The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” This bedrock procedural guarantee applies to both federal and state prosecutions. Pointer v. Texas, 380 U. S. 400, 406 (1965). In Ohio v. Roberts, 448 U. S. 56 (1980), the Supreme Court held that the Confrontation Clause does not bar admission of an unavailable witness’s statement against a criminal defendant if the statement bears “adequate ‘indicia of reliability.’” Id., at 66. To meet that test, evidence had to either fall within a “firmly rooted hearsay exception” or bear “particularized guarantees of trustworthiness.” Ibid. The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” This bedrock procedural guarantee applies to both federal and state prosecutions. . In , the Supreme Court held that the Confrontation Clause does not bar admission of an unavailable witness’s statement against a criminal defendant if the statement bears “adequate ‘indicia of reliability.’” ., at 66. To meet that test, evidence had to either fall within a “firmly rooted hearsay exception” or bear “particularized guarantees of trustworthiness.” Ibid.

The Supreme Court revisited Ohio v. Roberts in Crawford v. Washington, 541 U.S. 36 (2004). In Crawford, the Supreme Court held that “[w]here testimonial evidence is at issue . . . the Sixth Amendment demands . . . unavailability and a prior opportunity for cross-examination” in order for the evidence to be admitted. Id., at 68. The Supreme Court left for another day a comprehensive definition of “testimonial,” but did find, inter alia, that statements made during police interrogation were testimonial in nature.

For federal habeas practitioners it is important to remember that Crawford is not retroactive to cases already final on direct review at the time Crawford was decided, i.e., March 8, 2004. Whorton v. Bockting, 549 U.S. 406 (2007).

John R. Mills
201 W. Main Street, Suite 301 Durham, NC 27701
Phone: 919 251 6259  Fax: 919 237 9254  E-Mail: john@jrmillslaw.com
Web: jrmillslaw.com
Successful Confrontation Clause Cases after Crawford v. Washington, 541 U.S 37 (2004)
A Publication of the Habeas Assistance and Training Project (HAT)
Prepared by John R. Mills for HAT
John R. Mills
201 W. Main Street, Suite 301 Durham, NC 27701
Phone: 919 251 6259  Fax: 919 237 9254  E-Mail: john@jrmillslaw.com
Web: jrmillslaw.com
The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him.” This bedrock
procedural guarantee applies to both federal and state prosecutions. Pointer v. Texas, 380 U. S.
400, 406 (1965). In Ohio v. Roberts, 448 U.S. 56 (1980), the Supreme Court held that the
Confrontation Clause does not bar admission of an unavailable witness’s statement against a
criminal defendant if the statement bears “adequate ‘indicia of reliability.’” Id., at 66. To meet
that test, evidence had to either fall within a “firmly rooted hearsay exception” or bear
“particularized guarantees of trustworthiness.” Id.
The Supreme Court revisited Ohio v. Roberts in Crawford v. Washington, 541 U.S. 36 (2004).
In Crawford, the Supreme Court held that “[w]here testimonial evidence is at issue . . . the Sixth
Amendment demands . . . unavailability and a prior opportunity for cross-examination” in order
for the evidence to be admitted. Id., at 68. The Supreme Court left for another day a
comprehensive definition of “testimonial,” but did find, inter alia, that statements made during
police interrogation were testimonial in nature.
For federal habeas practitioners it is important to remember that Crawford is not retroactive to
cases already final on direct review at the time Crawford was decided, i.e., March 8,
2004. Whorton v. Bockting, 549 U.S. 406 (2007).
The following are summaries of state and federal cases addressing the Confrontation Clause
decided after Crawford v. Washington, 541 U.S. 36 (2004). The summaries include every
Supreme Court case since Crawford and the state and federal cases granting relief on
Confrontation Clause grounds through January 1, 2012.
Most of the cases address several important issues, but they are sorted by the topic of greatest
significance to the case. An asterisk (*) precedes the capital cases.
Where available, there is a link to a publicly available version of the case.
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Table of Contents
U.S. Supreme Court Cases……………………………………………………………………………………………….. 4
Testimonial Hearsay ……………………………………………………………………………………………………… 11
Non-Law Enforcement Interrogator …………………………………………………………………………….. 11
Ongoing Emergencies………………………………………………………………………………………………… 24
Issues Related to Experts……………………………………………………………………………………………. 31
Statements to Law Enforcement ………………………………………………………………………………….. 46
Other Testimonial Hearsay …………………………………………………………………………………………. 46
Offered for the Truth of the Matter Asserted…………………………………………………………………….. 74
Availability for Cross-Examination…………………………………………………………………………………. 82
Good Faith Efforts to Obtain Presence of Witness…………………………………………………………. 82
Forfeiture by Wrongdoing ………………………………………………………………………………………….. 88
Other Availability Issues…………………………………………………………………………………………….. 92
Improperly Limited Cross-Examination…………………………………………………………………………… 94
Witness Refusal or Inability to Testify …………………………………………………………………………. 94
Court Imposed Limitations…………………………………………………………………………………………. 97
Other Limitations on Cross-Examination ……………………………………………………………………. 119
Improperly Admitted Co-Defendant Statements (Bruton Error)………………………………………… 123
Ineffective Assistance of Trial Counsel for Confrontation Error ……………………………………….. 131
Ineffective Assistance of Appellate Counsel for Confrontation Error…………………………………. 135
Non-Harmless Error…………………………………………………………………………………………………….. 137
Harm Found Based on Prosecution Arguments……………………………………………………………. 137
Harm Found Despite Limiting Instruction Offered ………………………………………………………. 141
Generally………………………………………………………………………………………………………………… 143
Miscellaneous …………………………………………………………………………………………………………….. 170
Post-Crawford Cases Applying Ohio v. Roberts……………………………………………………………… 177
Cases Applying Confrontation Rights in Sentencing Proceedings……………………………………… 184
Successful Crawford Cases 4 Habeas Assistance and Training
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U.S. Supreme Court Cases
Williams v. Illinois, __ U.S. __, 132 S. Ct. 2221 (2012)
At a bench trial for aggravated sexual assault, aggravated robbery, and aggravated kidnapping,
the court admitted expert testimony based in part on a DNA profile produced from semen found
on vaginal swabs taken from the victim. At trial, no one who conducted the actual DNA testing
on the vaginal swabs testified, but the evidence showed that a group called Cellmark developed a
DNA profile based on the semen. The report from Cellmark was not admitted as evidence.
The defendant was convicted and appealed. The state appellate courts affirmed his conviction
and sentence. He then petitioned for a writ of certiorari in the United States Supreme Court.
The Supreme Court granted certiorari to determine whether the Confrontation Clause bars “an
expert from expressing an opinion based on facts about a case that have been made known to the
expert but about which the expert is not competent to testify.”
The Court held that the expert’s testimony did not violate the Confrontation Clause. It explained
that it was permissible for the expert to rely on 1) the Cellmark report and 2) the assumption that
the DNA profile she was comparing it to was developed from the semen in the vaginal swabs.
The Court noted the assumption was similar to the historical practice of offering hypothetical
questions to an expert and consistent with the contemporary practice of asking hypothetical
questions of experts without phrasing the questions as such. The Court distinguished this case
from one before a jury, where an instruction on hypothetical questions would be required.
The Court also held that even if the Cellmark report itself had been admitted, there would be no
Confrontation Clause violation. It differentiated the report from accusatory statements and
evidence intended to link a particular person to a crime. The latter are generally testimonial.
The report, by contrast, was made when no suspect had been identified. Its primary purpose was
to “catch a dangerous rapist,” not to obtain evidence for use against the defendant. Affirmed.
Hardy v. Cross, 565 U.S. __, 132 S. Ct. 490 (2011) (per curiam)
At trial for kidnapping and sexual assault, the victim testified and was cross-examined by the
defendant’s attorney. The jury found the defendant not guilty of kidnapping, but was hung on
the sexual assault charge. The victim had informed the prosecutor that after the trial, she was
willing to testify at the retrial. The state had stayed in “constant contact” with the victim and the
victim and her mother had given “every indication” that she would testify.
Nonetheless, ten days prior to the retrial, the state learned that the victim had run away from
home and had not returned. The state made extensive efforts, enumerated by the Court to secure
the victim’s attendance. These efforts included “constant personal visits to the home of [the
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victim],” “personal visits to the home of [the victim’s] father,” and inquires at numerous local
agencies and organizations where the victim might be found. The state did not, however, inquire
as to the victim’s whereabouts from her boyfriend, inquire of her cosmetology school, or issue a
subpoena to the victim.
On appeal, the Illinois state appellate court found that the state had made “superhuman” efforts
to locate the victim and had, therefore, established her unavailability to testify. The defendant
filed a petition for writ of habeas corpus, which was denied. The Seventh Circuit reversed the
denial, finding that the Illinois court had unreasonably applied clearly established law.
The Supreme Court reversed. It held that the state court had “identified the correct Sixth
Amendment standard and applied it in a reasonable manner,” regardless of whether it “went too
far in characterizing the prosecution’s efforts as superhuman.” It explained that the state court
was not unreasonable, despite the state’s lack of inquiries or subpoena. The Court noted that
there was no indication that the additional inquiries were likely to be fruitful. It also explained
that the lack of subpoena was not problematic because in the prior trial, the victim had testified at
the original trial despite her expressed fear.
The Court clarified that the reasonableness standard for determining whether the state had acted
diligently to find an unavailable witness does not require, in every case, the state to issue a
subpoena to a witness. A subpoena may not be required where a “witness is so fearful of an
assailant that she is willing to risk his acquittal by failing to testify at trial.”

Bullcoming v. New Mexico, __ U.S. __, 131 S. Ct. 2705 (2011)
At trial for driving under the influence, the court admitted a blood alcohol content (BAC) lab
report through the testimony of a scientist who was familiar with the lab’s procedures and
testing, but who did not conduct the testing that was ultimately used to convict the defendant.
The New Mexico Supreme Court affirmed, holding that while the results of the lab tests were
testimonial, the testimony of the scientist was sufficient to meet the demands of the
Confrontation Clause.
The Supreme Court granted certiorari to answer whether the “Confrontation Clause permits the
prosecution to introduce a forensic laboratory report containing a testimonial certification—made
for the purpose of proving a particular fact—through the in-court testimony of a scientist who
did not sign the certification or perform or observe the test reported in the certification.” It held
that the Confrontation Clause bars admission in such circumstances.
The Court emphasized that the testing in question involved several steps and that “human error
can occur at each step.” It rejected the state’s factual claim that obtaining an accurate
Successful Crawford Cases 6 Habeas Assistance and Training
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measurement “merely entails ‘look[ing] at the [gas chromotograph] machine and record[ing]’ the
results.” (alterations in original). The court described the “human actions” of the “past events”
as “meet for cross-examination” including that the lab received the defendant’s blood sample
was intact with the seal unbroken, that the technician ensured the sample and the report numbers
matched, and that the technician performed a “particular test, adhering to a precise protocol.”
While the Court distinguished the situation here from where a mere scrivener records a read out,
the Court made clear that “the comparative reliability of an analyst’s testimonial report drawn
from machine-produced data does not overcome the Sixth Amendment bar.”
The Court also made clear that the report, contrary to New Mexico’s contention, was testimonial
hearsay because it was “[a] document created solely for an evidentiary purpose, made in aid of a
police investigation.” (internal quotation and citation omitted). Thus, it took a broader view
than the dissent, which sought to characterize the Confrontation Clause as only barring “the
government from replicating trial procedures outside of public view.”
The Court, as it had in Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009),
spoke approvingly of “notice and demand” statutes which require defendants to notify the state if
they intend to exercise their Confrontation Clause rights. Such statutes, the Court explained, will
alleviate the state’s concerns about the cost of having analysts testify.
Michigan v. Bryant, __U.S. ___, 131 S. Ct. 1143 (2011)
At trial, the court admitted the statement of the deceased homicide victim made in response to
police questioning identifying the defendant as being involved in his being shot. Neither the
defendant nor any other suspect was present at the scene. The police ceased questioning the
defendant when the paramedics arrived five or ten minutes after the police arrived. The
defendant died in the hospital.
The Michigan Supreme Court reversed, holding that the statements were testimonial hearsay.
The Supreme Court granted certiorari to “confront for the first time circumstances in which the
‘ongoing emergency’ discussed in Davis extends beyond an initial victim to a potential threat to
the responding police and the public at large.”
The Court reversed the Michigan Supreme Court and held that based on its “objective[]
evaluat[ion of] the circumstances in which the encounter occur[ed] and the statements and
actions of the parties,” the statement was made in the course of an ongoing emergency. The
Court explained that such an inquiry was relevant to whether the statements were made with the
purpose of providing past events to be used in criminal investigation and prosecution.
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The Court first reviewed the circumstances of the encounter and determined that the factors
suggested that the statements were made during an ongoing emergency and were, therefore, not
excluded by the Confrontation Clause. First, the Court examined the scope of potential victims,
contrasting the “narrower zone of potential victims” in domestic violence cases with the present
case where assisting a single victim may not “neutralize” the threat to the police and the public.
The Court noted that a “private dispute” is unlikely to produce an ongoing emergency for the
public at large.
The Court examined they “type of weapon employed” to determine the “duration and scope of
the emergency.” It contrasted the weapon used in Davis v. Washington, 547 U.S. 813 (2006), the
defendant’s fist, with the weapon used here, a gun. The former, it reasoned, could be rendered
useless by merely removing the suspect from the proximity of the victim. This reasoning is
flawed, however, because it does not account for whether the police or another victim might be
victimized by a suspect’s fists. The Court explained that the emergency did not continue for the
entire year prior to the defendant’s arrest in California, but explained that because the statements
occurred “within a few blocks and a few minutes of the location” where the police found the
victim, they occurred during the emergency.
The Court also took into account the victim’s “medical state” to determine whether the
statements were made to address an ongoing emergency because it may “shed light on the ability
of the victim to have any purpose at all in responding to police questions.”
Significantly, the Court clarified that the “existence vel non of an ongoing emergency is [not]
dispositive of the testimonial inquiry.” Rather it is one factor among many to determine the
“primary purpose” of an interrogation. If the primary purpose is investigatory, then the
interrogation produces testimonial statements.
The Court next examined the statements made by both the police and the victim. The Court
emphasized that based on what the police had been told, they “did not know why, where, or
when the shooting had occurred.” It explained that the types of questions the police asked, “what
had happened, who had shot him, and where the shooting occurred, were the exact questions
necessary to allow the police to assess the situation, the threat to their own safety, and possible
danger to the potential victim and to the public.” (internal quotations and citations omitted).
This case will often be factually distinguishable, as there is often evidence of a relationship
between the victim and suspect that makes the ongoing emergency come to an end once the two
are separated.
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009)
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The trial court admitted into evidence “certificates of analysis” reporting the results of forensic
analysis, which showed that material seized by the police and connected to the defendant was
cocaine. The certificates were sworn before a notary public, as required by state law. The Court
reversed the Massachusetts appellate courts and ruled that the analysts were “witnesses” and that
the statements were “testimonial” and inadmissible under the Confrontation Clause. Despite the
state’s label of “certificates,” the Court held that the affidavits “fell within the ‘core class of
testimonial statements’” described in Crawford because the statements 1) were given under oath
before a notary, 2) addressed the subject matter at issue in trial, and 3) were written, per state
law, for the “sole purpose” of litigation. The Court contrasted the affidavits with “medical
reports created for treatment purposes,” which would not be barred by the Confrontation Clause.
The Court rejected the respondent’s proposed exceptions for “neutral scientific testing,” “[non-
]conventional witnesses” who make contemporaneous observations, and non-accusers. The
Court cited the National Academy of Sciences’ report on forensic science to refute the dissent’s
suggestion that forensic reports are uniquely “neutral” and “scientific.” “Confrontation is
designed to weed out not only the fraudulent analyst, but the incompetent one as well.”
Rejecting the respondent’s argument that the prosecution need not call witnesses who are not
“accusatory,” the Court contrasted the requirements of the Confrontation Clause with the
Compulsory Process Clause, “The prosecution must produce the former; the defendant may call
the latter.” The Court allowed that “States may adopt procedural rules governing the exercise of
[Confrontation Clause] objections,” but did not address the minimum constitutional requirements
for valid “notice and demand” statutes that provide for waiver absent a request that the
prosecution call a witness, other than to say that the “simplest form” of the statutes is
constitutional. The Court also rejected the respondent’s suggestion that the certificates are
business records, “[T]he affidavits do not qualify as traditional official or business records, and
even if they did, their authors would be subject to confrontation nonetheless” because the
certificates, like police reports, are “calculated for use in court, not in business.” The majority
failed to address the dissent’s question of which members of the testing team must testify, an
important issue going forward.
Giles v. California, 554 U.S. 353 (2008)
The trial court admitted into evidence the murder victim’s statements made to police officers
about the defendant regarding a domestic-violence dispute occurring several weeks prior to when
the victim was killed by defendant, who claimed self defense at his murder trial. The Court held
that the state courts erred in holding that forfeiture applied to situations where the defendant
procured the witness’s absence for reasons other than “prevent[ing] a witness from testifying.”
Examining “founding-era exception[s],” as defined by case law from the founding era, the Court
found that while forfeiture by wrongdoing is an exception to the right of confrontation, the state
court misstated the rule.
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August 2012
According to the Court, a defendant forfeits his right to confront witnesses “if the defendant has
in mind the particular purpose of making the witness unavailable” when committing the
wrongdoing. It adopted a “purpose-based” definition of the forfeiture rule and noted that the
“purpose of the rule was removing the otherwise powerful incentive for defendants to intimidate,
bribe, and kill the witnesses against them.” In rejecting a murder victim exception, the Court
explained that the “notion that judges may strip the defendant of a right that the Constitution
deems essential to a fair trial, on the basis of a prior judicial assessment that the defendant is
guilty as charged, does not sit well with the right to trial by jury.” The Court referred to, but did
not address, the “historic” dying declaration exception to the hearsay rule. Judgment of the
California Supreme Court is vacated and the case is remanded.
Whorton v. Bockting, 549 U.S. 406 (2007)
The Supreme Court ruled that Crawford v. Washington, 541 U.S. 36 (2004) did not announce a
“watershed rule” of criminal procedure that would be applied retroactively on collateral review.
Davis v. Washington, 547 U.S. 813 (2006)
The Court considered two consolidated cases to “determine more precisely which police
interrogations produce testimony.” In the first case, Davis, the trial court admitted into evidence
recordings of statements the non-testifying complainant made to a 911 operator about the
defendant’s assault, which took place moments before the call. The defendant was present
during the first part of the call, but fled while the complainant continued to be questioned. In the
second case, Hammond, the trial court admitted into evidence police officer testimony of
statements the non-testifying complainant made to police officers during their investigation. The
complainant also made a written statement offered under oath.
The Court reiterated the holding of Crawford, testimonial hearsay is generally inadmissible
under the Confrontation Clause, and offered a formulation of which statements qualify as such,
“Statements are nontestimonial when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the interrogation is to enable
police assistance to meet an ongoing emergency. They 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.” In Davis, the Court held that the initial statements made in response to the 911
operator’s questions were not testimonial hearsay. The Court explained that “police
interrogation” produces testimonial statements, but that when the statements are made to address
an “ongoing emergency,” the statements are not being offered to “establish or prove some past
fact, but to describe current circumstances requiring police assistance” (internal quotation and
alteration omitted). The complainant’s initial statements to the 911 operator were not testimonial
because they were to address the ongoing emergency. In dicta, the Court suggested that the
Successful Crawford Cases 10 Habeas Assistance and Training
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statements made later in the call, after the defendant had left, may be testimonial. The Court
assumed for the sake of the opinion that the 911 operator was an agent of the police and declined
to address whether statements made to persons other than law enforcement might be testimonial.
Classifying the Hammond complainant’s statements presented “a much easier task” for the
Court, and it found that the statements were testimonial. It rejected the Indiana Supreme Court’s
ruling that excited utterances, as the trial court had found the complainant’s to be, were
categorically non-testimonial. Even though the defendant was in the next room and had to be
restrained from intervening during the interrogation, there was no “ongoing emergency.” The
Court emphasized the complainant’s use of the past tense, the location of the defendant in a
separate room, and the temporal separation of the statement from the events described. Because
the statements “were neither a cry for help nor the provision of information enabling officers
immediately to end a threatening situation,” the fact that they were made as part of the police
officers’ initial inquiry was “immaterial.”
Crawford v. Washington, 541 U.S. 36 (2004)
The trial court admitted into evidence a recording of a statement the non-testifying wife of the
defendant made to police officers during an interrogation about an incident in which the
defendant stabbed a man who allegedly tried to rape her. The statement was made while in
custody and after Miranda warnings had been issued. The wife was rendered unavailable by
defendant’s invocation of the state spousal privilege. Nonetheless, the trial court ruled that her
recorded statement bore sufficient indicia of reliability and was admissible as a statement against
penal interest. Thus, the recording was admitted, but the witness did not testify. The recording
contradicted the defendant’s theory of self-defense.
