Crawford v. Washington US Supreme Court, March 2004 Implications for Courts NYC Elder Abuse Training Project

Decision impacts:  Evidence procedures  Special considerations to older and child witnesses  Defendants confrontation rights  Priority of hearsay exceptions

Before Crawford  Judge could admit “reliable” evidence without victim appearing Child victims Elder victims  Per Roberts v. Ohio, hearsay exceptions first, then “reliability”

After Crawford  Witness must be cross-examined  Defendant’s 6 th Amendment confrontation right primary

Crawford applies only when:  Case is criminal  Witness is unavailable to testify  Statement is “testimonial”  Defense has not had an opportunity to cross examine the witness

Testimonial  Key term  Not defined in decision  Decision offers factors to consider

Factors to consider  Statement casual or overheard?  Declarant an accuser making formal statement to gov’t officers?  Could declarant reasonably expect statement to be used at trial?  Contained in formalized material?  Knowingly given in response to police questioning?

Likely “testimonial”  Police investigations  Statements disputed by another party in court  Joint interviews by police and social workers  Some 911 tapes (e.g., to report a crime)

Likely not testimonial  Offhand remarks to police  Medical notes and diagnoses  Social agency records if they qualify under the “business rule” exception  Some 911 tapes (e.g., to seek aid)

Hearsay exceptions endorsed  Dying declarations  Business records (but not testimonial)  Statements in furtherance (but not testimonial)

Exceptions upheld in recent cases  Statements by conspirators in furtherance  Business records  Present sense impressions  Excited utterances  State of mind  Residual exception

Case law split  Testimoniality of 911 tapes  Testimoniality of interactions with police officers  Hundreds of confrontation cases since March 2004 decision

Appeals  Crawford applies to current cases  Once verdict final, state or habeas appeals not accepted if defendant did not argue confrontation previously  Hundreds of confrontation cases since March 2004 decision