimonial? Solemn declaration or affirmation made for the purpose of establishing or proving some fact. Crawford v. Washington, 124 S. Ct. 1354, 1364 (2004) Contrasts accuser making formal statement to govern agent with person making casual remark to acquaintance. Id. Statements directed at government agents that “reasonably objective person should know would be available for use at later trial.” Id.

What is Testimonial? Preliminary hearing testimony Grand jury testimony Prior trial testimony Police Interrogations “Interrogation” not used in the Miranda sense Structured police questioning Affidavits/Sworn statements Depositions

What is “Interrogation?” Interrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator. (Testimonial) Davis, 126 S. Ct. 2266, 2276 Interrogations designed to elicit current circumstances requiring police assistance. (Non-testimonial)

Factors-Testimonial To whom was the statement made? Government vs. non-government agent Circumstances of making the statement Emergency? Who Initiated? Where? Why? What was the statement? What was the result of the statement?

What is Not Testimonial? Casual or off-handed remarks “Truly excited utterances” (Anonymous Assistant County Attorney) 911 transcripts/statements/tapes when emergency is occurring Statements to law enforcement when emergency is occurring

Hybrid Statements Non-testimonial Statements that evolve into testimonial statements during the course of interrogation. Example – 911 Tapes - Statements over a period of time

Davis v. Washington Hammon v. Indiana 126 S. Ct Davis v. Washington Hammon v. Indiana 126 S. Ct. 2266 (2006)-(Consolidated) U.S. Supreme Court June 19, 2006 911 Call Officer Responds to Scene

Davis v. Washington: DV Case. Victim called 911, identified Petitioner as her assailant, and described the assault to the 911 operator. Victim did not testify at Petitioner’s trial, but the trial court admitted the 911 tape. The State Supreme Court affirmed. It held that the 911 call was not testimonial and not the equivalent of an in-custody, police interrogation. It also held that the purpose of the 911 call is to call for help, not bear witness, and, therefore, is not testimonial.

Hammon v. Indiana (decided with Davis): DV case. Police responded to the scene and Victim described how Petitioner assaulted her to the police. Victim did not testify at trial, but officers testified to Victim’s statements. Trial court admitted statements under “excited utterance” exception to the hearsay rule. The Indiana Supreme Court affirmed, reasoning that the statements were not “testimonial” because the officer questioned the victim in order to assess and secure the situation, NOT to preserve the victim’s statements for future use in legal proceeding.

Davis Holding Statements are NON-TESTIMONIAL when made in the course of a police interrogation under circumstances objectively indicating that the PRIMARY PURPOSE of the interrogation is to enable police assistance to meet an ongoing emergency. Davis v. Washington, 126 S. Ct. 2266, 2273

Davis Holding [Statements] are TESTIMONIAL when the circumstances objectively indicate that there is no such ongoing emergency, and that the PRIMARY PURPOSE of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Davis v. Washington, 126 S. Ct. 2266, 2273-2274

So, What Constitutes and On-Going Emergency? When is the Emergency over? When is it establishing/proving past events? Can statements be both? Change?

PRIMARY PURPOSE What is the PRIMARY PURPOSE of the Police Interrogation Trial Courts Role…. “Courts will recognize the point at which, for Sixth Amendment purposes, statements in response to interrogatories become testimonial.” Davis v. Washington 547US at 829

MELENDEZ-DIAZ V. MASSACHUSETTS 129 S.CT. 2527 (2009) Certificate of analysis = Testimonial Made under circumstances that would lead an objective witness to believe the statement would be available for use at a later trial where sole purpose of certificate was to provide prima facie evidence of composition, quality, and not weight of the analyzed substance.

Prior Opportunity to Cross CONFRONTATION Prior Opportunity to Cross Trials Hearings Attorneys/Pro se Restricted Cross

FORFEITURE BY WRONGDOING Crawford - The Supreme Court recognized the doctrine of Forfeiture by Wrongdoing where “one who obtains the absence of a witness by wrongdoing forfeits the Constitutional right of confrontation.” Davis - Forfeiture by Wrongdoing “extinguishes confrontation claims on essentially equitable grounds.”

Giles v. California Facts Domestic violence homicide case in which defendant claimed self-defense. Evidence showed Victim was shot three times: once consistent with her holding up her hand; once consistent with her turning to the side; once consistent with her lying on the ground. Witnesses saw defendant holding the gun—Victim did not have a gun. A witness drove defendant away from the scene at his request. Defendant jumped out of the car and fled. Defendant did not turn himself into police.

Procedure Admission of Decedent Victim’s hearsay statement from an incident two weeks prior to her death. Appellate court upheld admission under Doctrine of Forfeiture by Wrongdoing. Defendant appealed claiming he did not kill Victim to prevent her testimony (he claimed self-defense).

GILES Majority(6) – State must establish defendant acted with the intent to keep the witness from testifying. Question Sole Intent? Multiple/Mixed Intent?

Confrontation Domestic Violence Cases Non Domestic Violence Cases

Confrontation Post-Giles Forfeiture Hearing Evidence Needed Burden of Proof “Wrong Doing” definition Prior History

FORFEITURE HEARING DOMESTIC VIOLENCE Past History? Case at Bar? Post offense Domestic Violence History

Mike Denton Michael.denton@co.travis.tx.us (512) 854-9896