The Court granted certiorari to “determine whether the State’s use of [the wife’s] statement
violated the Confrontation Clause.” Relying on old English and early American cases to
examine the meaning of the clause, the Court determined that “the principal evil at which the
Confrontation Clause was directed was the civil-law mode of criminal procedure, and
particularly its use of ex parte examinations as evidence against the accused” and that “not all
hearsay implicates Sixth Amendment concerns,” particularly “offhand remarks” or other
“nontestimonial” ex parte statements. It ruled that “[t]estimonial statements of witnesses absent
from trial [may only be] admitted where the declarant is unavailable, and only where the
defendant has had a prior opportunity to cross-examine [them].” The Court overturned the rule
set forth in Ohio v. Roberts, 448 U.S. 56 (1980).
The Court declined to provide a “comprehensive definition of ‘testimonial,’” but agreed that
several definitions shared a “common nucleus”: “ex parte testimony or its functional
equivalent,” “extra-judicial statements . . . contained in formalized testimonial materials,” and
“statements that were made under circumstances that would lead an objective witness reasonably
Successful Crawford Cases 11 Habeas Assistance and Training
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to believe that the statement would be available for later use at trial.” Statements taken by police
officers during interrogations are, under the Court’s formulation, testimonial. The Court listed
business records and statements in furtherance of a conspiracy as non-testimonial.
Turning to the facts, because the recording offered at trial was made to the police during an
interrogation, the Court held it was testimonial. And because the defendant had not had an
opportunity to confront the witness, the Court held that the Confrontation Clause rendered the
wife’s statement inadmissible.
Testimonial Hearsay
Non-Law Enforcement Interrogator
U.S. Court of Appeals Cases
Gov’t of the Virgin Islands v. Vicars, No. 08-3960, 2009 WL 2414378 (3d Cir. Aug. 7, 2009)
(unreported)
At a trial for aggravated attempted sexual assault, the court admitted a doctor’s report conducted
at the request of police officers “for the evaluation for alleged sexual molestation/abuse” and “for
the purpose of providing medical evidence and documentation.” The report contained graphic
details of vaginal bruising. There were objections to the report, but the “nature of Vicars’s
objections, the Government’s shifting bases for admissibility, and the trial court’s tentative and
conflicting rulings on the matter were unclear, if not altogether confusing.”
On direct appeal, the Court of Appeals found plain error and ruled that the report was testimonial
because it was prepared “under circumstances that would lead an objective witness reasonably to
believe that it would be used prosecutorially,” noting the reason it was drafted. The error was
not harmless because the report was the only evidence of penetration.
Federal District Court Cases
Johnson v. Oregon Board of Parole and Post-Prison Supervision, No. CV. 09-701-MA, 2011
WL 1655421 (D. Or. May 2, 2011)
At trial for sexual penetration of a minor, the court admitted statement the complainant made to
Child Abuse Response and Evaluation Services (CARES) health care workers. The complainant
did not testify. After the defendant’s case on direct appeal had been decided, but before it
became final, the Supreme Court decided Crawford v. Washington, 541 U.S. 36 (2004).
The defendant petitioned for a writ of habeas corpus alleging that the state’s decision was
contrary to Crawford. The District Court granted the petition, holding that, based on state court
Successful Crawford Cases 12 Habeas Assistance and Training
August 2012
case law, statements to CARES workers were testimonial hearsay. Note that Greene v. Fisher,
__ U.S. __, 132 S. Ct. 38 (2011) would foreclose relief for similarly situated petitioners.
State Court Cases
Miller v. State, 717 S.E.2d 179 (Ga. 2011)
Statements made in verified petitions for domestic violence protective injunctions are testimonial
hearsay because the statements were made for potential use in a criminal case. Thus, allowing
the judge who received the petitions read them to the jury violated the defendant’s right to
confront the non-testifying complainant who verified the petitions.
State v. Beecham, No. 2009-KA-00251-COA, 2011 WL 5027239 (Miss. 2011) (unreported)
A statement of cause of death on a death certificate is testimonial hearsay and inadmissible
absent the opportunity to cross-examine the person making the finding. Thus, the trial court’s
admission of the cause of death in a driving under the influence causing death case was
prejudicial error where the cause of death listed brunt-force trauma from an automobile as the
cause. The court concluded, but did not discuss, that the person making the determination would
have reasonably expected the cause of death determination to be used in litigation. Reversed.
State v. Bennington, 264 P.3d 440 (Kan. 2011)
The statements of the complainant victim’s statements to a sexual assault nurse examiner
(SANE) were testimonial hearsay because the SANE was answering questions prepared by the
Kansas Bureau of Investigation and mandated by Kansas law. The interaction also took place in
the presence of a law enforcement officer. Moreover, the questions pertained to past events, not
the present condition of the victim. Thus, they were more likely to have been taken for
investigative, rather than medical or emergent, purposes. Reversed.
State v. Clark, No. 96207, 2011 WL 6780456 (Ohio Dec. 22, 2011)
At trial for child abuse, the court admitted the statements the complaining child made to his
teachers, a social worker, and the police. The child was held incompetent to testify and was
never cross-examined by the defendant.
The appellate court reversed. It held that the admitted portions of the child’s statements to the
social worker and the police were collected for investigative, rather than medical, purposes and,
citing Ohio precedent, found them testimonial. The court also concluded that the statements to
the teachers were testimonial hearsay. It emphasized the teachers’ role as a mandatory reporter
and the teachers’ testimony about their concern at the time of the questioning that criminal
activity was taking place.
Green v. State, 22 A.3d 941 (Md. Ct. Spec. App. 2011)
Successful Crawford Cases 13 Habeas Assistance and Training
August 2012
The complainant’s statements made to a sexual assault forensic examiner (SAFE) nurse were
testimonial hearsay, and their admission violated the defendant’s right to confrontation. The
appellate court emphasized several critical points: when the victim made the statements, she had
already been treated by other medical personnel; a police officer specifically sought out a SAFE
nurse to conduct the examination for the purpose of collecting evidence; and the statutory
description of SAFE nurses refers to a investigative function.
D.G. v. State, 76 So.3d 852 (Ala. Crim. App. 2011)
At a delinquency adjudication, the court admitted and reviewed a DVD of a forensic examiner
from the Alabama Child Advocacy Center interviewing the complaining witness, who did not
testify.
The Court of Criminal Appeals reversed. It held that because the statements were made to
“verify past incidents in order to aid in a criminal investigation,” they were testimonial hearsay
and should not have been admitted. Reversed.
State v. Gurule, 256 P.3d 992 (N.M. Ct. App. 2011) cert. granted State v. Gurule, 266 P.3d 633
(N.M. June 8, 2011) (table)
A couple was charged with possession of child pornography. After law enforcement had
executed a search warrant for pornographic material, but before trial, the co-defendant wife
informed her son that she had caught defendant husband viewing child pornography on the
computer. The co-defendant wife did not testify, but the son would have testified to the
statement.
The New Mexico Court of Appeals held that the statement made to the son was testimonial
hearsay. It noted that making the statement when she did, after a search warrant had been
executed, made it objectively reasonable for her to believe that the statement she made to her
son would be used in a criminal investigation or prosecution. Suppression order affirmed.
Kelly v. State, 321 S.W.3d 583 (Tex. App. 2010)
At trial, the court admitted testimony from a social worker that she was “informed” that the
complainants had reported and were subjected to various forms of sexual assault. Several of the
social worker’s sources testified, but the social worker had conducted interviews of additional
nontestifying witnesses and presented information that was not presented by any other witness.
The appellate court held that the information presented violated the Confrontation Clause
because the information could have been based only on what the nontestifying witnesses told
her. The erroneous admissions were non-harmless because they were the unique source of the
information. Reversed.
State v. Arnold, 933 N.E.2d 775 (Ohio 2010)
Successful Crawford Cases 14 Habeas Assistance and Training
August 2012
At trial for sexual assault of a child, the court admitted a child advocate’s testimony about what
the complainant told her. The appellate court held that the interview resulted in both testimonial
and nontestimonial statements and that the nontestimonial statements were admissible. It held
that the interview had a dual purpose: medical and forensic. Thus the statements that “likely
were not necessary for medical diagnosis or treatment” were testimonial and inadmissible.
Reversed.
State v. Carper, 41 So.3d 605 (La. Ct. App. 2010)
At trial for sexual assault of a child, the court admitted the videotaped interview, conducted by a
social worker, of the nontestifying complainant who had never been subjected to crossexamination. The appellate court reversed, holding that the statements were testimonial and their
admission violated the Confrontation Clause. The error was not harmless because the interviews
were “the linchpin of the prosecutor’s case.” Reversed.
Laymon v. Commonwealth, No. 2008-CA-001626-DG, 2010 WL 668656 (Ky. Ct. App. Feb. 26,
2010) (unreported)
At trial, the court admitted the testimony of the complainant’s mother, the mother’s boyfriend,
and a deputy sheriff about what the complainant told each of them. Even though the mother and
boyfriend were not members of the prosecution team, the appellate court reversed, holding that
the statements were testimonial because they were not made during an ongoing emergency and
were in “an effort to facilitate criminal prosecution.” Reversed.
In re D.K., 924 N.E.2d 370 (Ohio Ct. App. 2009)
At a juvenile’s trial for habitual disobedience, a principal testified to the content of unadmitted
school records authored by a nontestifying witness. The appellate court ruled that school
disciplinary reports are testimonial evidence because they are “accusatory, and at a minimum,
were created for use in further disciplinary proceedings.” The court noted that it “might
reasonably be expected that such documents would be used in” juvenile court proceedings.
Because the records were the only evidence of a necessary element of the crime charged, the
admission was prejudicial. Reversed.
People v. Vargas, 100 Cal. Rptr. 3d 578 (Cal. Ct. App. 2009)
The complainant’s statements during a sexual assault examination were inadmissible testimonial
hearsay for four reasons: (1) the examiner acted “in an agency relationship with law
enforcement, telling the complainant the results of the exam would be “released to law
enforcement,” (2) the statements were “out-of-court analogs” to testimony because they were
made in response to a “rigorous, statutorily mandated format designed to have [the complainant]
describe the specific sexual acts,” (3) the exam described “past acts,” not an ongoing emergency,
and (4) even though the questions were relevant to medical treatment, the “primary purpose of
questioning [the complainant] was . . . gathering evidence . . . for possible use in court.”
Reversed.
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August 2012
State ex rel. Juvenile Dep’t of Multnomah County v. S.P., 215 P.3d 847 (Or. 2009)
Statements the complainant child made to Child Abuse Response Services were testimonial
hearsay. Although the statements were made to medical personnel, those personnel were acting
at the behest of the police. Thus, the interview was for the “dual purpose” of medical evaluation
and police investigation. The statements recounted what the abuser did, who did it, and how
many times he did it. They were also made in a “formal setting” and in response to “structured
questioning,” both suggesting they were testimonial statements.
Hartsfield v. Commonwealth, 277 S.W.3d 239 (Ky. 2009)
At trial for sexual assault, the court admitted the nontestifying complainant’s statements to a
Sexual Assault Nurse Examiner (SANE Nurse).
The Kentucky Supreme Court reversed. It held that the SANE Nurse’s interview of the
complainant was the functional equivalent of a police interview and produced testimonial
hearsay. The court emphasized the SANE Nurse’s cooperation with the police, her role as an
investigator, as defined by state statute, and the structured nature of the inquiry.
Harris v. Commonwealth, No. 2007-CA-001152-MR, 2009 WL 350615 (Ky. Ct. App. Nov 18,
2009) (unreported)
At trial, the court admitted the nontestifying complainant’s statements made to a social worker
during the course of the social worker’s investigation into the abuse of the child.
The appellate court reversed. With little explanation, it held that statements made during the
course of a social worker’s investigation of abuse were testimonial hearsay.
Commonwealth v. Depina, 899 N.E.2d 117 (Mass. Ct. App. 2009) (table decision)
The identification of the defendant by the nontestifying complainant was testimonial hearsay
because statements about who caused the injury, although made to a firefighter, would
reasonably be assumed to be used for the investigation and prosecution of a crime. It is
somewhat noteworthy because the statement was not made to an agent of the prosecution.
Because the statements were made in the safety of the firestation, away from the scene of the
crime, they were not to resolve an ongoing emergency. Reversed.
In re: T.T., 892 N.E.2d 1163 (Ill. App. Ct. 2008)
Statements made to the investigating police officer were testimonial where the statements were
in response to specific, rather than open-ended questions; the witness “knew why she was there”
at the police station being interviewed, and after the interview the prosecution filed its
indictment.
Notwithstanding the “neutral location” of the witness’s home, the open-ended questions, the
absence of police, the occurrence of the interview prior to filing charges, and the declarant’s
young age, her statements made to a social worker were also testimonial where the statements
were made in an interview that focused on whether the person might “bear witness” against the
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August 2012
defendant. Likewise, statements about the identity of the perpetrator made to a doctor were
testimonial because the identity of the perpetrator is not necessary for medical treatment.
Reversed.
State v. Cannon, 254 S.W.3d 287 (Tenn. 2008)
Statements made to a sexual assault nurse examiner were, in this case, testimonial. The court
noted that the nurse was trained by law enforcement agencies and described her interview of the
complainant as an “interrogation” because the interview was structured and the complainant had
already received treatment for her injuries when the nurse spoke with her. Because other errors
required reversal, the court did not determine whether the erroneous admission of the testimonial
statements was harmless. Reversed.
State ex rel. Juvenile Dep’t of Multnomah County v. S.P., 178 P.3d 318 (Or. Ct. App. 2008)
At a juvenile delinquency proceeding, the court admitted statements the complainant made
during an interview with a team consisting of medical and law enforcement personnel at a child
advocacy center. Even though the statements were made in response to questions that medical
personnel would have asked for the purposes of a medical exam, the appellate court held that the
statements made during the interview were testimonial because, in light of the following factors,
one purpose of the examination was to provide information relevant to a prosecution, not simply
provide medical treatment: (1) the purpose of the child advocacy center receives the majority of
its referrals from law enforcement in an attempt to limit the number of interviews required in a
child abuse investigation, (2) the personnel at the center receive training that goes beyond typical
medical training, (3) the child’s parents do not receive the full evaluation that is given to law
enforcement, and most importantly (4) law enforcement involvement in the center is “pervasive.”
The court distinguished a pediatrician, subject to mandatory reporting of abuse, who does not
routinely seek and obtain information with the “conscious concurrent purpose of preserving that
information to assist possible future prosecutions.” Reversed.
State v. Hooper, 176 P.3d 911 (Idaho 2007)
While the defendant’s direct appeal was pending, Crawford and Davis were decided. Applying
the new rules stated therein, the Idaho Supreme Court held that a child victim’s statements to a
forensic nurse examiner at a STAR center were testimonial hearsay. Employing a totality of the
circumstances test, the court noted that the interview was to establish past facts, the examiner did
not ask questions about the complainant’s treatment, a medical assessment had already been
completed, and the lack of an ongoing emergency. It also noted statements the officers made to
the defendant, asking him if there was anything he wanted to explain in light of there having
been an interview. Reversed.
Rankins v. Common wealth, 237 S.W.3d 128 (Ky. 2007)
Prior to trial for assault, the prosecution moved to admit statements made by the victim to the
officers responding the 911 call and to hospital personnel. The victim was not available to
testify. The trial court did not admit the evidence because it was hearsay and rejected the
Successful Crawford Cases 17 Habeas Assistance and Training
August 2012
prosecution’s argument that they were excited utterances and dismissed the case. The
intermediate appellate court reversed, holding that the statements were, in fact, excited
utterances. The state Supreme Court held that the statements were testimonial hearsay because
they relayed “what happened,” not what “is happening.” It held that because the statements were
testimonial hearsay, they were inadmissible “regardless of whether they fall under the ‘excited
utterance,’ or any other hearsay exception.” Reversed.
State v. Henderson, 160 P.3d 776 (Kan. 2007)
At trial, the court admitted the videotaped joint interrogation of a nontestifying three-year-old
child by a sheriff deputy and a member of the Social and Rehabilitation Services. During the
interrogation, the child stated that the defendant raped and sexually molested her.
The Kansas Supreme Court, relying on Davis, clarified the rule in Crawford. To determine
whether a statement is testimonial, it examines the totality of the circumstances, including
whether the person making the statement would reasonably believe that the statement would be
used in a prosecution. It explicitly rejected the American Prosecutors Research Institute’s
proposal suggesting that where a child does not understand the significance of court proceedings,
those statements are nontestimonial. It held instead that the witness’s awareness that the
statement made be used to prosecute is one factor among others to determine whether the
“primary purpose of the interview” is to obtain information to be used in a prosecution. The
court concluded that the interrogation in question was for that purpose and that it should have
been excluded. The court emphasized the formality of the interview, the involvement of the
sheriff’s department, and the emphasis on the defendant throughout the interview. It rejected the
state’s argument that there was an ongoing emergency, noting that the child was recounting past
events and was calm. The court also found the error was not harmless and reversed.
People v. Stechly, 870 N.E.2d 333 (Ill. 2007)
At trial, the court admitted, over the defendant’s “reliability” and “trustworthiness” objection
statements of a nontestifying witness made to “mandated reporters” in interviews conducted to
gather information to be passed on to prosecuting authorities. The defendant had allegedly
instructed the complainant not to inform her mother about the incident.
In a lengthy and detailed opinion, the Illinois Supreme Court held that the statements were
testimonial and reversed. The court held that the defendant’s objection, couched in the language
of Roberts v. Ohio was sufficient to preserve the Confrontation Clause issue because Crawford
was decided after the trial. It also held that Crawford would be applied retroactively to cases
pending on appeal because the rule in Crawford was a new rule of criminal procedure.
The state argued that the defendant had forfeited any Confrontation Clause argument based on
his instruction to the complainant not to tell her mother about the incident. The court held that
the forfeiture by wrongdoing doctrine included an intent element requiring the state to show by a
preponderance of the evidence that the defendant committed a wrongdoing with the intent to
Successful Crawford Cases 18 Habeas Assistance and Training
August 2012
prevent the witness from testifying. The court held that the defendant’s alleged instructions to
the complainant warranted an evidentiary hearing on remand.
The court turned to the merits of the defendant’s Confrontation Clause claim. Noting that the
right of confrontation arose in a time period that used private prosecution for criminal cases, the
court rejected the state’s effort to limit “testimonial” statements to those made to government
personnel. It also held that in the context of private interrogation, the question is whether the
declarant intends for the statement to be used against the defendant; the questioner’s intent, in
that circumstance, is irrelevant. This issue was addressed by Michigan v. Bryant, discussed
supra.
The court also held that the age of the declarant is a relevant “objective circumstance” to be
considered to determine whether a declarant intended a statement to be used prosecutorially. It
held that the younger a child is, the less likely they are to understand how their statement will be
used, and, thus, they are less likely to make a testimonial statement. The court did not address
whether this would make the child incompetent to offer evidence.
The mandated reporters were acting on the behalf of the prosecution for the purpose of gathering
information relevant to prosecution and, therefore, statements made to them were testimonial
hearsay. “Mandated reporters” are persons with a legal obligation to report to authorities any
cause to believe a child has been abused or neglected and to “testify fully in any judicial
proceeding resulting from such report.” The court emphasized that their status “merely . . .
supports” the conclusion that they were acting for “no other purpose than to obtain information
to pass on to authorities” and was not determinative.
In re S.R., 920 A.2d 1262 (Pa. Super. Ct. 2007)
At trial for indecent assault, over a defense objection, the court admitted statements made by the
unavailable complainant to a “forensic specialist.” The specialist interviewed the complainant in
a manner similar to “direct examination in court” and after conferring with the police, who
observed the examination through a one-way mirror.
The appellate court held that the purpose of the specialist’s interview was to obtain information
to assist in the prosecution of the defendant and, thus, produced testimonial statements.
Reversed.
State v. Romero, 156 P.3d 694 (N.M. 2007)
At trial, the court admitted the testimony of a Sexual Assault Examiner, recounting the
nontestifying complainant’s statements describing in detail the defendant’s sexual assault on her.
On appeal, the state argued that the statements were made for the purposes of medical treatment,
not for prosecuting the defendant.
The state supreme court disagreed and reversed the trial court. It held that the statements were
recounting past facts, provided for the purposes of prosecution the defendant, not to address an
Successful Crawford Cases 19 Habeas Assistance and Training
August 2012
ongoing emergency. The court emphasized that the complainant met with the examiner at the
prompting of a police officer and the statements introduced specifically identified the defendant
and accused him of sexual assault.
People v. Mileski, No. 248038, 2007 WL 28288 (Mich. Ct. App. Jan. 4, 2007) (unreported)
At trial, the court admitted the testimony of three witnesses, each of whom offered the statements
of the nontestifying complainant. The first was the complainant’s neighbor, who testified that
the complainant made statements to her describing the alleged sexual assault in broad terms
immediately after her flight from the scene. The second witness was the reporting officer who
reported a more detailed description of the alleged incident that the complainant provided while
still “shaking and trembling” after the alleged incident. The third witness was a “nurse
specializing in sexual assault examinations” who testified in the most detail about the allegations.
The court of appeals held that the latter two witnesses recounted testimonial hearsay. “[E]ven if
[the] remarks qualified as excited utterances or some other form of excepted hearsay,” they were
not admissible under the Confrontation Clause because the complainant was no longer trying to
address an emergency. She was providing information to “create a record to be used against the
defendant.”
Hernandez v. State, 946 So.2d 1270 (Fla. Dist. Ct. App. 2007)
At trial, the court admitted, over defense objection, the testimony of a nurse employed as part of
a Child Protection Team (CPT), who recounted statements of the nontestifying complainant and
her nontestifying parents. The nurse interviewed the complainant after obtaining basic
information from the investigating officer and testified that she regularly testified about the
sexual assault examinations of children she performs in her capacity as a member of the CPT.
She testified as to the complainant’s version of the events and that, based on a physical
examination, the complainant may have suffered sexual abuse. She also testified that the
complainant’s parents told her the date on which the incident occurred.
The appellate court held that because the nurse was acting as an agent of the police when she
interviewed the complainant, the complainant’s statements to her were testimonial hearsay. The
court emphasized the statutorily defined role of the CPT nurse, including her duty to testify, to
assist in cases, and to provide forensic interviews. It also emphasized the involvement of law
enforcement in arranging the interview, the nurse’s use of a checklist of types of abuse that
“were . . . calculated to produce a list of specific acts of sexual abuse that a prosecutor might use
to prepare one more charges,” and the absence of any ongoing emergency at the time the
statements were made.
People v. Sharp, 155 P.3d 577 (Colo. App. 2006)
At trial, the complainant child was called to testify, but was unable to proceed and was not
subjected to cross-examination. Instead, a videotaped interview by a “private forensic examiner”
was admitted, without objection, as evidence. During the defendant’s first appeal, he succeeded
Successful Crawford Cases 20 Habeas Assistance and Training
August 2012
on a sentencing issue. After remand, but before his second appeal, Crawford was decided. The
appellate court applied Crawford to the unobjected to evidence.
The appellate court applied a two-part test to determine whether the interview was the functional
equivalent of a police interrogation, and thus produced testimonial hearsay: 1) whether and to
what extent government official were involved in producing the statements and 2) whether their
purpose was to develop testimony for trial. Because the police arranged and “to a certain extent,
directed” the interview, and because the purpose of the interview was to obtain statements to be
presented at trial, the court held that the interview was the functional equivalent of police
questioning and that the complainant’s statements were testimonial, even though the officer was
not present during the interview and even though the complainant said she did not know why she
was being interviewed.
State v. Justus, 205 S.W.3d 872 (Mo. 2006)
Prior to trial for sexual abuse of a minor, the defense moved to exclude two statements by the
nontestifying complainant child. The statements were made to forensic interviewers, and the
second interview was videotaped. The trial court admitted both statements, including the
interview, after finding the statements admissible under Roberts, Crawford, and a state
evidentiary rule allowing child complainant statements under certain circumstances in child
abuse cases. The trial court also admitted the complainant’s hearsay statements made to her
mother and grandmother. The statements covered much of the same material, and the appellate
court ruled these statements were nontestimonial and admissible.
The Missouri Supreme Court ruled the statements to the forensic examiner were testimonial
hearsay. Noting that this case was the first “requiring this Court to apply Crawford and Davis to
child victim hearsay admitted under [state evidentiary code] section 491.075,” the court ruled the
statements made to both the forensic interviewers were testimonial. Even though one
interviewer did not work for the state, the court found the statements made in response to her
questioning testimonial because she was “acting as a government agent” when she interviewed
the complainant. The court also noted the “formal setting in a question and answer format” of
both interviews. They had taken place in examination rooms and as part of the police
investigation. Despite the other testimony, admitting the statement was not harmless beyond a
reasonable doubt because of the “experience and training” of the forensic interviewers and
because the erroneously admitted videotaped interview, which directly implicated the defendant.
People v. Walker, 728 N.W.2d 902 (Mich. Ct. App. 2006)
At trial, the court admitted three sets of statements made by the nontestifying complainant; each
were admitted as excited utterances and without a Confrontation Clause objection. The first was
a statement made during the complainant’s neighbor’s 911 call. The complainant had run to the
neighbor’s house in seek of help. During the 911 call the neighbor conveyed the complainant’s
account of where the alleged assault took place, whether others in that location were at risk, and
Successful Crawford Cases 21 Habeas Assistance and Training
August 2012
a description of her injuries. The appellate court ruled that these statements were made to meet
an ongoing emergency and were not testimonial.
The second set of statements were made in the form a written statement, made at the direction of
and with the help of the complainant’s neighbor. The third set were statements to the police,
who had responded to the scene. The appellate court ruled that both the second and third sets of
statements were testimonial hearsay. The court noted that “portions of these statements could be
viewed as necessary for the police to assess the present emergency . . . ‘the primary, if not indeed
the sole, purpose of [this] interrogation was to investigate a possible crime.” The majority found
that the unpreserved error was not harmless. The dissent would have held that, based on
Crawford, a hearsay objection preserved Confrontation Clause errors as a matter of federal law.
State v. Pitt, 147 P.3d 940 (Or. Ct. App. 2006)
At trial, the court admitted video of statements by the nontestifying children complainants. The
statements were made during the course of interviews at the Lane County Child Advocacy
Center, which provides physical exams, conducts interviews, and makes referrals for treatment.
The interviews are “forensic” and the center helps “coordinate interview participation among law
enforcement, child protection services and prosecutors.” The complainants were referred to the
center by the police.
The appellate court found that admission of the video was plain error. In finding that the
statements were testimonial hearsay, the court emphasized the interviewer’s testimony that the
“whole idea” of the center is obtaining statements that can be used in the course of a prosecution.
The court also found that the “error sufficiently grave to warrant the exercise of . . . discretion to
correct it” because all of the evidence against the defendant “derived from statements of the two
girls, whose credibility was the linchpin of the case.”
State v. Hooper, No. 31025, 2006 WL 2328233 (Ohio Ct. App. Aug. 11, 2006) (unreported)
The trial court admitted videotaped statements of the complainant child-witness, who the judge
had found unavailable. The statements were made in response to structured interview questions
asked by a nurse who worked at a Sexual Trauma Abuse Response Center. The interview was
arranged by the police and took place at the Center several hours after the incident.
The appellate court held that it was error to admit the video and the statements. Finding the
statements testimonial, the court emphasized that were made several hours after the alleged
events, outside the presence of the alleged perpetrator, in a safe environment, and during a
formal, structured interview. It noted that the nurse initiated the interview with questions about
whether the complainant understood the difference between the truth and a lie and asked other
questions similar to those one would expect during a direct examination. The court also found
that the non-governmental interviewer acted as the functional equivalent of a police interrogator.
The court rejected the state’s argument that because of the age of the complainant, six years old,
she would not understand that her statements would be subject to later use at trial. Applying
Successful Crawford Cases 22 Habeas Assistance and Training
August 2012
Davis, the court held that it is the circumstances of the interview, not the expectations of the
declarant, that are controlling. This position may need to be distinguished somewhat from
Michigan v. Bryant, discussed supra.
Flores v. State, 120 P.3d 1170 (Nev. 2005)
At trial for murder by child abuse, the court admitted the statements of the defendant’s
nontestifying child. The statements were made to a Las Vegas Police Department investigator, a
Child Protective Services investigator, and the child’s foster mother. The statements were the
“only direct poof in support of the State’s theory of murder by child abuse.” The defendant
provided the police with a statement that was corroborated by the evidence at the scene. The
child’s statements indicated that the victim wet her pants, the defendant hit her, took her to the
shower and hit her again, and that she slipped and hit her head after being hit the second time.
After the second strike, the defendant gave the victim “some medicine,” and the victim never
woke up.
The appellate court reversed. It adopted a case-by-case, “reasonable person” test to determine
whether “an objective witness [would] believe that the statement would be available for use at a
later trial,” and was thus testimonial hearsay. It found that the statements to Child Protective
Services and to the Police Department investigator were testimonial because “both were either
police operatives or were tasked with reporting instances of child abuse for prosecution.” The
statement to the foster mother was not testimonial because it was made “spontaneously at home
while [the foster mother] was caring for the child.”
People v. Herring, No. A104624, 2005 WL 958220 (Cal. Ct. App. April 27, 2005) (unreported)
At trial for sexual assault, attempted murder, assault, and murder, the trial court admitted the
testimony of a sexual assault nurse who had interviewed the victim at the hospital. The purpose
of the interview was “evidence collection.”
The appellate court reversed. It held that the statements made to the nurse were testimonial
hearsay because of the purpose of the interview. The court noted the nurse’s use of a form
created by the police, that the examination took place after police referral, and the lack of any
ongoing medical or legal emergency at the time of the interview.
State v. Snowden, 867 A.2d 314 (Md. 2005)
At trial for child abuse, the court admitted the statements the nontestifying complainant children
made to a social worker. The complainants informed the social worker that they knew why they
were being interviewed, and the trial court admitted the statements under Maryland’s “tender
years” statute allowing a child’s statement to a medical or social work professional upon a
showing of “specific guarantees of trustworthiness.
The appellate court, in light of Crawford v. Washington, 541 U.S. 36 (2004), reversed. The court
explained that the test for determining whether a statement is testimonial is “whether the
statements were made under circumstances that would lead an objective declarant reasonably to
Successful Crawford Cases 23 Habeas Assistance and Training
August 2012
believe that the statement would be available for use at a later trial.” Finding that the statements
“in every way the functional equivalent of formal police questioning,” the court emphasized that
the interview was conducted at the behest of the police, the statements were made after the
complainants had talked to the police, and that the complainants understood that their statements
would be used against the defendant. It also noted the purpose of the interviewer’s job: “as
interviewer and ultimate witness for the prosecution.”
People v. West, 823 N.E.2d 82 (Ill. App. Ct. 2005)
At trial for sexual assault, the court admitted the complainant’s statements to medical personnel
regarding the identity and fault of her attacker.
The appellate court reversed holding that the statements were testimonial hearsay. It contrasted
statements about identity and fault from statements concerning the cause of the symptoms and
pain.
In re Welfare of J.K.W., No. J80350751, 2004 WL 1488850 (Minn. Ct. App. July 6, 2004)
(unreported)
At trial for aiding and abetting terroristic bomb threats, the court admitted a recording made by
one of the defendant’s friends. The recording was made at the suggestions of the investigating
police officer and contained statements by the defendant and her friend.
The appellate court reversed, holding that because the police officer suggested that the recording
be made, the statements were made under circumstances in which a reasonable person would
believe that they would be used in a criminal prosecution.
State v. Sisavath, 12 Cal. Rptr. 3d 753 (Cal. Ct. App. 2004)
At trial for sexual abuse of a minor, the court admitted the videotaped statement of the minor
after finding that she was incompetent to testify. The interview was conducted by a forensic
examiner and the County’s “Multidisciplinary Interview Center,” (MDIC) designed for the
interview of children suspected of being victims of abuse. While the defendant’s appeal was
pending, the Supreme Court decided Crawford.
The appellate court reversed. It held that admission of the videotaped statement of the minor
violated the defendant’s Confrontation Clause rights. It rejected the state’s argument that the
statements were not testimonial because the interviewer was not a government employee, the
center constituted a neutral location, and the interview might have a therapeutic purpose. It held
that the question is “whether an objective observer would reasonably expect the statement to be
available for use in a prosecution.” Because the interview was conducted by a person trained in
forensic training, was attended by the prosecutor, and took place after the prosecution was
initiated, it was “eminently reasonable” that the interview would be available for use at trial.
People v. Cortes, 781 N.Y.S.2d 401 (N.Y. Sup. Ct. 2004)
Successful Crawford Cases 24 Habeas Assistance and Training
August 2012
At trial, the judge excluded the 911 tape of a nontestifying witness and authored a lengthy
opinion explaining why statements made during 911 calls are not admissible under Crawford.
This decision abrogated by Davis, discussed supra.
Ongoing Emergencies
State Court Cases
State v. Samuela, 158 Wash. App. 1011 (Wash. Ct. App. 2010)
At trial for domestic violence, the court admitted a recording of the 911 call placed by the
nontestifying complaining witness. The first part of the call addressed whether the caller was in
immediate danger. At the end of this part the caller explains that the alleged perpetrator rode
away on his bike. The remainder of the call focused on the identity of the alleged perpetrator
and the details of the allegations. The trial court held the entire call was nontestimonial.
The appellate court reversed. It held that once the 911 operator learned that the caller was not in
danger and that the alleged perpetrator had ridden away, any emergency had subsided and the
call became an interrogation, producing testimonial statements.
State ex rel. A.M., Jr., No. FJ-20-2041-08, 2010 WL 5487497 (N.J. Super. Ct. App. Div. Oct.
25, 2010) (unreported)
At a delinquency hearing related to a robbery, the court admitted the nontestifying complainant’s
statements identifying the defendant as the perpetrator. The statements were made to the
investigating police officer at the scene of offense. The victim was bleeding profusely and made
the statement, according to the trial and appellate court, without deliberation or reflection.
The appellate court reversed, holding that even though the statement was an excited utterance, it
was testimonial hearsay because it was the product of police interrogation and was not to quell
an ongoing emergency, as the defendant had already been arrested.
State v. Basil, 998 A.2d 472 (N.J. 2010)
At trial for possession of a shotgun, the court admitted testimony from officers about a statement
a nontestifying witness made to them. They testified that the witness/declarant returned to the
scene of the arrest and informed them that the defendant was the one with the shotgun and that
he had pointed it at her. The appellate court held that the statement was not made pursuant to an
“ongoing emergency,” emphasizing that the witness returned to the scene, that the defendant was
no longer armed and had been detained, and that the identification was after the fact, not
contemporaneous with the crime. Reversed.
People v. Wisdom, No. 289232, 2010 WL 2134287 (Mich. Ct. App. May 27, 2010) (unreported)
At trial for failing to properly register as a habitual sex offender, the court admitted the statement
of the defendant’s nontestifying co-habitating girlfriend. Her statement was to a testifying police
Successful Crawford Cases 25 Habeas Assistance and Training
August 2012
officer and suggested that the defendant had moved. The appellate court held that the statement
was testimonial because it described past events. It rejected the state’s argument that because the
defendant was still allegedly committing the crime (not registering his move), there was an
ongoing emergency. Reversed.
Garfield Heights v. Winbush, 931 N.E.2d 1148 (Ohio Ct. App. 2010)
At trial for fleeing and alluding the police in a vehicle, the court admitted the statement of a
nontestifying witness made to a police officer. The statement identified the defendant as the
person she had loaned her car. The appellate court held that the statements were testimonial
because the ongoing emergency, the defendant’s alleged flight, was over and the statements were
the product of police questioning. The admission was not harmless because the prosecution’s
case largely rested on the witness’s hearsay testimony, and her credibility was the “pivotal issue
in the case.” Reversed.
Wilder v. Commonwealth, 687 S.E.2d 542 (Va. Ct. App. 2010)
A nontestifying witness’s 911 call reporting an ongoing felony was testimonial, was not a report
of an ongoing emergency, and was inadmissible for two reasons: (1) the witness was not in
danger while reporting the incident and (2) the call was intended to provide a narrative, rather
than address an emergency because the witness was not frantic and attempted to call the
company being broken into prior to calling 911. Reversed.
People v. Lloyd, No. 277172, 2009 WL 4827440 (Mich. Ct. App. Dec. 15, 2009) (unreported)
The 911 call identifying the defendant as the perpetrator and admitted at trial was testimonial for
several reasons: (1) the caller used the past tense to provide information helpful for the police
investigation, not to describe an ongoing emergency, (2) the statement was made two hours after
the incident, and (3) the caller primarily focused on identifying the perpetrator. The appellate
court declined to rule on whether an identification during an ongoing emergency would be
testimonial. It also rejected the argument that the defendant being at large constituted an
emergency. Reversed.
State v. Beacham, No. 04-12-2830, 2009 WL 2146392 (N.J. Super. Ct. App. Div. July 21, 2009)
(unreported)
At trial for murder, the court admitted a nontestifying witness’s statement to the investigating
police officer. The witness, as soon as the officer arrived, said that two men shot his friend and
fled through the back window. Later, also at the scene, he described the burglary he and his
friend had interrupted. The appellate court held that the later statements, also made to the police,
were testimonial hearsay. It held that they were inadmissible, even though they were excited
utterances, because they primary purpose was to aid in the investigation. Unlike the first
statement, they were made after the emergency was under control. The court, prior to analyzing
the Confrontation Clause claim, concluded that the conviction had to be reversed and, therefore,
did not discuss harmlessness. Reversed.
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State v. Koslowski, 209 P.3d 479 (Wash. 2009)
The state failed to meet its burden to prove that a nontestifying witness’s statements to the
police, who were responding to a 911 call, were nontestimonial for several reasons: 1) the
statements recounted past events—her description of the crime—instead of contemporaneous
observations, and 2) despite the witness being “distraught” and the perpetrators being armed and
at large, there was no indication that an emergency existed; there was no apparent risk of the
perpetrators’ return. Crawford was decided while the appeal was pending, so the trial record
included information relevant to Roberts, but not Crawford. Therefore, the burden of proving
that the statements were nontestimonial being on the state was an important factor in the case.
Reversed.
State v. Lucas, 965 A.2d 75 (Md. 2009)
At trial for a domestic violence offense, the court admitted statements the nontestifying
complainant made to the responding officer. The statements were made while the complainant
was visibly upset, but in the absence of the defendant and in response to the officer’s inquiry
about what happened and where she got her injuries.
The Maryland Supreme Court affirmed the Court of Appeals’ reversal of the conviction. It held
that the statements were testimonial hearsay because any emergency had subsided when the
police arrived (the defendant was secure and with another police officer; no call for medical help
was placed) and because the officer explained that his questions and the complainant’s responses
were part of his investigation.
Tubbs v. State, No. CACR 08-580, 2008 WL 5423897 (Ark. Ct. App. Dec. 31, 2008)
(unreported)
The nontestifying complainant’s statement to the reporting officer that the defendant had been
hitting and kicking her all day and would not allow her to use the phone or leave the motel room
was testimonial evidence because the statements described past events and were not conveyed
during an ongoing emergency since the defendant was asleep. The error was not harmless
because without the statements, “the remaining evidence fails to support” the charged offense.
Reversed.
Cuyuch v. State, 667 S.E.2d 85 (Ga. 2008)
The nontestifying complainant’s statement at the scene identifying the defendant as the
perpetrator was testimonial hearsay because it was “clear” that the primary purpose of the
identification was for future prosecution, even though other statements made at the scene, such
as describing how the defendant stabbed him, were made to address the ongoing medical
emergency. Even though both statements were made in the course of the same interview, the
court distinguished the purpose of making the separate statements.
The court also found that a nontestifying witness’s statement about who committed a crime and
where the weapon was, made at the scene of the crime with the unarrested suspect present and
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August 2012
with the victim’s status unknown was testimonial because the statements described past events
and provided evidence against the suspect. They were not part of an attempt to resolve an
ongoing emergency because it was unclear whether the declarant was trying to obtain aid for the
victim and because the suspect was sitting calmly watching television. Reversed.
In re: J.A., 949 A.2d 790 (N.J. 2008)
Statements made to a police officer a mere ten minutes after a crime was completed and shortly
after the declarant stopped following the alleged perpetrators are testimonial statements because
the statement relayed past events in response to a police officer’s questions. Neither the officer’s
open-ended questions nor the witness’s volunteering the information “change[s] the calculus” of
whether the statements were testimonial. The court rejected the state’s argument that the suspect
being at large, where s/he poses no threat to the victim, makes the statements part of resolving an
ongoing emergency. Reversed.
Allen v. Commonwealth, No. 2006-SC-000407-MR, 2008 WL 2484952 (Ky. June 19, 2008)
(unreported)
911 calls made after the victim died were not in response to an ongoing emergency where the
calls were made by parties who knew of the death and were relaying past events and theories of
culpability. The Confrontation Clause violation, cumulative with an evidentiary violation, was
not harmless beyond a reasonable doubt. Reversed.
Vinson v. State, 252 S.W.3d 336 (Tex. Crim. App. 2008)
Responding to a 911 call, a police officer took the statement from the complainant who identified
the perpetrator by name and gave a detailed description of the incident. The perpetrator was
present in the room for part of the interview, but was eventually placed in the officer’s patrol car.
At trial, the complainant’s statements were admitted via the testimony of the officer and over a
defense objection.
The appellate court held that the statements made outside the presence of the perpetrator were
testimonial and not in response to an ongoing emergency. Because the defendant was no longer
present and no other emergency existed—even though the victim was bleeding during the
interview—the statements were testimonial hearsay. Remanded for determination of harm.
State v. Lopez, 974 So.2d 340 (Fla. 2008)
An excited utterance, where not made during the course of an ongoing emergency, is testimonial
hearsay where it is made in response to police interrogation, even where the perpetrator is merely
twenty-five yards away, the interrogation is not as formal as the interrogation in Hammon, and
the assailant’s gun is at the scene, but not on the assailant’s person.
State v. Weaver, 733 N.W.2d 793 (Minn. Ct. App. 2007)
At trial for felony murder, over a defense objection, the court admitted the testimony of an
assistant medical examiner who testified to the lab results on the carbon monoxide level in the
victim’s blood and that the victim died of carbon monoxide poisoning. The person who
Successful Crawford Cases 28 Habeas Assistance and Training
August 2012
conducted the lab tests could not be found or identified based on the report. The defendant
admitted setting fire to the home, but claimed that his wife had died when, in the course of an
argument, he pushed her, she tripped and hit her head and died soon thereafter. He claimed to
have then panicked and set fire to the house. He fled the state after his indictment. He was
found four years later. The assistant medical examiner, in addition to testifying about the carbon
monoxide levels, testified that the victim did not die from a head injury. The defense called an
expert that said it was impossible to determine whether there was a single cause of death. The
defense argued the death was manslaughter.
The appellate court ruled that the lab report was testimonial hearsay because it was prepared at
the request of the medical examiner during an autopsy that was part of a homicide investigation.
The court rejected the state’s argument that the defendant had waived his confrontation right by
leaving the state. It noted that to waive the right, it must be a known right. Because he had no
reason to know that the medical examiner would lose track of who conducted the testing and
other related information, he did not waive the right. The court also declined to extend the
forfeiture by wrongdoing doctrine to this situation because there was no evidence he intended to
make the state lose track of its witness. The error was not harmless beyond a reasonable doubt
because of the lab results were discussed at great length in rebutting the defense’s case for
manslaughter. Reversed.
Zapata v. State, 232 S.W.3d 254 (Tex. App. 2007)
At trial, the only witness was a responding officer who testified to the complainant’s statements
made outside her home and in response to her questions. The officer testified to the
complainant’s account of an assault. On cross-examination, the officer testified that her intent
during the interrogation was to gather evidence for prosecution. The defendant was inside the
house during the interrogation.
The appellate court held that the statements were testimonial because they recounted past events.
It also held that there was no ongoing emergency, although the defendant was present, because
there was no evidence that there was an ongoing conflict and the complainant was able to make
an emergency call, leave the residence, and wait for assistance away from the defendant. The
error was not harmless because the officer provided the only testimony of the complaint’s
statements. Reversed.
Mason v. State, 225 S.W.3d 902 (Tex. App. 2007)
At trial, the court admitted the testimony of an officer responding to a 911 call. The officer
testified that the nontestifying complainant told him that the defendant slapped and choked her
and threatened to kill her. The officer took her statement outside the residence while the
defendant was in the bedroom.
The appellate court reversed and held that the statements were testimonial hearsay because the
statement was in response to an officer’s questions and described past events. The court rejected
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August 2012
the state’s argument that because the complainant’s statements were excited utterances, made
under the stress of a startling event, they could not be testimonial. The court noted that the test
for whether statements are testimonial is objective, in contrast to the excited utterance definition
under Texas state law. Reversed.
State v. Tyler, 155 P.3d 1002 (Wash. Ct. App. 2007)
At trial, the court admitted statements from a nontestifying witness. The police had approached
her while she and the defendant were walking down the street and appeared to be fighting.
Shortly after the police got involved, the two separated, an officer noted she was a “prospective
witness,” and took a statement from her. Only one officer was on the scene, and periodically
throughout her whispered statement the witness said that if the defendant heard what she was
saying, he would kill her. As the defendant was being placed in the police car, he shouted to the
witness that she would have to show up at court for the state to convict him.
The appellate court held that the statements of the witness were testimonial and were taken for
the primary purpose establishing past facts, not addressing an ongoing emergency. While the
initial contact may have been to address an “initial exigency,” the exigency terminated “as soon
as law enforcement separated [the witness and the defendant].” It also noted that the officers
characterized the witness as a “prospective witness” and that the police described the encounter
as an “investigation.”
The appellate court declined to apply the doctrine of forfeiture by wrongdoing because the state
raised it for the first time on appeal. Citing Crawford and Davis, it noted that the doctrine “has
its roots in principles of equity, not the constitution.”
State v. Greene, No. 04-06-0740, 2007 WL 1223906 (N. J. Super. Ct. App. Div. April 27, 2007)
(unreported)
At trial, the court admitted the statement of a nontestifying 911 dispatcher. The statement
included a description of the robber and a description of a robbery, as described to the dispatcher.
The appellate court held that because the dispatch relayed past events after the suspect had left
the premises, rather than an ongoing account of a robbery, the statements were testimonial
hearsay, and that it was error to admit them at trial. The court noted that although the trial court
had initially admitted them to describe the “information received” by the police and to explain
why the police acted as they did, the prosecution exceeded the scope of the purpose for which
they were admitted by noting during closing arguments the consistency between another
witness’s testimony and the wrongfully admitted statements. Reversed.
Commonwealth v. Williams, 836 N.E.2d 335 (Mass. App. Ct. 2005)
The trial court admitted the statements of the nontestifying complainant that she made to the
responding investigators. The statements were made while the defendant was on another floor of
the house and provided a detailed account of the alleged assault and battery.
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August 2012
The appellate court reversed. It held that the statements, made in the course of a police
interview, were “per se testimonial” unless “the questioning was of an ‘emergency’ nature.”
Because, at the time of the questioning, the defendant was “in the control of another officer and
not present at the scene,” the questioning was not designed to respond to an emergency and
produced testimonial hearsay.
Drayton v. United States, 877 A.2d 145 (D.C. 2005)
At trial, the court admitted statements of the defendant’s son, the complainant. The statements
were admitted over a defense objection and as an excited utterance. The complainant’s
statement was taken by the responding police officers after the defendant had been placed in the
patrol car and after she had discussed “what was going on” with the officers.
The appellate court reversed. It discussed controlling caselaw holding that excited utterances are
not per se nontestimonial (Stancil v. United States, 866 A.2d 799 (D.C. 2005). It adopted the
California rule announced in People v. Kilday, 20 Cal.Rptr.3d 161 (Cal. Ct. App. 2004) that
statements made to police officers are not per se testimonial. It held that the statements here
were testimonial because any emergency had subsided by the time the statements were made.
The officers had secured the scene by placing the defendant in the police car and had determined
who the participants in the alleged altercation were by interviewing the defendant.
People v. Rivas, No. B171183, 2005 WL 32845 (Cal. Ct. App. Jan. 7, 2005) (unreported)
At trial for attempted willful, deliberate and premeditated murder the trial court admitted the
testimony of an investigating officer recounting the unavailable victim’s statement to him, made
while she was at the hospital. The victim told the officer that the defendant yelled that he was
going to kill her while he was stabbing her. Prior to the appellate court’s decision, the Unite
States Supreme Court decided Crawford v. Washington, 541 U.S. 36 (2004).
The appellate court reversed. It noted that the defendant did not make a Confrontation Clause
objection to the hearsay testimony, but that even if he had done so, the statement would have
been admissible under Ohio v. Roberts, 448 U.S. 56 (1980). Thus, it reviewed the error. It
found that the victim’s statement was testimonial hearsay because the officers were acting “in an
investigative capacity,” not responding to an emergency.
People v. Wang, No. B164939, 2004 WL 2955856 (Cal. Ct. App. Dec. 22, 2004)
At trial, the court admitted statements the non-testifying complainant made to the investigating
officer. The statement was made while the complainant was in the hospital and in response to
the investigating officers who were “wearing their uniforms and carrying their service
revolvers.” The interview addressed the complainant’s “relationship with the defendant and the
abuse defendant had inflicted upon her.”
The appellate court reversed, holding that the statements were testimonial hearsay because they
were made to the officers while the officers were “operating in their investigative capacity.”
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State v. Mack, 101 P.3d 349 (Or. 2004) (en banc)
Prior to trial, the court ruled that statements made by a three-year-old during an interview with a
Department of Human Services caseworker were testimonial hearsay. The interviewer was
initially participating in the interview to “answer questions about his needs” and for the police to
“use her expertise interviewing children to facilitate the officers’ interview.” However, as the
interview progressed, the officers failed to “establish kind of a dialogue or rapport,” and the
caseworker assumed “the primary role in questioning” the witness about the crime.
The state appealed to the Court of Appeals and the Oregon Supreme Court. Both upheld the trial
court’s ruling. The Oregon Supreme Court ruled that it need not “go beyond the reasoning in
Crawford to decide this case.” Because the caseworker was “serving as a proxy for the police,”
the statements the witness made to her were “within the core class of testimonial evidence that
Crawford identified.”
Issues Related to Experts
U.S. Court of Appeals Cases
United States v. Dollar, 69 M.J. 411 (C.A.A.F. 2011) (per curiam)
At trial for wrongful use of cocaine, the court admitted drug testing reports during the testimony
of the government’s expert witness who “frequently” relied on the reports during his testimony.
The author of the reports did not testify.
The appellate court held that the admission was error because the expert acted as a “surrogate”
witness for the author of the reports.
United States v. Cavitt, 69 M.J. 413 (C.A.A.F. 2011) (per curiam)
At trial for use of marijuana, the court admitted the testimony of an expert who relied upon—and
relayed the information contained in—a urinalysis indicating the defendant had used marijuana.
The court also admitted “a cover memorandum stating the tests performed and the results
thereof, a specimen custody document, a confirmation intervention log, a blind quality control
memorandum, chain of custody documents, and machine-generated printouts of machinegenerated data.”
On appeal the court found that introduction of the documents was in error because the author of
the documents did not testify.
United States v. Trotman, 406 Fed. App’x 799 (4th Cir. 2011) (unpublished)
At trial for possession of a controlled substance and possession with intent to distribute, the court
admitted testimony from a chemist who had not actually tested the substances in question, but
who had reviewed the reports of the person who had. The testifying chemist also observed the
substance in question, but not the testing itself.
Successful Crawford Cases 32 Habeas Assistance and Training
August 2012
The appellate court reversed, holding that because the reports were prepared in order to prove
that the substances in question were a controlled substance, they were testimonial hearsay.
United States v. Moore, 651 F.3d 30 (D.C. Cir. 2011)
At trial for murder and possession of drugs, the court admitted autopsy reports and the reports of
DEA agents. A medical examiner reported that he participated, but only tangentially, in the
autopsies that led to the reports, signed by another examiner. The reports were admitted. The
DEA agents’ reports included information about the weight and identity of controlled substances.
The appellate court reversed. It held that the autopsy reports were testimonial hearsay. It
explained that the autopsies were conducted with law enforcement present and that the reports
included conclusions of members of law enforcement. Thus, it was reasonable to assume that
the reports would be used for trial. The admission of the reports, however, was harmless because
the cause of death was well established. The court found that the DEA reports were testimonial
because they were indistinguishable from those in Bullcoming v. New Mexico, __ U.S. __, 131 S.
Ct. 2705 (2011). The court remanded to determine prejudice.
United States v. Ramos-Gonzalez, 664 F.3d 1 (1st Cir. 2011)
At trial for possession of cocaine, the government presented the testimony of a forensic analyst
who did not conduct and was not present for the testing of the substance in question. The trial
court admitted the analyst’s conclusion that the substance was cocaine because of the analyst’s
“familiarity with official procedure.”
The appellate court reversed. It first held that the defense’s objection that the analyst had “no
personal knowledge” of the testing preserved the Confrontation Clause objection. It then held
that in light of Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011) the testimony was wrongly
admitted. It noted that the government was “hard-pressed to paint [the] testimony as anything
other than a recitation” of the testing analyst’s report. It contrasted this situation with the one
where an expert relies on inadmissible testimonial hearsay to form the expert’s own opinion.
United States v. Blazier, 69 M.J. 218 (C.A.A.F. 2010)
At trial, the court admitted laboratory certificates that include printouts from drug testing
machines as well as a narrative describing the tests and the results. The technician who authored
the report did not testify, but a more experienced person did, repeating the information contained
in the reports.
The appellate court reversed. It distinguished between an expert’s reliance on inadmissible
testimonial hearsay and the same expert’s repetition of that hearsay to the fact finder. The
Confrontation Clause, it held, prohibits the latter. More specifically, the testifying expert’s
Successful Crawford Cases 33 Habeas Assistance and Training
August 2012
repetition of the narrative information in the certificates violated the defendant’s right to confront
the witnesses against him.
United States v. Mejia, 545 F.3d 179 (2d Cir. 2008)
At a federal narcotics trial, a police officer testified as an expert about how a criminal gang
conducted its activity. Over the Crawford objection of trial counsel, the officer testified that
through the course of custodial interrogations he had learned that the gang used its treasury funds
to purchase narcotics, used interstate telephone calls to coordinate activities, and taxed nonmember drug dealers. The officer based his testimony on interrogations from prior cases,
interrogations related to defendant’s case, and other sources. He could not, however, distinguish
among his sources.
On direct appeal, the Court of Appeals was “at a loss” as to how the officer applied his expertise
in conveying the custodial statements to the jury. It held the custodial statements were
testimonial and noted that “at least one fact [was learned] . . . during the course of this very
investigation” and was a repetition of hearsay statements in “the guise of an expert opinion” and
in violation of Crawford. The court further held the statements were not harmless beyond a
reasonable doubt because they were material to numerous issues in the case as demonstrated by
the trial judge requiring the jury to make special finding with regards to them. Vacated and
remanded.
State Court Cases
Commonwealth v. Zani, 958 N.E.2d 1182 (Mass. 2011) (table decision)
At trial for possession of cocaine, the court admitted certificates of drug analysis without any
witness testifying in support.
The appellate court reviewed for harmless error. The commonwealth argued that the defendant’s
post-arrest statements identifying the substance as “an eightball,” together with the prosecution’s
expert identifying the substance based on a visual inspection rendered the admission harmless.
The appellate court rejected these claims, analogizing this case to other recent decisions with a
finding that the error was not harmless, without discussing the facts of this case.
People v. Goodreau, 936 N.Y.S.2d 510 (N.Y. Dec. 22, 2011)
At trial for DWI, the court admitted blood test results even though the person who conducted the
blood tests did not testify. The blood was drawn at the defendant’s request.
The appellate court reversed. It held that the person conducting the testing should have testified,
emphasizing the defense’s inability to conduct a meaningful cross-examination about the
adherence—or lack thereof—to protocol. The court also found that it was of no moment that the
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August 2012
blood was drawn at the defendant’s request, as it was the police who controlled the testing and it
was the prosecution that presented the evidence.
Commonwealth v. Lopez, 957 N.E.2d 1131 (Mass. App. Ct. 2011)
At a bench trial for possession of cocaine, the trial court erred by admitting four laboratory
certificates identifying the substance possessed by the defendant as cocaine. The state conceded
error, but contested harm. The appellate court held that the error was not harmless even though
there was some other evidence of the identity of the substance because the trial judge would not
have had any need to look beyond the certificates which listed the weight and identity with
“seeming exactitude.” Reversed.
Whittle v. Commonwealth, 352 S.W.3d 898 (Ky. 2011)
At trial for drug trafficking, the court admitted a report from the state crime laboratory, but the
author of the report did not testify. Instead, the director of the laboratory testified, at times
reading from the report.
The Kentucky Supreme Court reversed. It held that admitting the report violated the defendant’s
right to confrontation. It noted that if the director had merely testified about the laboratory’s
procedures and tests, there would be no violation. But because the report was admitted without
the author testifying, the court found error.
State v. Poole, 716 S.E.2d 268 (N.C. Ct. App. 2011)
At trial for possession of a controlled substance, the court admitted the report of a non-testifying
analyst and the testimony of an analyst which was based exclusively on the report of the nontestifying analyst.
The North Carolina Court of Appeals reversed. It held that the report was testimonial hearsay
and should not have been admitted. It also determined that admitting the testimony of the other
analyst was error. It determined that the analyst was not offering an “independent opinion” but
was “merely summarizing another non-testifying expert’s report” because the analyst conducted
no independent testing and did not witness the testing conducted by the non-testifying analyst.
Thus, the testimony violated the Confrontation Clause.
Commonwealth v. Darosa, 952 N.E.2d 992 (Mass. App. Ct. Sept. 14, 2011) (table decision)
Admission of drug certificates identifying the weight and quantity of drugs, without testimony
from the analyst testing the drugs, violated the defendant’s right to confrontation.
Commonwealth v. Mejias, 952 N.E.2d 991 (Mass. App. Ct. Sept. 13, 2011) (table decision)
At trial for possession of over 28 grams but less than 100 grams of cocaine, the court admitted
certificates of analysis identifying a substance as cocaine and noting the weight as 35 grams.
The analyst did not testify. While the defendant’s appeal was pending, the United States
Supreme Court decided Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). Nonetheless,
Successful Crawford Cases 35 Habeas Assistance and Training
August 2012
appellate counsel did not raise a Confrontation Clause claim based on the decision. On collateral
review, the Massachusetts Court of appeals found that appellate counsel was ineffective for
failing to raise a claim. Because the weight of the substance was an element of the offense and
because of the small amount more than the threshold for the statute, the error was not harmless.
State v. Jaramillo, 272 P.3d 682 (N.M. Ct. App. 2011)
At trial for child abuse resulting in death, the court admitted portions of the medical examiner’s
report. The author of the report had retired prior to trial and demanded a fee greater than the
state was willing to pay. In the retired examiner’s place, the court admitted the report of the
examiner and the testimony of new examiner, who took no part in the autopsy. The report
concluded, among other things, that the victim’s death was caused by closed head injuries and
was “consistent with homicide.”
The appellate court reversed, holding that the report was testimonial hearsay. Because the report
was prepared with the “intention of the medical examiner to establish the case and manner of . . .
death,” it was a testimonial statement. Reversed.
State v. Williams, 719 S.E.2d 255 (N.C. Ct. App. Nov. 15, 2011) (unreported)
At trial for possession of heroin and for habitual felon status determination, the trial court
committed plain error by failing to exclude a laboratory certificate that recounted the quantity
and identity of the substances obtained from the defendant. The court noted that the requirement
of having proof of the identity beyond that of the expertise of the arresting officers was
supported by this case because the arresting officer had misidentified some of the substances.
State v. Bolden, __ So.3d __, 2011 WL 4578596 (La. App. 2011)
At trial for two rapes, the defendant was linked to the crimes via his DNA profile. He had
provided his DNA in an unrelated case, and when a lab compared its database to a national
database, the defendant’s profile was a likely match to the DNA in the two rape cases. Persons
no longer working at the laboratory and who did not testify tested the DNA testing related to the
two rapes. A third profile was generated after the defendant was charged for the two rapes. That
profile was admitted at trial along with the DNA testing associated with the rapes.
The appellate court reversed and held that not being afforded an opportunity to cross examine the
analysts who tested the evidence from the rapes violated the defendant’s Confrontation Clause
rights. It explained that absent such an opportunity, there was no way to ensure that the testing
was conducted properly.
People v. Fackleman, 802 N.W.2d 552 (Mich. 2011)
At trial for home invasion, felonious assault, and felony-firearm, the defendant entered a defense
of insanity. Shorty after the incident, the defendant was arrested and taken to the psychiatric
wing of the hospital. Two days into his stay there, the treating psychiatrist drafted a report
Successful Crawford Cases 36 Habeas Assistance and Training
August 2012
outlining the facts that served the basis of his opinion as well as his opinion that the defendant
was not psychotic at the time of trial. The treating psychiatrist did not testify at trial. The
defense introduced the testimony of a psychiatrist who concluded he was psychotic at the time of
trial. During his direct testimony, he explained that he relied, in part, on the report of the treating
psychiatrist, but that he differed with his opinion. On cross-examination, the prosecutor read
from the report, including the portion relaying the treating psychiatrist’s opinion.
On appeal, the State Supreme Court held that trial counsel was ineffective for failing to raise a
Confrontation Clause objection to the admission of the report. It explained that the report was
testimonial hearsay. The circumstances under which the psychiatrist drafted the report, it is
objectively likely that he expected the statement to be used as evidence in a prosecution. It also
noted that statements of psychiatrists “deserve special consideration” because of the likelihood
they will be used in cases turning on mental health evidence.
Commonwealth v. Banks, 950 N.E.2d 907 (Mass. App. Ct. July 26, 2011) (table decision)
Admission of ballistic certificates violated the defendant’s right to confront the author of the
certificates at a trial for possession of a firearm. The error was not harmless because the
certificates were the only evidence that the firearm was operational.
State v. Ortiz-Zape, 714 S.E.2d 275 (N.C. Ct. App. 2011)
At trial for possession of marijuana, the court admitted the expert testimony of a criminalist who
conducted a “peer review” of the testing analysis prepared by another criminalist. The review
consisted of her “review[ing] the drug chemistry worksheet or lab notes that the analyst wrote
her notes on and the data that came from the instrument that was in the case file and then [she]
also reviewed the data that was still on the instrument and made sure that was all there too.”
The appellate court reversed. It held that the peer review was more like reiterating the
conclusions of the non-testifying criminalist and did not offer an independent assessment or
opinion. The court noted that the criminalist did not observe the testing or conduct any
independent testing of her own.
State v. Brent, 718 S.E.2d 736 (N.C. Ct. App. June 21, 2011) (table decision)
At trial for felony possession of cocaine, the court admitted the testimony of a criminalist who
conducted “peer review” of the testing analysis prepared by another criminalist. Nothing about
the testifying review actually tested the reliability of the data underlying her opinion.
The appellate court reversed. It held that the testifying criminalist had not conducted an
independent review. It emphasized that she had not taken “any action to verify the results” on
which she based her testimony. Thus, her testimony was more akin to “mere summarization” of
the non-testifying criminalist’s conclusions and violated the defendant’s right to confrontation.
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Johnson v. State, Nos. 05-09-00494-CR, 05-09-00495-CR, 2011 WL 135897 (Tex. App. Jan.
18, 2011)
At trial for possession of cocaine with intent to distribute, the trial court infringed on the
defendant’s Confrontation Clause rights by admitting laboratory certificates detailing the identity
and weight of the substance in question. The author of the certificates and analyst who
conducted the testing did not testify. The testimony of another analyst was inadequate to protect
the defendant’s right to confrontation because that analyst merely “parroted” the conclusions of
the testing analyst. The testifying analyst did not exercise any independent judgment in coming
to her opinion. Reversed.
State v. Styx, 944 N.E.2d 722 (Ohio Ct. App. 2010)
At trial for driving under the influence, the court admitted a blood test result over the defendant’s
objection without requiring the phlebotomist who drew the blood or the toxicologist who tested
to testify.
The appellate court reversed. It held that both were required to testify. It explained that the
testimony of the arresting officer did not provide an adequate foundation or opportunity for
cross-examination because he did not know the procedure the phlebotomist employed. The
supervisor of the toxicology lab’s testimony was not adequate because she did not actually
conduct any testing or have any “first-hand knowledge of the blood draw, its testing, or its
results.”
State v. Williams, 702 S.E.2d 233 (N.C. Ct. App. 2010)
At trial for possession of cocaine, the court admitted the testimony of a laboratory analyst about
her “peer review” of another analyst’s tests. The other analyst did not testify, but her reports
were admitted as the basis of the testifying analyst’s testimony. The testifying analyst testified
that based on the tests and the data produced from the testing that the substance tested was
cocaine.
The appellate court reversed. It held that because the analyst did not observe or conduct any of
the testing, she “could not have provided her own admissible analysis of the relevant underlying
substance.”
State v. Brennan, 692 S.E.2d 427 (N.C. Ct. App. 2010)
At trial, the court admitted the expert testimony of a forensic chemist. She testified that, based
on her review of a nontestifying chemist’s report, that the substance in question was cocaine.
The appellate court held that because the testifying witness was “merely reporting the results of
other experts,” her testimony was in violation of the Confrontation Clause. It noted that she did
“no independent research” and had never seen the substance in question. The error was not
harmless because the defendant’s admission to smoking cocaine earlier in the day and request to
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August 2012
discard the cigarette box containing the substance require inferences that would “inevitably
corrode a defendant’s Sixth Amendment right to confront his accusers.” Reversed.
People v. Davis, No. A120428, 2010 WL 3555825 (Cal. Ct. App. Sept. 14, 2010) (unreported)
The trial court admitted autopsy reports and DNA reports and notes authored by individuals not
subject cross-examination. It also allowed an expert to rely on those reports in his testimony.
The appellate court reversed. It held that autopsy reports are testimonial and their authors must
be made available to testify because their authors can have “no doubt” that the report might be
used a criminal trial “for the purpose of establishing facts necessary to obtain a conviction.”
Similarly, notes and reports from DNA testing are testimonial for purposes of the Confrontation
Clause. With little explanation, the court held that having an expert other than the one
generating the statements rely on them is insufficient where the authors of the reports have not
been subject to cross-examination.
People v. Lopez-Garcia, No. B215308, 2010 WL 3529775 (Cal. Ct. App. Sept. 13, 2010)
(unreported)
The trial court admitted DNA testimony by someone other than the person who conducted the
DNA testing. The court also admitted the reports authored by nontestifying witnesses. The
appellate court reversed. DNA analysis is testimonial because it summarizes the “results of a
scientific procedure performed for the purpose of determining the identity of a criminal suspect”
and it “describes a past fact related to criminal activity.” The court contrasted a
“contemporaneous recordation of observable events,” noting the report was prepared nearly a
month after the testing was complete. The admission was prejudicial because it was the only
evidence other than the testimony of the victim that linked the defendant to the crime.
Commonwealth v. Barton-Martin, 5 A.3d 363 (Pa. Super. Ct. 2010)
At trial for driving under the influence, the court admitted the blood-alcohol test result without
requiring the lab technician who conducted the testing to testify. The appellate court held that
the admission violated the Confrontation Clause. It dismissed the state’s argument that the
defense being able to call the lab technician to testify as irrelevant, quoting Melendez-Diaz v.
Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009): “the Confrontation Clause imposes a
burden on the prosecution to present its witnesses, not on the defendant to bring those adverse
witnesses into court.”
Commonwealth v. Bookman, 932 N.E.2d 824 (Mass. App. Ct. 2010)
At trial for drug related offenses, the court admitted certificates that identified a substance found
on the defendant as cocaine. Simply citing two recent state court cases, the appellate court held
that the admission violated the Confrontation Clause. Reviewing for whether the evidence was
harmless beyond a reasonable doubt, the court concluded, as in the cited cases, that their
admission was not. Reversed.
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Commonwealth v. Durand, 931 N.E.2d 950 (Mass. 2010)
At trial for murder, the factual contents of an autopsy report prepared by a nontestifying medical
examiner were admitted over the defendant’s objection. The appellate court held the admission
was in error because the testifying pathology expert testified not only to his opinion about the
cause of death, but also the underlying facts found only in the hearsay statements contained in
the autopsy report. Because the cause of death was “very much a disputed issue,” the court held
that the error was not harmless. Reversed.
State v. Williams, 698 S.E.2d 556 (N.C. Ct. App. 2010) (table decision)
At trial for possession of marijuana, the court admitted a State Bureau of Investigation lab report.
An officer testified, relying on the report, that the substance tested was marijuana. Without
discussion, the appellate court held the admission was erroneous. It also held the error was not
harmless beyond a reasonable doubt because it was the “only competent evidence identifying the
substance as marijuana.”
State v. Davis, 698 S.E.2d 556 (N.C. Ct. App. Aug. 3, 2010) (table decision)
At trial, the court admitted the expert testimony of a forensic pathologist who relied on a
nontestifying pathologist’s report for his testimony. The appellate court held that because he
relied on the report but did not conduct any “independent testing designed to confirm the
conclusions” therein, its admission violated the Confrontation Clause. The testifying pathologist
testified as to the other pathologist’s opinion that the death was a homicide. The error was not
harmless because the defense theory was that the death was accidental, and the defendant did not
get to cross-examine the person who concluded that it was not. Reversed.
Commonwealth v. Hieu Minh Nguyen, 930 N.E.2d 754 (Mass. App. Ct. 2010) (table decision)
At trial, the court admitted drug certificates from a crime lab. No one from the lab testified at
trial. The appellate court found a Confrontation Clause violation and prejudice in “light of the
other evidence with respect to the nature of [the alleged substances].” Reversed.
State v. Craven, 696 S.E.2d 750 (N.C. Ct. App. 2010)
At trial for drug possession, the court admitted testimony from an officer who had not tested the
drugs. She testified that she had reviewed the data collected by the analyzing officer and that if
the officer did not falsify the reports and if the officer followed proper procedure, then the
testifying officer also would have reached the same conclusions.
The appellate court held that the testimony violated the Confrontation Clause because “it is
precisely these ‘ifs’ that need to be explored on cross-examination.” The error was not harmless
even though the state presented testimony of a cooperating drug dealer who testified the material
was cocaine: “scientific testing by an expert forensic analyst would be much more influential
than lay opinion testimony from an admitted drug user.” Reversed.
Polk v. State, 233 P.3d 357 (Nev. 2010)
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August 2012
At trial for murder, the court admitted one expert’s testimony restating the conclusion of another.
The testifying expert had tested three of four pieces of evidence presented at trial. The
nontestifying expert was the only expert to test the fourth. The appellate court held that the
admission violated the Confrontation Clause because the first expert was not available for crossexamination about the conclusion reached. It deemed the question of prejudice waived because
the state failed to raise it in its briefing. Reversed.
State v. Brewington, 693 S.E.2d 182 (N.C. Ct. App. 2010)
At trial for possession of cocaine, the court admitted the state’s expert forensic chemist’s
testimony that the substance in issue was cocaine even though the expert had not conducted the
analysis of the substance. The appellate court held that if the witness had “offered her own
expert opinion based on independent analysis,” then no violation would have occurred. But
because the witness “simply offered the opinion contained in [the] report,” her testimony was
inadmissible. Her testimony was a simple reiteration of the conclusions because she conducted
no “independent of analysis of the substance.” Analyzing whether the report followed proper
procedures was not enough. Reversed.
State v. McDaniel, 230 P.3d 245 (Wash. Ct. App. 2010)
At trial, the court admitted the expert testimony of a police officer about gang activity. Based on
his investigation, he testified to the defendants’ gang nicknames, thus corroborating their
involvement in the crime. The appellate court held that for one defendant, the testimony was
admissible because the officer clearly relied upon nontestimonial information, including
photographs. For the other, the source was interviews, and the state failed to establish that the
interviews were nontestimonial. Thus, the expert’s testimony regarding the second defendant
violated the Confrontation Clause. Because the identification linked the defendant to telephone
calls discussing the crime, the error was not harmless.
People v. Defroe, No. D056479, 2010 WL 1532341 (Cal. Ct. App. April 19, 2010) (unreported)
At trial, the court admitted certificates of analysis and testimony about the analysis of a
substance that the evidence showed was cocaine. The analyst who completed the testing and
authored the reports did not testify. The appellate court held that the admissions were in error
because the certificates were, “on their face,” prepared for the purpose of proving a fact and,
thus, testimonial hearsay. Because the testifying witness “merely conveyed the results,” the
defendant was deprived of his right to confrontation. Reversed.
People v. Annunciation, No. D054988, 2009 WL 4931884 (Cal. Ct. App. Dec. 22, 2009)
(unreported)
At trial for murder, the court admitted the autopsy report relied upon by the testifying pathologist
in formulating his testimony, but authored by a different pathologist. The appellate court held
that the report was testimonial because it included conclusions about how the injuries suggested
the defendant’s alleged state of mind at the time of the crime. The court held that prior state
precedent had been overruled by Melendez-Diaz, specifically noting that whether such reports
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August 2012
were routine, reliable, or created contemporaneous to the testing were all irrelevant to the
Confrontation Clause inquiry. The error was not harmless beyond a reasonable doubt because
the pathologist’s testimony, conveying the inadmissible report, was the “primary evidence that
enabled the prosecution to argue” the necessary mental state. Reversed.
State v. Laturner, 218 P.3d 23 (Kan. 2009)
The Kansas Supreme Court ruled that drug analysis certificates, as authorized by state statute, are
testimonial hearsay because the statute requires the certifying analyst to swear, under penalty of
perjury, that the document is true and correct. The court also held the state’s notice-and-demand
statute unconstitutional because it provided that a certificate will be admitted unless “it appears
from the notice of objection . . . that the grounds for that objection that the conclusions of the
certificate . . . will be contested at trial.” The court explained that the statute did not permit a
defendant to “explore weaknesses in the reliability of a witness’ testimony,” and that the only
justification for the statutory requirement—that “a confrontation right only arose if the hearsay
evidence did not have particularized guarantees of trustworthiness—is no longer valid.”
People v. Dungo, 98 Cal. Rptr. 3d 702 (Cal. Ct. App. 2009) review granted People v. Dungo,
220 P.3d 240 (Cal. 2009)
At trial for homicide, a pathologist was permitted to testify, relying on another pathologist’s
report, about how long the defendant choked the victim, which was relevant to whether the crime
was murder or voluntary manslaughter. The report itself was not admitted, but the testifying
pathologist disclosed portions of its contents to the jury. The appellate court held that the report
was testimonial because its purpose is to “determine the circumstances, manner, and cause of
death[, which] . . . is certainly part of a law enforcement investigation.’” Because the report was
testimonial, testimony “relaying the contents” of the report violated the defendant’s
confrontation right. The court noted that the state was explicitly avoiding putting the other
pathologist on the stand because he had been fired and discredited. Reversed.
McMurrar v. State, 905 N.E.2d 527 (Ind. Ct. App. 2009)
At trial for possession of drug paraphernalia, the court admitted a drug analysis certificate related
to the testing of the alleged paraphernalia found on the defendant at the time of his arrest.
Because the testing was done “for the purpose of showing the substance was cocaine and to
prove an element of the charge, i.e., that [the defendant] intended to introduce the cocaine into
his body,” the appellate court that the report was testimonial hearsay. Since the author of the
report did not testify and was not shown to be unavailable, having the quality assurance manager
of the laboratory testify to “the contents of the report and the conclusions drawn therein,” was an
abuse of discretion. The court did not discuss prejudice. Reversed.
State v. Mangos, 957 A.2d 89 (Me. 2008)
A forensic scientist’s conclusion about the likelihood that DNA found on clothing matched the
defendant’s DNA is testimonial because it was made “in furtherance of a police investigation.”
Even though there were two eyewitnesses who made positive identifications, the erroneous
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August 2012
admission of that evidence was not harmless because the scientist was the only person who could
provide the evidence linking the clothing to the tested swabs and who could testify about
whether the proper scientific methods were used in creating the tested swabs that resulted in
“powerful DNA evidence” connecting the defendant to the crime. Reversed.
People v. Levy, 873 N.Y.S.2d 236 (N.Y. Dist. Ct. 2008) (table decision)
At trial for driving while under the influence of drugs, urine test results conducted as part of the
investigation were testimonial hearsay because they are “accusatory—since positive urine tests—
combined with the testimony regarding the defendant’s operation of her vehicle, would result in
the defendant being found guilty.” Motion to dismiss granted.
Jackson v. State, 891 N.E.2d 657 (Ind. Ct. App. 2008) abrogated on harmlessness ruling by
Roundtree v. State, 928 N.E.2d 902 (Ind. Ct. App. 2010) (holding Chapman applies to Crawford
violations)
As a matter of first impression, the appellate court ruled that laboratory certificates are
testimonial hearsay because they are prepared for the purpose of litigation. Having the
laboratory supervisor testify is not sufficient unless that person prepared the certificate.
Crawford violations, based on the court’s reading of Crawford and Giles, are not subject to
harmlessness review. Reversed.
State v. Mata-Woodruff, No. A07-0117, 2008 WL 2415273 (Minn. Ct. App. June 17, 2008)
(unreported)
A Bureau of Criminal Apprehension laboratory report stating that a substance was
methamphetamine was testimonial. Admission of the reports without supporting testimony from
the analyst who prepared it is plain error where the admission was directly contrary to binding
precedent and was relied on by the prosecution, making it the focus of its opening and closing
arguments. Reversed.
State v. Willis, No. A06-2443, 2008 WL 2020365 (Minn. Ct. App. May 13, 2008) (unreported)
Admission of Bureau of Criminal Apprehension reports identifying the chemical make-up and
weight of various substances was plain error because reports in a nearly identical situation had
been found to be testimonial in a recent state Supreme Court decision. The admission was not
harmless because the trial court explicitly relied on the reports when finding the defendant guilty
of the charges. Reversed.
State v. Johnson, 982 So.2d 672 (Fla. 2008)
Florida Department of Law Enforcement reports about the nature of controlled substances, i.e.
whether they are illegal drugs, are testimonial because they are the “functional equivalent of an
affidavit” and are “prepared for litigation and written to prove critical elements of the
prosecution’s case.” The court distinguished law enforcement records from other business
records based on their function. The court also held that the author of the report was not
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August 2012
“unavailable” because she was willing to fly from Virginia to Florida to testify the next day.
Reversed.
State v. Belvin, 986 So.2d 516 (Fla. 2008)
Breath test affidavits containing information about the procedure used to measure the blood
alcohol content, the time the sample was analyzed, the results of the test, the type and status of
any permit issued by the Florida Department of Law Enforcement and held by the test
administrator, and the date of the most recent maintenance on the testing instrument are
testimonial statements for several reasons. First, they are “acting as a witness” against the
defendant by providing “a critical element” to the DUI prosecution. Next, they are not created
during an ongoing emergency or contemporaneously with the crime. Third, they are created at
the request of a prosecuting agency. Finally, they are highly formalized and created for use at
trial. The court distinguished blood tests and other test results taken for medical purposes,
emphasizing that tests by law enforcement are done for the purpose of prosecution and are, thus,
testimonial. Reversed.
People v. Horton, No. 268264, 2007 WL 2446482 (Mich. Ct. App. Aug. 28, 2007) (unreported)
At trial for murder, the court admitted the testimony of a serology and DNA expert who, in
addition to testifying about the tests he conducted himself, testified about the tests of two
nontestifying experts, based on their reports. The other two experts concluded that blood found
in the defendant’s apartment was human blood matching the victim’s blood. The defendant
objected on grounds of personal knowledge, but not hearsay or confrontation.
Reviewing for plain error, the court held that because one would “reasonably expect [the reports]
would be used in a prosecutorial manner and at trial,” the court ruled they were testimonial.
Their erroneous admission affected the defendant’s substantial rights because, even though other
evidence was consistent with the prosecution’s theory of the case, none was “nearly as strong” as
the improper testimony since the evidence alone “persuasively established that the victim’s blood
was in the defendant’s apartment.” Reversed.
State v. Lewis, 648 S.E.2d 824 (N.C. 2007)
At trial for assault with a deadly weapon, over defense objection, the court admitted the
testimony of the investigating officer, who recounted the statement of the nontestifying
complainant and the testimony of another officer about a nontestifying witness who identified
the defendant as the assailant. While his appeal was pending, Crawford was decided. The court
of appeals reversed, and the state Supreme Court reversed the court of appeals. The Supreme
Court granted certiorari, vacated the decision, and remanded in light of Davis.
The North Carolina Supreme Court then held that the statements were testimonial hearsay. The
complainant’s statement was testimonial hearsay because she faced no immediate threat; the
interview was to determined what happened, rather than what was happening; and occurred
“some time after” the events actually occurred. The identification was also testimonial, but the
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August 2012
court did not provide an analysis because it had held as much previously. The court briefly
discussed forfeiture by wrongdoing, but acknowledged that it “has not been raised in this case.”
The court found admitting the statements was not harmless beyond a reasonable doubt, but it did
not conduct an analysis. Court of Appeals grant of new trial affirmed.
State v. Moss, 160 P.3d 1143 (Ariz. Ct. App. 2007) ordered depublished by 173 P.3d 1021 (Ariz.
2007)
Prior to trial on charges for reckless endangerment based on the defendant’s alleged operation of
a vehicle under the influence of drugs, the court granted the defendant’s motion to exclude expert
testimony about toxicology test results of the defendant’s blood, which was taken at the time of
his arrest, and dismissed the charges. The state had sought to introduce the testimony of the
director of the laboratory in lieu of the criminalists who actually tested the blood. The laboratory
had closed, and the state was unable to locate the criminalists. The state appealed. It argued that
it was merely offering the expert to opine on the defendant’s intoxication at the time of his arrest,
not to testify as to the opinions reached by the nontestifying criminalists. According to the state,
the actual results, i.e. the opinions reached by the prior experts, were being offered as the basis
for the testifying expert’s opinion.
Affirming, the appellate court rejected the state’s arguments, explaining that that the criminalists
had prepared their report and reached their conclusions about the defendant’s blood for the
purpose of prosecuting the defendant and was testimonial hearsay for this reason. Moreover, the
jury was likely to consider the testimony about the nontestifying criminalists results for the truth,
and, thus, should be considered testimonial hearsay.
State v. March, 216 S.W.3d 663 (Mo. 2007) (en banc)
At trial for trafficking a controlled substance, over a defense objection, the court admitted the
testimony of the custodian of a laboratory analysis of a substance found on the defendant’s
cohabitant at the time of his arrest. The author of the report was not called to testify because he
had moved out of state.
The appellate court ruled that the laboratory report was testimonial hearsay because it had been
prepared for the purposes of presentation in a prosecution. It declined to apply the business
records exception to the report, noting that most of the other states that had done so had applied
pre-Crawford reasoning. Reversed.
State v. Renshaw, 915 A.2d 1081 (N.J. Super. Ct. App. Div. 2007)
At trial, the court admitted a “Uniform Certification for Bodily Specimens Taken in a Medically
Accepted Manner” over the defense objection that the author of the certification was not called
to testify. The certification contained an attestation that the blood drawn from the defendant at
the time of his arrest was done in a medically accepted manner. In its case, the defense presented
expert testimony about potential errors related to the drawing of blood that could interfere with
the blood test results which were also admitted at trial.
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The appellate court held that the certification was testimonial hearsay because it was prepared
“solely to be used ‘in any proceeding as evidence of the statements contained’ within [the
certification].” In light of the defense expert’s testimony, the availability of the officer who
observed the blood drawn did not sufficiently mitigate the prejudice of not being able to confront
the author of the certification because the officer was not competent to testify as to whether the
blood was, in fact, drawn in a medically acceptable manner that would avoid the potential errors
highlighted by the defense.
State v. Sickman, No. A05-2478, 2006 WL 3593042 (Minn. Ct. App. Dec. 12, 2006)
(unreported)
At trial, the court admitted, over the defendant’s objection, a certificate authored by the
nontestifying person who drew the defendant’s blood at the time of his arrest. The certificate
stated that the blood draw complied with the relevant statutory requirements for proper blood
draws.
The appellate court found that the certificate was testimonial because it, like blood test results
and affidavits related to maintenance of brethalyzer machines, was prepared under the reasonable
expectation that it would be presented prosecutorially at trial. It rejected the state’s argument
that the certificate merely corroborated the blood test results and was therefore nontestimonial.
The court also applied prior state precedent and held unconstitutional the state notice and
demand statute requiring the defendant to notify the prosecution that s/he wants the prosecution
to call the person who drew the blood at least ten days prior to trial or waive their presence. The
statute did not give the defendant adequate notice of the content of the person’s testimony.
Sobata v. State, 933 So.2d 1277 (Fla. Dist. Ct. App. 2006)
Applying prior precedent with little discussion, the appellate court held that the admission of
blood test results at a trial for driving under the influence was in error where the toxicologist
completing the testing and authoring the report did not testify. Reversed.
Granville v. Graziano, 858 N.E.2d 879 (Ohio Mun. Ct. 2006)
Prior to trial for operating a vehicle under the influence of alcohol (OVI), the defendant moved
to suppress the results from a breath test. In Ohio, if test results are admitted in an OVI
suppression hearing, they are admissible at trial. The court noted that OVI suppression hearings
“often dispose of the entire case.”
The court held that because of the significance of the OVI suppression hearing, the
Confrontation Clause applied to evidence presented there. It went on to hold that the statements
certifying the reliability and testing of the testing device and related to the training and
experience of the test administrator. Because the statements are prerequisites for admitting the
results of the test, the court held that the statements were made in preparation for litigation and
were, therefore, testimonial.
Johnson v. State, 929 So.2d 4 (Fla. Dist. Ct. App. 2005)
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August 2012
At trial for possession of controlled substances, the court admitted the Florida Department of
Law Enforcement lab report concluding that substances seized from the defendant were cocaine
and marijuana. The author of the report and the person who conducted the tests was out of state
and the prosecution did not call her to testify. The prosecution also introduced the testimony of
the arresting officers who conducted “presumptive field tests” on the substances and concluded
they were cocaine and marijuana. It also introduced testimony of one officer who, based on his
training experience, recognized one of the substances as marijuana.
The appellate court reversed, holding that the report was testimonial hearsay. It explained, “The
problem comes into play in a case in which an FDLE lab report is admitted as a business record
is that, technically, an FDLE lab report is a record kept in the regular course of business but, by
its nature, it is intended to bear witness against an accused.” The court held that because its
purpose is to establish an element of the crime, it is testimonial hearsay. Because the
presumptive field test alone was insufficient to convict the defendant, the error was not harmless
with regards to the cocaine charge.
People v. Lonsby, 707 N.W.2d 610 (Mich. Ct. App. 2005)
At trial for sexual abuse of the defendant’s twelve-year-old granddaughter, the court admitted the
testimony of a member of the state crime lab serologist, who relayed the contents of the notes
and report of another lab technician, who did not testify. The granddaughter, the defendant’s
wife, and the defendant also testified. The granddaughter claimed that after she complied with
the defendant’s request to touch his penis, he ejaculated onto his swimming trunks. The
defendant testified that any of his bodily fluid on the trunks would have been urine and that he
had changed out of the trunks after his wife noticed a wet spot on them. The defendant’s wife
testified that she had purchased the trunks at a garage sale but had not washed them after the
purchase. The technician’s notes said that the initial test on the trunks suggested the presence of
semen, but that result was not included in the final report because there was not a sufficient
sample to confirm its presence via retesting. While the defendant’s appeal was pending, the
Supreme Court decided Crawford.
The appellate court reversed. Noting a split of authority on the issue, it found that the notes and
report made at the crime lab were testimonial hearsay. The court noted that the testing took
place “with the ultimate goal of uncovering evidence for use in a criminal prosecution” and that
the crime lab is “an arm of law enforcement and the scientists’ written analyses are regularly
prepared for and introduced in court.” The court emphasized that the notes were the only source
of the finding that semen was present and that the prosecution witness misleadingly used the first
person plural to discuss the testing and findings.
Statements to Law Enforcement
U.S. Court of Appeals Cases
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August 2012
United States v. Meises, 645 F.3d 5 (1st Cir. 2011)
At trial for conspiracy to purchase cocaine, the court admitted the testimony of a law
enforcement agent that, after interviewing an absent alleged co-conspirator, the targets of the
investigation changed to focus on the defendant. The statement of the alleged co-conspirator
was not admitted. One defendant argued that the statement was hearsay and noted that the
declarant was not “here.” The other defendant noted that the statement was prejudicial.
On appeal, the Court of Appeals reversed. It held that the objection noting the absence of the
declarant preserved the Confrontation Clause issue for both defendants. It held that the
statement about changing the target of the investigation was testimonial hearsay because it
plainly communicated the statement of the declarant: the defendant was involved. “[A]ny other
conclusion would permit the government to evade the limitations of the Sixth Amendment . . . by
weaving an unavailable declarant’s statements into another witness’s testimony by implication.”
Reversed and remanded.
United States v. Sandles, 469 F.3d 508 (6th Cir. 2006)
At a federal bank robbery trial, the government had to prove that the bank was FDIC insured.
The trial court admitted three pieces of evidence related to this element: (1) a statement of an
employee that it was insured, (2) that employee’s statement that the bank had stickers indicating
it was insured, and (3) an affidavit from the Assistant Executive Secretary of the FDIC stating
that she had searched the FDIC records and uncovered nothing indicating the insured status had
ended.
On direct appeal, the Court of Appeals reversed. It held, conducting plain error review, that the
affidavit was testimonial hearsay and inadmissible under the Confrontation Clause. The
government did not mention the affidavit until closing argument, but the court held it was not
harmless error because the only piece of admissible evidence to prove the bank was FDIC
insured—the statement about the stickers—was legally insufficient to convict. Reversed and
remanded.
United States v. Rodriguez-Marrero, 390 F.3d 1 (1st Cir. 2004)
At trial, two former prosecutors, including a current sitting judge, testified to the sworn
statements made by the non-testifying cooperating witness. The cooperating witness was later
killed, and the trial court admitted the statements under the forfeiture by wrongdoing doctrine.
The defendant was convicted of a drug conspiracy and aiding and abetting murder.
On appeal, the government made only passing reference to the doctrine and, instead, argued that
the statements were admissible hearsay because they were against penal interest. Applying
Crawford, the Court of Appeals dismissed the penal interest argument and ruled that the
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statements were testimonial hearsay. It also ruled that the government waived its forfeiture by
wrongdoing argument by only making passing reference to it. It found that the government had
also waived any harmlessness argument, but sua sponte explained that the statements were not
harmless because, while the statements corroborated other evidence, their detail was “powerful”
and having them come from a judge, who was identified as such to the jury, made finding them
harmless “unrealistic.” Affirmed in part, vacated in part, and remanded.
State Cases
State v. May, __ N.E.2d __, 2011 WL 6778136 (Ohio Dec. 16, 2011)
At trial for operating a vehicle under the influence of alcohol, the court admitted the testimony of
the investigating officer relaying the statements of witnesses who informed him that the
defendant had consumed two beers at the scene after the accident. This testimony contradicted
the defendant’s account, which was that he had consumed four or five beers after the accident
and only after the accident.
The appellate court reversed. It held that the witnesses’ statement were testimonial hearsay.
Although the officer was responding to the scene of an accident, the statements were not taken
until after the officer had spoken with EMS and had taken a statement from the defendant. The
court found that it was clear that the statements were taken as part of an investigation.
State v. Worley, No. 94590, 2011 WL 2377067 (Ohio Ct. App. June 9, 2011) (unreported)
At trial for attempted murder, the court admitted statements made to the investigating officer.
The statements were made days after the crime and during officers investigation of the crime.
The appellate court held that because the statements were made to law enforcement after the
emergency had subsided, they were testimonial hearsay outside of any exception. The court did
not consider whether the error was harmless. Reversed.
Corbin v. State, 74 So.3d 333 (Miss. 2011)
At trial for murder, the court admitted the statement the victim made to a police interrogator
while hospitalized and six months before he died. The defendant never had an opportunity to
cross-examine the victim.
The Mississippi Supreme Court reversed. Reviewing for plain error, it held that the statement to
the interrogator was testimonial hearsay. Because the statement was made to the investigating
officer during the course of his investigation, it was at the “core” of the statements implicating
the Confrontation Clause.
Morris v. State, 13 A.3d 1206 (Md. 2011)
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At trial for attempted robbery, the state’s theory was that the defendant was the pre-ordained
getaway driver for the co-defendant. After his arrest, the co-defendant made the following
contradictory statements to the police: 1) he entered a car a few blocks from the scene of the
incident, and 2) he entered a white sedan at the scene. Prior to trial, the co-defendant entered a
plea agreement where he would not challenge the state’s evidence in exchange for a reduced
sentence, should he be convicted. The defendant and co-defendant were tried jointly. The
defendant maintained he innocently picked up the co-defendant as he had many times before.
The appellate court held that because of the plea agreement, the co-defendant was not truly tried
jointly and Crawford,
1 not Bruton,
2 applied. Thus, the question was whether the defendant’s
statements to law enforcement were testimonial hearsay. Because they were offered to law
enforcement, they were. In considering whether the admission was harmless, the court
emphasized that the latter statement, that the co-defendant entered the car at the scene,
undermined the defendant’s claim of innocence and was, therefore, not harmless error.
Commonwealth v. Taliba, 929 N.E.2d 1001 (Mass. App. Ct. 2010)
Admission of a police officer’s testimony that a nontestifying informant saw the defendant
conduct a drug transaction violated the Confrontation Clause because the officer had no
knowledge of the transaction other than the informant’s statements to him. Reversed.
Odom v. Commonwealth, No. 2008-SC-000272-MR, 2010 WL 1005958 (Ky. Mar. 18, 2010)
(unreported)
Prior to trial, the prosecutor’s office obtained and transcribed a statement from the nontestifying
complainant about an alleged assault and witness intimidation. The public defender’s office
obtained and transcribed a statement from the same complainant about the alleged assault. At
trial, the defendant represented himself in part and asked the prosecution interviewer about the
statement. The court warned him not to continue the line of questioning for risk of having the
statement introduced into evidence. He changed lines of questioning and eventually turned to
the statement to the public defender about assault. On the prosecution’s motion, the court
admitted the first statement.
The appellate court found error. It declined to rule on whether “Crawford applies to the rule of
completeness,” but ruled that introduction of the statement about intimidation violated his
Confrontation Clause rights because it was “clearly testimonial” based on its relaying past events
and not being response to an ongoing emergency. Reversed.
Stanley v. Commonwealth, No. 2007-CA-002211-MR, 2010 WL 323123 (Ky. Ct. App. Jan. 29,
2010) (unreported)
1 Crawford v. Washington, 541 U.S. 36 (2004). 2 Bruton v. United States, 391 U.S. 123 (1968).
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At trial the court admitted the investigating detective’s testimony recounting statements the
victim made to him the day after the alleged robbery.
The appellate court reversed and held that the statements were testimonial because they relayed,
in the past tense, “what happened,” were for the “primary purpose to establish criminal liability,”
and were “the day after the robbery” concluded. The admission was a “manifest injustice” that
had “a substantial rights of the defendant” because there was no other inculpating evidence.
People v. Ortiz, No. B199037, 2010 WL 312492 (Cal. Ct. App. Jan. 28, 2010) (unreported)
The trial court admitted the tape recorded statement of an interview of an unindicted
coconspirator. The appellate court held that the recorded statement was testimonial because it
was custodial, “narrative,” and did not further the purposes of the conspiracy since it thwarted
the conspiracy. Reversed.
State v. Mooney, No. 09CA002, 2009 WL 3691309 (Ohio Ct. App. Nov. 3, 2009) (unreported)
At trial for possession of marijuana, the court admitted, over the pro se defendant’s objection, an
officer’s testimony about whether the voice the nontestifying informant heard on a wire transfer
was the defendant’s voice. Reversed.
Battle v. State, 19 So.3d 1045 (Fla. Dist. Ct. App. 2009)
At trial for burglary, the trial court erroneously admitted the testimony of a detective about the
nontestifying complainants’ statements to him. The statements were about the amount and
denomination of the money stolen, which served as the prosecution’s basis for identifying the
defendant as the perpetrator. The appellate court held that the statements were testimonial
because they were made in response to police questioning and while the defendant was in police
custody and, thus, not in an attempt to respond to an ongoing emergency. Reversed.
Coleman v. Commonwealth, No. 200S-SC-000072-MR, 2009 WL 3526657 (Ky. Oct. 29, 2009)
(unreported)
At trial, court allowed a police officer to testify that the witnesses he interviewed all gave a
consistent account of the crime that differed from the defendant’s account. The interviewed
witnesses were not cross-examined and were not unavailable to testify. The appellate court held
that the statements, made to the police officer in the course of his investigation, were “squarely
within the category of ‘testimonial’” statements. It rejected the argument that simply because the
witnesses were “available” to the defense by virtue of being under prosecution subpoena, the
prosecution had met its Sixth Amendment obligations: “If anything, the ready availability of the
witnesses in this cases multiplies the error, because the failure to call them demonstrates a clear
attempt to shift the burden to the defense.” The admission was not harmless beyond a reasonable
doubt. Reversed.
State v. Anwell, No. 2008-P-0111, 2009 WL 2915764 (Ohio Ct. App. Sept. 11, 2009)
(unreported)
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The nontestifying complainant’s statements to the investigating officer were “clearly
testimonial,” and admitting them violated the defendant’s right to confrontation. Even if the
statements were an excited utterance, which the court held they were not, they would be
testimonial hearsay because they were the product of police questioning and led to the
defendant’s trial and conviction. Reversed.
Verdree v. State, 683 S.E.2d 632 (Ga. Ct. App. 2009)
The trial court ruled that the codefendant’s statements made during custodial interrogation were
not testimonial up until the point he admitted to the crime because they were in furtherance of a
conspiracy.
The appellate court reversed and held they were testimonial statements because it was made
“during the course of an investigation,” not during the perpetuation of a conspiracy. The error
was prejudicial because it was the only “undisputed evidence which conclusively placed” the
defendant at the scene of the crime.
State v. Cibelli, No. 06-01-00106, 2009 WL 1635250 (N.J. Super. Ct. App. Div. June 12, 2009)
(unreported)
A nontestifying secretary’s statement to an investigating officer that, based on her search of the
business’s records, the victim had not been at the business on the day of the crime was a
testimonial statement because it was made to an officer during the course of his investigation.
The objected to error was not harmless beyond a reasonable doubt because the prosecution
emphasized the statement in his closing argument, contrasting the nontestifying witness’s
statement with the defendant’s version of events. Reversed.
State v. Brown, 961 A.2d 481 (Conn. App. Ct. 2009)
At trial, the state presented evidence that the complainant related to a shooting ran to a nearby
health care facility. At the facility, he was placed in an ambulance, where he was joined by an
officer “to obtain a dying declaration.” The statement identified the defendant as the shooter and
indicated the shooting was in the course of an argument, but the complainant “became evasive as
to what the argument was about.” The victim survived, but refused to testify at trial.
The appellate court ruled that the statements to the officer were testimonial because the victim
“should have been under the reasonable expectation that his statement would later be used” in a
prosecution of the assailant. Further, there was no ongoing emergency because the victim was
“under no present threat.” Even though the U.S. Supreme Court has repeatedly suggested that
dying declarations may be a historic exception to the Confrontation Clause, the court did not
explicitly address whether the statement was admissible as such. Reversed.
Toledo v. Sailes, 904 N.E.2d 543 (Ohio Ct. App. 2008)
The nontestifying complainant’s statements made at the scene to investigating officers were
testimonial because they were made after the scene had been secured and were for the primary
purpose to clarifying her version of past events. Reversed.
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State v. Phillips, No. 05-12-1249, 2008 WL 4964006 (N.J. Super. Ct. App. Div. Nov. 24, 2008)
(unreported)
Raising the confrontation issue sua sponte, the appellate court found that a police officer’s
testimony about what the codefendants said when they saw the defendant, i.e. the defendant “set
us up,” violated the Confrontation Clause because it was an out-of-court statement used against
the defendant, who had no opportunity to cross-examine the codefendants. The error was
“clearly capable of producing an unjust result” because the prosecution used the statement to link
the defendant to the codefendants and their gang activities. Reversed.
State v. Rufus, No. 90578, 2008 WL 4681392 (Ohio Ct. App. Oct. 23, 2008)
At a bench trial, the court admitted, over defense objection, the investigating officer’s testimony
about what an eight-year-old witness told him about the crime. The appellate court ruled that the
statement was testimonial because it was obtained after the defendant and alleged victim were
either in custody or being treated by emergency services personnel and because the statement
was related to an interview primarily about whom the primary aggressor was. The error was not
harmless beyond a reasonable doubt, in part, because the trial judge explicitly stated that he
found the statement corroborated the alleged victim’s story. Reversed.
In re: A.J.W., 666 S.E.2d 889 (N.C. Ct. App. 2008) (table decision)
The trial court admitted statements made to investigating police officers of two nontestifying
witnesses. The trial court noted, but declined to follow, Crawford. The appellate court found
“fundamental error” and that the statements identifying the defendant as the perpetrator as
“unquestionably testimonial.” Dismissed as to one defendant, new trial granted as to other.
Sanon v. State, 978 So.2d 275 (Fla. Dist. Ct. App. 2008)
A statement the defendant’s son made to officers was testimonial because the statement
described action twenty minutes prior to the statement, the officers approached the son rather
than the other way around, and there was no ongoing emergency when the statement was made.
The statement described his father throwing the family dog off a balcony and was admitted over
the defendant’s objection at a trial for animal cruelty. Reversed.
Commonwealth v. Williams, No. CP-06-CR-1324-2005, 5 Pa. D. & C. 5th 129, 2008 WL
4768868 (Pa. Ct. Com. Pl. Jan. 16, 2008) (unreported)
At trial for attempted murder, the court admitted the victim’s statements made to police officers
while she was being treated at the hospital. The trial and appellate courts found that the
statements were excited utterances, but were testimonial hearsay because they were “the result of
formal police questioning.” The court affirmed the grant of habeas corpus relief without
analyzing harm.
Lee v. State, 270 S.W. 496 (Ark. Ct. App. 2008)
Over trial counsel’s objection, the investigating officer repeatedly testified as to what a then
deceased witnessed had told him during the course of his investigation of an alleged credit card
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fraud. The witness was the owner of the business’s credit card and said that he had feared that
the defendant employee would unlawfully try to use the card, so he deactivated it. He also
testified that the witness said the defendant should have, but did not, return the credit card.
The appellate court reversed. It held that because the statements established past facts, they were
testimonial. They were offered for the truth, and not to establish why the officer arrested the
defendant, because of how the prosecution used the statements—to demonstrate that the
defendant did not have permission to use the card—and because there was not an instruction
limiting their use. They were not used in rebuttal or for some other purpose. Reversed.
People v. Chavez, No. B188195, 2007 WL 4201292 (Cal. Ct. App. Nov. 29, 2007) (unreported)
At trial for attempted murder, the court admitted the testimony of the investigating officer which
recounted statements of two nontestifying witnesses. Trial counsel did not make objections on
Confrontation Clause grounds, but because the appellate court found no “tactical reason for
counsel having failed to make them,” it considered the constitutional question after resolving
evidentiary rulings against Chavez. It held both witnesses’ statements testimonial. The first
statement was testimonial because even though it was made immediately after the officer’s
arrival at the scene of the crime with the suspect at large, the danger had passed, the officer
described the interaction as an interrogation, and the “comprehensive statement” described past
facts. The statement of the second witness, the victim, was testimonial because, even though it
may have been an excited utterance, of the length of the interrogation—thirty to forty minutes—
and because it was in response to police interrogation. Reversed.
Toledo v. Loggins, No. L-06-1355, 2007 WL 3227385 (Ohio Ct. App. Nov. 2, 2007)
(unreported)
At a bench trial for assault, admission of the complainant’s statement to the police, who
responded to a 911 call over two hours after it was made, was error because the statements were
testimonial, and the complainant did not testify. The statements were testimonial because they
were made well after any emergency had subsided and because the complainant and the
defendant were separated at the time the statement was made. The court did not discuss
prejudice or harmlessness. Reversed.
State v. Siler, 876 N.E.2d 534 (Ohio 2007)
To determine whether a child declarant’s statement is testimonial, courts should apply the
“primary-purpose test” announced in Davis: “[Statements] are testimonial when the
circumstances objectively indicate that there is no . . . ongoing emergency, and that the primary
purpose of the interrogation is to establish or prove past events potentially relevant to later
criminal prosecution.”
The Ohio Supreme Court rejected the argument that, because of their diminished capacity for
reflection, the statements of children should, applying the objective witness test announced in
Crawford, always be nontestimonial. Applying the test to this case, the court held that
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statements made during the interrogation of a three-year old declarant resulted in testimonial
statements where the interview was conducted by a specially trained police officer whose
primary purpose was to investigate a possible crime. Judgment of the appellate court affirmed.
Gifford v. State, 652 S.E.2d 610 (Ga. Ct. App. 2007)
At a trial for armed robbery, the investigating officer testified about statements made by the
victim, a gas station attendant. Prior to trial, the victim died of natural causes. The appellate
court ruled that because the victim’s statements were made to the officer during the course of his
investigation, they were testimonial hearsay. Their admission at trial was not harmless beyond a
reasonable doubt, even though fingerprints placed the defendant at the scene, because the
testimonial hearsay provided the only direct evidence that the store in question had been robbed.
Reversed.
Lindsey v. State, 651 S.E.2d 66 (Ga. 2007)
At trial, the court admitted the testimony of an Assistant District Attorney (ADA) regarding a
statement made to him in the course of his investigation of the case. The ADA testified that the
witness told him that “by coming to testify [on his behalf], we were saving him three bullets.”
The statement was introduced as evidence of hostilities between the witness and the defendant.
The state supreme court ruled that the statements were testimonial because they were made to a
government officer investigating a crime. The court did not examine prejudice or harmlessness.
Reversed.
State v. Veal, 139 Wash. App. 1023, 2007 WL 1748102 (Wash. Ct. App. 2007)
Prior to trial, the court ruled that if the defendant testified that the nontestifying complainant said
that the truck belonged to the complainant and that he had bought it from her, then the state
could introduce the complainant’s account of the defendant stealing the truck from her, which
she gave to a police officer at the scene of the arrest.
The appellate court held that the statements were testimonial because they were made to the
officer after the “startling event ceased.” The error was not harmless because the statements
would have been the only evidence countering the defendant’s proffered account of the events.
[Note that the defendant never actually testified and the testimony was never actually
introduced.] Reversed.
State v. Rodriguez, No. A05-1583, 2006 WL 2806671 (Minn. Ct. App. Oct. 3, 2006)
(unreported)
At trial, the court admitted the testimony of a police officer recounting the statements of a
nontestifying confidential informant. The informant did not respond to subpoenas and was
deemed unavailable to testify by the trial court.
The appellate court found plain error and reversed. It was “particularly troubled” because the
informant’s statements provided the only evidence identifying the defendant as a participant in
the alleged crime.
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State v. Parks, 142 P.3d 720 (Ariz. Ct. App. 2006)
At trial for manslaughter, the court admitted the statements the defendant’s nontestifying son
made to the investigating officer indicating that the defendant was the perpetrator. The
statements were made after the officer became aware that both the defendant’s son and brother
were witnesses and after he had separated the two witnesses.
The appellate court held, on remand from the Arizona Supreme Court that the statements were
testimonial hearsay because the purpose of the officer’s questioning was “to obtain information
regarding a potential crime.” It emphasized that the officer’s “individual and sequential
interview with [the son and uncle] reflected the police officer was operating in an investigative
mode.”
State v. Melching, 633 S.E.2d 311 (W. Va. 2006)
At trial for domestic battery, the court admitted the testimony of the responding police officer
and the neighbor responding to the scene of the alleged incident. Both testified to statements the
nontestifying complainant made to them over a defense objection.
The appellate court ruled that the statements to the police, who arrived fifteen minutes after the
alleged incident and after the defendant had left the scene, were testimonial hearsay. It declined
to rule on the statements to the neighbor so that the lower court could develop a record regarding
whether the neighbor was responding to an ongoing emergency. The court discussed at length
the adverse effects of requiring survivors of domestic violence to appear in court, but noted that
forfeiture by wrongdoing may be an available legal remedy if the prosecution can show the
defendant continued to intimidate the complainant. The court remanded for the court below to
determine whether such a finding could be properly raised in this case.
State v. Berezansky, 899 A.2d 306 (N.J. Super. Ct. App. Div. 2006)
At trial for driving under the influence, the court admitted blood test results over a defense
objection and without requiring the person conducting the blood test or preparing the report to
testify. Prior to trial, the defense had requested the notes from the testing and access to any
portion of the remaining blood sample, pursuant to a state statute. His requests were ignored.
The appellate court ruled, as a matter of first impression, that admission of the results violated
the defendant’s Confrontation Clause rights, “In order to use that evidence and not run afoul of
the Confrontation Clause, the State must obtain defendant’s consent, or failing that, must justify
its admission at a hearing.” It emphasized that it is the government’s burden to prove
admissibility, and that even in the face of a state statute requiring a defendant to give notice of an
intention to challenge the evidence, such a statute is “to notify the State of his refusal to stipulate
to the lab report and to assert that the lab results . . . will be contested at trial.” The court
analogized the blood test results to tests of controlled substances, previously held to be
testimonial hearsay.
Bell v. State, 928 So.2d 951 (Miss. Ct. App. 2006)
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At trial for murder, the court admitted the testimony of police officers recounting the statements
of the defendant’s daughters who were eyewitnesses to their mother’s alleged murder. The
daughters did not testify at trial.
While the defendant’s appeal was pending, the U.S. Supreme Court decided Crawford. The
appellate court held that Crawford applies retroactively to cases pending on appeal. It also held
that the daughters’ statements, made to police officers in the course of their investigation, were
“no doubt” testimonial. It also held that because there was no other eyewitness testimony to
incident, the erroneous admission was not harmless.
State v. Kirby, 908 A.2d 506 (Conn. 2006)
The trial court admitted the statements of the deceased complainant made to three people: a
police dispatcher who received the complaint, the officer who initially responded to the scene,
and the emergency technician who treated the complainant. The complainant told the dispatcher
the defendant surprised her when she got home and assaulted and abducted her. The responding
officer testified to the detailed account of the incident that the complainant told him.
The appellate court held that the statements to the dispatcher and investigating officer were
inadmissible testimonial hearsay. The statements to the dispatcher were testimonial because they
were not made during an ongoing emergency or in the presence of a “bona fide physical threat.”
The court noted that although the statements may have been made in part to obtain medical
assistance, viewed on a whole, they were for the primary purpose of investigating and
apprehending a suspect from a prior crime. It noted that the call largely consisted of her account
of the completed crime. The statements to the responding officer were testimonial because the
officer was investigating the completed crime.
The statements to the emergency technician, however, were nontestimonial because they were
made for the purpose of obtaining medical assistance, particularly in light of the absence of any
identification of the suspect.
The court declined to address harmlessness and prejudice because the state failed to raise it.
Reversed.
State v. King, 132 P.3d 311 (Ariz. Ct. App. 2006)
At trial for cruelty to animals, the court admitted a tape of the 911 call during which the
informant identified the defendant by name, provided a description of him, and provided his date
of birth. The informant stated that the defendant had left her house in the previous five minutes.
The court also admitted statements the informant made to the responding police officer who she
spoke with at her house. Both statements were admitted as excited utterances. The informant
did not testify at trial. On appeal, the state argued that excited utterances could not be considered
testimonial because declarants making them necessarily have no reasonable expectation about
their use at trial.
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The appellate court reversed. It held that excited utterances must be examined on a case-by-case
basis to determine whether statements are testimonial, with the “primary factor” being whether
“a reasonable person in the position of the declarant would objectively foresee that his statement
might be used in the prosecution of a crime.” Not having the guidance of Davis, the court
decided to remand to the trial court to determine whether the 911 statements were made with
such an expectation. For the statements to the police, the court held that regardless of whether
the statements were made in response to questions, a person in the declarant’s position would
expect that the statements would be in a prosecution. It emphasized that she made the statements
when the police officer came to investigate the case and declined to require the statements be
made in response to formal or structured questioning.
State v. Maclin, 183 S.W.3d 335 (Tenn. 2006)
The state supreme court consolidated two cases on appeal to determine the application of the
Confrontation Clause to excited utterances.
The Tennessee Supreme Court held that whether a statement is testimonial must be determined
objectively, by examining whether the circumstances under which the statement was made
“would lead an objective witness to reasonably believe that the statement would be available for
use at a later trial.” The court also compiled a non-exhaustive list of factors to be considered
when deciding whether a statement is testimonial: (1) whether the declarant was a victim or
observer, (2) whether contact was initiated by the declarant or law enforcement, (3) the degree of
formality of the surrounding circumstances, (4) whether the statement was in response to
questioning, whether the questioning was structured, and the scope of the questioning, (5)
whether the statement was recorded, (6) the declarant’s purpose in making the statement, (7) the
officer’s purpose in speaking with the declarant, and (8) whether an objective declarant under the
circumstances would believe that the statements would be used at trial.
The court rejected both the defendant’s and the government’s request for per se rules in favor of
a totality of the circumstances approach. The defendant requested a per se rule that statements
made to police officers were testimonial hearsay. The government requested a per se rule that
excited utterances were not. The court also ruled that the analysis under Ohio v. Roberts still
applied to nontestimonial hearsay.
Turning to the facts of the consolidated cases, the court found that the nontestifying domestic
violence complainant had made a testimonial statement. The court noted that she initiated
contact with the police and that when the police arrived she provided a detailed account of the
alleged events. By contrast, the court found that the bystander’s statement, made after flagging
down the police officer, that a “large black man with a bald head” had just kicked down a door,
was not testimonial hearsay. It also held the latter statement was an excited utterance, a firmly
established exception to the hearsay rule.
State v. Siler, 843 N.E.2d 863 (Ohio Ct. App. 2005)
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At trial for the murder of the defendant’s former spouse, the court admitted the testimony of the
investigating detective, who relayed the statements of the defendant’s son, who did not testify.
The son provided the detective with a firsthand account of the defendant’s alleged murder of his
mother.
The appellate court reversed. It held that the statements, although excited utterances under Ohio
law, were testimonial hearsay. The court emphasized that the statements were made in response
to the investigating detective’s structured questioning, during which he engaged in techniques
specifically tailored to interviewing child witnesses. Because the remaining evidence was
circumstantial and not “overwhelming,” the court held the error was not harmless beyond a
reasonable doubt.
Walker v. State, 180 S.W.3d 829 (Tex. App. 2005)
At trial for robbery, over a defense objection, the court admitted the investigating officer’s
testimony recounting an identification of the defendant by a nontestifying witness. The witness
was found with the credit cards from the robbery. The investigating officer showed a photo
spread to the witness, and she identified the defendant as a possible suspect (the court’s opinion
is unclear as to what the witness said that made the defendant a suspect).
On appeal, the court held that the identification statement was testimonial hearsay because it
occurred while the witness was in custody and was the product of formal police questioning in
the form of a photo array. Reversed.
Commonwealth v. Gonsalves, 833 N.E.2d 549 (Mass. 2005)
Prior to trial, the prosecution moved to admit the statements of the unavailable, but uncrossexamined, complainant. She had made statements to the police who responded to the scene.
When the police arrived, the defendant was not present, the complainant had “no obvious
injuries,” but she was “crying and hysterical, ranting, loud, hyperventilating, and pacing around
the room.” In response to police questioning, the complainant described the defendant’s physical
attack on her.
The state supreme court held that statements to investigating police officers are, absent an
emergency, per se testimonial. Testimonial statements include those obtained as part of
“preliminary fact gathering” because “[t]here can be no doubt that interrogation involving
preliminary fact gathering is part of a criminal investigation. A criminal investigation may begin
as soon as an officer turns her head.”
By contrast, statements made while to an officer during the officer’s “community care taking”
and “government peacekeeping” are nontestimonial. These exceptions apply to situations where
“there is an objectively reasonable basis for believing that the safety of an individual or the
public has been jeopardized.”
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Turning to the facts of the case, the court concluded that the complaint’s statements were
testimonial hearsay because nothing in the record indicated that the police were addressing an
emergency when she made the statements to them. The record, however, was not yet complete,
and the court remanded, allowing the prosecution to expand the record, should it so desire.
State v. Parks, 116 P.3d 631 (Ariz. Ct. App. 2005)
At trial for murder, the court admitted the statements of the defendant’s late son, who had spoken
to the responding officers and given a videotaped interview. The trial court admitted the
statements at the scene as an excited utterance.
The appellate court reversed. It held, “Whether an excited utterance will be testimonial [hearsay]
depends on the circumstances when the statement was made.” It explained that, under state law,
a statement can be made under an emotional state that “still[s] reflection,” but nonetheless be
made with a reasonable appreciation or expectation that the statement will have an impact on
“whether an arrest is made, charges are brought or guilt is attributed.” Applying this to the facts,
the court found that the son’s statements at the scene of the crime were testimonial. They were
made after the scene was secure, and “although emotional and upset, [the son] appeared to have
appreciated what he had witnessed would have significance to a future criminal prosecution.
When the sheriff’s deputies arrived at the scene, they heard [the son] and his sister yelling their
‘dad was just defending himself.’”
State v. Walker, 118 P.3d 935 (Wash. Ct. App. 2005) (consolidated case)
In consolidated cases, the court held that statements made in response to police inquiries were
testimonial, but that statements made by an eleven-year-old in response to her “concerned
mother[‘s questions]” were not testimonial hearsay. In the first case, the complainant gave a
statement to the investigating officer who visited him at the hospital several hours after the
incident. The officer testified to the statements despite the witness’s failure to testify, and the
trial court admitted the statements as excited utterances. In the second case, the complainant’s
mother “sensed something was wrong,” and asked the complainant if something had happened
and if the complainant’s grandfather had tried to touch her. The complainant said yes in
response to both questions. The mother testified to the statements at trial, and the complainant
refused to answer the prosecution’s questions about the alleged molestation.
In the first case, the court of appeals held that despite the statement correctly being characterized
as an excited utterance, it was testimonial because it was the product of structured police
questioning. In the second case, the court rejected the argument that the statements were
testimonial because the mother’s purpose in asking her daughter the questions was to gather
evidence against the defendant. It noted that the mother testified she had no intention of
contacting the authorities because she thought the family could work it out. She only reported
the incident after the defendant had broken into her home and further injured the complainant.
Because “nothing in the record” suggests the mother initiated the conversation “for the purposes
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of gathering information with which to prosecute” the defendant, the statements by the
complainant to her mother are not testimonial.
Commonwealth v. Foley, 833 N.E.2d 130 (Mass. 2005)
At trial for assault and battery and assault and battery with a dangerous weapon, the court
admitted the nontestifying complaint’s statements made to the police officer immediately upon
arriving on the scene and in response to extended questioning. The initial questions were
regarding the location of the defendant and whether the complainant required medical attention.
The remaining questions outlined the details of the allegations. The other evidence of the assault
and battery was the complainant’s documented physical condition and the defendant’s statements
that he choked her.
The appellate court, reviewing for a miscarriage of justice, held that the statements made during
extended questioning were testimonial per se because they were made in response to
investigative interrogation. The initial questions were not because they were made while the
police engaged in “community caretaking,” ensuring the scene was secure and ensuring the
complainant did not require medical attention. The error was not harmless for the assault with a
dangerous weapon charge because the statements were the only evidence of the weapon used. In
light of the physical evidence and the defendant’s statement, the error was harmless with regards
to the simple assault and battery charge. Reversed.
Commonwealth v. Rodriguez, 833 N.E.2d 134 (Mass. 2005)
At trial for assault and battery of his son, the court admitted statements made by the defendant’s
nontestifying son and daughter. The statements were made to the officers responding to a 911
call and while the defendant was being interviewed by two other officers outside his house,
where his children were being interviewed. The officers testified about the statements,
recounting the details of the alleged incident.
The appellate court reversed. It held that the statements were “per se testimonial” because the
statements were made in response to police interrogation. The police were not securing the
scene, and nothing in the record indicated that the children were in need of immediate medical
attention. The error was not harmless beyond a reasonable doubt because the hearsay statements
were the only explanation of the events that transpired.
Moore v. State, 169 S.W.3d 467 (Tex. App. 2005)
At trial for domestic violence, the court admitted the videotaped statement of the nontestifying
complainant, taken shortly after the police arrived at the scene, as an excited utterance.
The appellate court reversed. It held that although the statement may have been an excited
utterance, it was testimonial hearsay and that excited utterances are not necessarily
nontestimonial. The court also declined to adopt either a “formality” of the interview or
“declarant intent” inquiry as the only means of determining whether a statement is testimonial.
The statement in question was testimonial because taping the interview made the statement
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formal and the complainant’s professed understanding of her Miranda rights, as she indicated on
the video, demonstrated that she knew the statements could be used in a prosecution.
In re T.W., No. B175355, 2005 WL 1761964 (Cal. Ct. App. July 27, 2005) (unreported)
At a hearing to determine whether she should be a ward of the court based on the defendant
driving her mother’s car without permission and other vehicle code violations, the court admitted
the defendant’s mother’s statement to the investigating officer. The defendant’s mother said that
the defendant did not have permission to use her car. She did not testify at the hearing.
The appellate court reversed. It held that the statement to the officer was the sort of “formal
statement to government officers” that the Crawford court had in mind when it listed several
forms of testimonial hearsay. It admonished the state for its “selective quotations from
Crawford” and its failure to address the above quoted language. Because the mother’s statement
was the only evidence of the lack of consent, the court found that the error was not harmless.
State v. Byrd, No. 20580, 828 N.E.2d 133 (Ohio Ct. App. 2005)
At trial for simple assault, the court admitted the testimony of an officer who had taken a
statement from the nontestifying complainant.
The appellate court reversed, holding that a statement given in an interview and to a police
officer is the sort of statement a reasonable person would expect to be used in an investigation or
prosecution. The court did not address harmlessness, but it did note that the state’s case consisted
entirely of hearsay statements of the complainant.
State v. Farris, No. 84795, 2005 WL 852409 (Ohio Ct. App. April 14, 2005) (unreported)
At trial for burglary, the court admitted the testimony of a detective who recounted a nontestifying, alleged accomplice’s statements implicating the defendant.
The appellate court reversed and held that the accomplice’s statement, taken while in custody
and in connection with an investigation of the accomplice, was testimonial hearsay and should
not have been admitted.
State v. Grace, 111 P.3d 28 (Haw. Ct. App. 2005)
At trial for abuse of family or a household member, the court admitted the statements of the
nontestifying daughters of the defendants. The statements were made to the investigating police
officer when he reported to the scene of the alleged incident.
The appellate court reversed. It noted that it was in “a bit of quandary” because of the Crawford
court’s “objective witness” formulation to determine whether it was reasonable to assume the
statement would be used in an investigation or prosecution (and was, thus, testimonial). The
court followed California precedent holding that “objective witness” referred to a witness in
circumstances similar to the one in question and did not include subjective characteristics such as
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the person’s age. It held the statements here were testimonial and were an “easy case” because
they were made to law enforcement officials.
State v. Page, 104 P.3d 616 (Or. Ct. App. 2005)
In an appeal largely addressing whether the confrontation issue was preserved and, since it was
not, whether it amounted plain error, the court ruled that the alleged accomplice’s statements to a
police interrogator were inadmissible testimonial hearsay because they were made in the court of
police interrogation and because the defendant had not had the opportunity to cross-examine the
alleged accomplice.
People v. Victors, 819 N.E.2d 311 (Ill. App. Ct. 2004)
At trial for domestic battery, the court admitted the testimony of the investigation officer,
recounting the statements the complainant made to him after he finished interviewing the
defendant.
The appellate court reversed. It held that Crawford proscribed the admission of “testimonial
evidence,” including “out-of-court statements that are offered to establish or disprove an element
of the offense charged or a matter of fact.” This definition appears considerably broader than
other cases defining Crawford’s contours. It focuses on why it is offered at trial, rather than why
it was made in the first instance. The statements at issue were testimonial because “[t]he State
offered this testimony to establish an element of the offense.”
Jenkins v. State, 604 S.E.2d 789 (Ga. 2004)
Prior to trial, the defendant sought to exclude statements of the defendant’s deceased uncle, made
to the police during their investigation. The trial court ruled them admissible under the
“necessity” hearsay exception.
The appellate court reversed. It held that the statements were testimonial because they were
taken by the police during their investigation. It noted that Crawford “limits the viability of the
necessity exception to the hearsay rule.”
People v. Bell, 689 N.W.2d 732 (Mich. Ct. App. 2004)
At trial for felony murder and solicitation of arson, the court admitted a statement the alleged
coperpetrator made to the police during custodial interrogation. The coperpetrator did not
testify.
Applying Crawford retrospectively, the appellate court reversed. It held that because the
statement was made during the course of a police interrogation, it was “clearly testimonial.” Its
admission was not harmless because it provided the only evidence of solicitation, the
prosecution’s theory of culpability for both crimes.
People v. Ruiz, B169642, 2004 WL 2383676 (Cal. Ct. App. Oct. 26, 2004)
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At trial for possession of a firearm and ammunition, the court admitted the nontestifying
complainant’s statement to the (testifying) reporting officer. The statement was taken while the
defendant was not at the scene.
The appellate court reversed, holding that the statement was testimonial hearsay because it was
made to an officer in the course of his investigation. The court noted the officer’s training
experience in taking statements from victims of domestic violence as evidence that the officer
had taken the statement with the intention of developing facts for the investigation and trial.
Lee v. State, 143 S.W.3d 565 (Tex. Ct. App. 2004)
At trial, the court admitted the statement of the nontestifying codefendant. The codefendant had
given the statement to the police at a roadside stop, after the defendant, who was with him, had
been arrested.
On appeal, the state argued that because the codefendant “was not in custody, at the “jailhouse,”
or “sitting down to give a statement after being given Miranda warnings” that his statement was
not testimonial. The court declined to “adopt such a narrow view” of testimonial hearsay and
ruled that statements made in response to a police officer’s question about whether the $190,000
found in the car was obtained from the sale of drugs constituted testimonial hearsay. Because
without the statement there was only “weak circumstantial evidence” to link the money to the
defendant, the error was not harmless beyond a reasonable doubt. Reversed.
State v. Morton, 601 S.E.2d 873 (N.C. Ct. App. 2004)
At trial for possession of stolen property, the court admitted the statement of a nontestifying
witness. The witness, after being read his Miranda rights, stated that he had sold the defendant
stolen goods and that the defendant knew they were stolen at the time of the sale.
The appellate court reversed. It held that because the statements were made in the course of a
custodial interrogation after Miranda warnings had been given, they were testimonial. The
evidence was not harmless beyond a reasonable doubt because the witness offered the only
evidence that the defendant knew the property was stolen, an element of the crime.
People v. Pirwani, 14 Cal. Rptr. 3d 673 (Cal. Ct. App. 2007)
At trial for abuse of a dependent adult, the court admitted a statement pursuant to California
Evidence Code section 1380, allowing admission an unavailable declarant upon “a showing of
particularized guarantees of trustworthiness” and where the statement is “memorialized in a
videotape recording made by a law enforcement official.”
The California Supreme Court held reversed, holding that section 1380 is unconstitutional on its
face. It explained that because the statement must be made to law enforcement officers it would
always memorialize a “testimonial” statement within the meaning of Crawford.
In re: R.E.L., 111 P.3d 487 (Colo. App. 2004)
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At a juvenile delinquency hearing for sexual assault on a child, the court admitted statements the
complainant made to a police officer during a “forensic interview.”
The appellate court reversed. It held that the answers to the questions, in a “question and answer
format appropriate to a child,” were testimonial hearsay, “within even the narrowest formulation
of the Court’s definition of that term.” It also rejected the state’s argument that the defendant
had waived his Confrontation Clause argument by stipulating that the child was incompetent to
testify. It explained that the stipulation “merely established the unavailability of the witness.”
State v. Allen, No. 82556, 2004 WL 1353169 (Ohio Ct. App. June 17, 2004) (unreported)
At trial for murder, the court admitted the written statement of the alleged coperpetrator, who
had been declared unavailable after invoking his right to remain silent. The coperpetrator wrote
out the statement during police interrogation, and the statement inculpated the declarant and the
defendant. While the defendant’s appeal was pending, the Supreme Court decided Crawford.
The appellate court held that because the statement was, under Crawford, clearly testimonial
because it was made to the police during custodial interrogation. The court explained that the
statement would have been admissible under Roberts because it was self-inculpatory without
trying to shift blame, but that under Crawford, it was nonetheless inadmissible. Reversed.
State v. Cox, 876 So.2d 932 (La. Ct. App. 2004)
At trial, the court admitted a nontestifying coconspirator’s statement made to the police during
an interrogation under the coconspirator exception to the hearsay rule.
The appellate court reversed. It held that the statement was not admissible under the
coconspirator exception, and even if it was, the statement made during police interrogation was
testimonial hearsay and inadmissible under the Confrontation Clause. It explained that the
Confrontation Clause extended to all testimonial statements, even those in furtherance of a
conspiracy.
People v. Jones, No. 246617, 2004 WL 1292056 (Mich. Ct. App. June 24, 2004) (unreported)
At trial, the court admitted the inculpatory statements of the defendant’s two nontestifying
codefendants. The statements were made during police questioning and implicated the defendant
and the codefendants.
The appellate court reversed, holding that statements taken during the course of police
questioning are testimonial hearsay and inadmissible under the Confrontation Clause, even if
they are admissible as statements against penal interest.
Davis v. United States, 848 A.2d 596 (D.C. 2004)
At trial for perjury, the court admitted the confession of the defendant’s nontestifying
coperpetrator of a murder. The defendant had testified that, contrary to his confession and
pretrial statements, someone other than the coperpetrator committed the crime.
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On appeal, the court held that admitting the confession of the coperpetrator violated the
defendant’s Confrontation Clause rights because the confession was taken during police
interrogation. Reversed.
State v. Cutlip, No. 03CA0118-M, 2004 WL 895980 (Ohio Ct. App. April 28, 2004)
(unreported)
At trial, the court admitted the statements of the defendant’s two alleged accomplices, taken
during custodial police interrogation. The accomplices did not testify.
The appellate court reversed, holding that because the statements were taken during police
interrogation, they were testimonial hearsay. Because they were the only evidence that the
defendant was the third person involved in the robbery, the admission was not harmless.
Brooks v. State, 132 S.W.3d 702 (Tex. App. 2004)
At trial, the court admitted the nontestifying alleged accomplice’s custodial statement
implicating the defendant.
The appellate court reversed. It held that because the statement was made during a police
interrogation it was “testimonial as a matter of law.” The error was not harmless beyond a
reasonable doubt because it provided the only proof that the defendant had the intent to commit
the crime and actively participated in it, two elements the prosecution was required to prove for
its accomplice theory.
Other Testimonial Hearsay
U.S. Court of Appeals Cases
United States v. Jackson, 636 F.3d 687 (5th Cir. 2011)
At trial for conspiring to possess with intent to distribute cocaine, the government introduced
notebooks allegedly kept by a non-testifying co-conspirator. The notebooks, according to the
government’s expert, were used to keep a contemporaneous record of drug sells and buys.
The appellate court reversed. It held that the government had failed to meet its burden to prove
that the notebooks were not testimonial hearsay. The court explained that the government failed
to authenticate the notebooks and failed to establish that the contents in them were not made
under circumstances that an objectively reasonable person would expect to lead to trial
testimony. The court emphasized that it was the government’s burden to prove the notebooks
were admissible.
United States v. Smith, 640 F.3d 358 (D.C. Cir. 2011)
At trial for being a felon in possession of a firearm and drug trafficking, the court admitted a
letter from a court clerk stating that the clerk had reviewed court files that the defendant had
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been convicted of certain felonies. Copies of the files were not presented, and the clerk did not
testify.
The appellate court reversed. It distinguished this case from cases in which a clerk authenticated
court files. The latter do not violate the Confrontation Clause because they are not prepared for
the purpose of providing evidence of the conviction. The letter here, by contrast, was created for
that purpose.
United States v. Causevic, 636 F.3d 998 (8th Cir. 2011)
At trial for making a materially false statement about whether the defendant had ever committed
a crime, the court admitted a judgment to prove that the defendant had committed the crime
related to the judgment.
The appellate court reversed. It held that since Kirby v. United States, 174 U.S. 47 (1899), the
Supreme Court has, on Confrontation Clause grounds, barred the use of a conviction to show
anything other than the fact that a conviction occurred. In Kirby the Court did not permit the use
of a conviction for robbery to show that the goods possessed by the defendant had been stolen,
and the court here held that the conviction for murder could not be used to show that a murder
had been committed.
Gov’t of Virgin Islands v. Gumbs, No. 10-3342, 426 Fed. App’x 90 (3d Cir. May 4, 2011)
(unpublished)
At trial for possession of a firearm during the course of a violent felony, the government
introduced a certificate of no record found indicating that the defendant did not possess a license
to possess a firearm. The person preparing the certificate did not testify.
The appellate court found that, in light of Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009),
the trial court abused its discretion in admitting the certificate. The court explained that the lack
of license was an essential element to the charge and that the defendant’s guilt depends on the
accuracy of the certificate. The court did not discuss the significance of the certificate being
authored for the purpose of litigation.
Ocampo v. Vail, 649 F.3d 1098 (9th Cir. 2011)
At trial for first-degree murder, the major issue was whether the defendant was present at the
shooting. The trial court admitted the statements of two police officers relaying what they
learned during the course of their investigation. The first police officer testified that a nontestifying witness had eliminated other suspects, but not the defendant (even though the witness
knew the defendant and had been presented with a photo of him). The second police officer
testified that he had corroborated a testifying witness’s account through a non-testifying witness.
The account placed the witness at the scene and identified the defendant as the shooter.
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The state appellate court held that because the officers “did not testify to the substance” of the
out of court statements and because they only provided an “outline” the statements did not
violate the Confrontation Clause. The federal district court dismissed the petition for writ of
habeas corpus. The Court of Appeals reversed holding that “whatever the locution used, out-ofcourt statements admitted at trial are ‘statements’ for the purpose of the Confrontation Clause.”
Because the officers testified to the information from the non-testifying witness’s statements to
them, their testimony violated the Confrontation Clause.
State Court Cases
Commonwealth v. Guzman, 954 N.E.2d 590 (Mass. App. Ct. Oct. 4, 2011) (table decision);
Commonwealth v. Parenteau, 948 N.E.2d 883 (Mass. 2011)
At trial for driving with a suspended or revoked license for operating under the influence of
alcohol, the court admitted a certificate from the Registry of Motor Vehicles indicating that
notice of the revocation had been sent to the defendant.
Citing Massachusetts Supreme Court precedent, the court reversed. It explained that the
certificate did not simply attest to whether a record existed, “made a factual representation based
on those records,” and was, therefore, testimonial hearsay.
Diggs v. United States, 28 A.3d 585 (D.C. 2011)
A certificate of no license to carry a pistol is a testimonial document. Admitting it without
requiring the testimony of its preparer violated the defendant’s Confrontation Clause rights.
Timms v. United States, 25 A.3d 29 (D.C. 2011)
Admitting certificates of no record found at a trial for unlicensed possession of a firearm and
possession of unregistered ammunition violated the defendant’s right to confront the author of
the certificates where the author did not testify. Reversed.
Commonwealth v. Williams, 946 N.E.2d 716 (Mass. App. Ct. 2011)
At trial for possession of cocaine, admitting a certificate of analysis identifying the substance in
question and providing its weight violated the defendant’s Confrontation Clause rights where no
“authenticating witness” testified. Reversed.
Campos-Alvarez v. United States, 16 A.3d 954 (D.C. 2011)
At trial for carrying a pistol with a license and for possession an unregistered firearm, the court
admitted certificates of no record found related to the defendant and items in question.
The appellate court reversed. It held that the certificates were testimonial hearsay, citing prior
precedent, Tabaka v. District of Columbia, 976 A.2d 173 (D.C. 2009).
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Commonwealth v. Abrue, 11 A.3d 484 (Pa. Super. Ct. 2010)
At trial for resisting arrest, the court admitted the testimony of a police officer who arrived at the
scene and interviewed a nontestifying officer. The testifying officer recounted, over a defense
objection, what the nontestifying officer told him about the initiation of the encounter. The
defendant also testified and claimed that he acted in self-defense.
The appellate court reversed. It held that neither party had established whether the statement was
testimonial or nontestimonial, but that because the state bore the burden of establishing the
statement’s admissibility, the admission violated the defendant’s confrontation rights.
Cuadros-Fernandez v. State, 316 S.W.3d 645 (Tex. App. 2009)
DNA analysis certificates are testimonial hearsay, even where they do not contain an affidavit,
because they are “made under circumstances which would lead an objective witness reasonable
to believe that the statement would be available for use at a later trial.” The court reached that
conclusion for several reasons: (1) the analyst’s notes submitted with the certificate stating that
the report was requested by the police, (2) the results were reported to the police and to the
district attorney, and (3) the notes indicate the analyst knew the investigation concerned a
homicide. The certificates were the “functionally identical to live, in-court testimony doing
‘precisely what a witness does on direct examination’” because it was the only evidence of the
DNA results. Reversed.
Grant v. Commonwealth, 682 S.E.2d 84 (Va. Ct. App. 2009)
The trial court admitted a blood analysis certificate at trial for driving under the influence. The
certificate contained an “attestation clause” certifying the results. The appellate court held that
the attestation clause, but the not the actual results, in a blood alcohol analysis certificate is
testimonial hearsay. The results were not hearsay because they were generated by a machine,
not a person. The attestation, however, is testimonial because it was prepared “to prove facts
essential to the prosecution . . . that the breath test was administered by a licensed operator in
accordance with [state law.]” The person who administered the test testified, but the person who
created the certificate did not. Reversed.
People v. Darrisaw, 886 N.Y.S.2d 315 (N.Y. App. Div. 2009)
In a very short decision, the appellate court held that an “Affidavit of Regularity/Proof of
Mailing” prepared by the Department of Motor Vehicles was testimonial evidence because it
“served as ‘a direct accusation of an essential element of the crime.’” Reversed.
Tabaka v. District of Columbia, 976 A.2d 173 (D.C. 2009)
A certificate from the Department of Motor Vehicles that the clerk had searched for, but had not
found, evidence of a driver’s permit is testimonial because it is created “for the sole purpose of
providing evidence against a defendant.” Its admission, over defense objection, at a trial for
operating a motor vehicle without a permit was not harmless beyond a reasonable doubt because
it was the sole proof of the defendant’s non-licensure. Reversed.
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In re Welfare of M.L.B., No. A08-1109, 2009 WL 1851763 (Minn. Ct. App. June 30, 2009)
(unreported)
At trial for doing more than five hundred dollars worth of damage to property, the repair estimate
related to the alleged damage was testimonial hearsay because it was created for the purpose of
proving an essential element of the offense and the author of the estimate did not testify. The
court did not explicitly analyze harm. Reversed.
State v. Jorgensen, 754 N.W.2d 77 (Wis. 2008)
The transcript from a prior proceeding during which the prosecutor and the trial judge
commented on the defendant’s intoxication was testimonial hearsay. The trial judge, in the
transcript, states that the defendant was having a difficult time following instructions because of
intoxication and that the defendant violated his bond provision, the allegation for which he was
on trial. The prosecution said that the defendant, during the proceeding, smelled of alcohol, was
having a hard time communicating with his lawyer, had a pending intoxication charge, and
violated his bond provision. In the present case, the prosecution’s statement in closing argument
that the defendant was a “chronic alcoholic” and “smelled of alcohol” on the day in question was
also testimonial hearsay. Reversed.
People v. Wolters, 41 A.D.3d 518 (N.Y. App. Div. 2007)
An affidavit that the defendant was unlicensed at the time of the alleged offense, attested to by a
Department of Motor Vehicles official, who did not testify, constituted testimonial hearsay in a
trial for unlawfully operating or driving a motor vehicle without a license. The error was not
harmless beyond a reasonable doubt because without the affidavit, the evidence offered was
insufficient as a matter of law. Reversed.
State v. White, 920 A.2d 1216 (N.H. 2007)
At trial, the defense cross-examined a complainant about a prior case in which she had been the
complainant and the jury had acquitted the other defendant despite her testimony. The trial
court, in this case, allowed the state to introduce testimony of the other case’s investigating
officer, who testified that the other defendant had initially confessed but had later recanted. The
trial court, over a defense objection, admitted the evidence to counter the “misleading
advantage” obtained by the defense’s cross-examination of the complainant about the prior case
and her recantation.
The appellate court reversed, holding that the defendant had not opened the door to the testimony
and thereby waived any Confrontation Clause objection. It held that because the state was able
to, on redirect examination, have the complainant explain that while she initially thought that the
jury must have disbelieved her testimony in the prior case, she now realized the acquittal merely
meant the state had “failed to meet its burden in some way.” Since the state was able to correct
any misimpression, the defendant did not open the door to the testimony of confession and
recantation. The appellate court then held that the confession and recantation to the police
officer, obtained during interrogation was testimonial hearsay because “they were given under
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circumstances[, an interrogation,] objectively indicating that the primary purpose of the
interrogation was to establish past events potentially relevant to later criminal prosecution.”
[Note: The holding is largely unremarkable, but it may be noteworthy that the interrogation’s
primary purpose was for the later criminal prosecution of a different individual.]
Williams v. State, 947 So.2d 694 (Fla. Dist. Ct. App. 2007)
At trial, over a defense objection, the court admitted the testimony of the investigating officer
recounting the statements of his fellow officer, relaying contemporaneous observations of the
alleged incident. The codefendant successfully appealed his conviction, gaining relief on the
ground that admitting the fellow officer’s statements violated the Confrontation Clause. The
defendant lost the same issue on appeal.
The defendant filed a motion for rehearing realleging the Confrontation Clause violation. The
appellate court treated it as a petition for habeas corpus and granted relief. It held that the
statements of the nontestifying fellow officer to the testifying officer were testimonial, even
though they were contemporaneous observations of the alleged incident. It explained that the
fellow officer had an objectively reasonable expectation that the statements (which were being
taped) would be used in the prosecution of a crime and were therefore testimonial hearsay.
Hillard v. State, 950 So.2d 224 (Miss. Ct. App. 2007)
At trial for robbery and conspiracy to commit robbery, the court allowed, over a defense
objection, the prosecutor to read a transcript of the alleged accomplice’s testimony at his separate
trial. The accomplice refused to testify at the defendant’s trial.
The appellate court held that the testimony was “assuredly” testimonial hearsay and admitted in
violation of the defendant’s confrontation rights. The error was prejudicial because it provided
the only evidence of the defendant’s actions after the robbery and the only evidence of the
agreement to commit a crime. Reversed.
State v. Bird, 148 P.3d 1058 (Wash. Ct. App. 2006)
At trial, the court admitted the testimony of a police officer, who conveyed the statements of a
nontestifying witness to the alleged incident. The officer testified that the witness made
statements during an interview and the witness was “talking ‘kind of fast’ and he was ‘talking
louder than normal speak’” during the interview.
The appellate court ruled that although the witness “was still under the influence of a startling
event” during the interviews (qualifying the statements as excited utterances), they were
testimonial hearsay because there was no ongoing emergency when the interview took place.
Shennet v. State, 937 So.2d 287 (Fla. Dist. Ct. 2006)
Over a defense objection, the trial court admitted the recordings of a surveillance officer who
made statements as he observed the alleged crime. The officer did not testify at trial.
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The appellate court held that the statements were testimonial hearsay. It applied the “objective
test” outlined in Crawford, whether the reasonable expectation of an objective declarant was that
the statement would be used in investigation or prosecution of a crime. In holding the officer’s
contemporaneous observations were such statements, it emphasized that he “was aware that he
was in the midst of a surveillance investigation,” and that he “knew” his observations would
“have their place” in a criminal prosecution.”
Martin v. State, 936 So.2d 1190 (Fla. Dist. Ct. App. 2006)
At trial for possession of controlled substances, the court admitted, over a defense objection, a
Florida Department of Law Enforcement report finding that substances from the defendant were
“contraband.” The author of the report did not testify.
The appellate court, over a dissent, reversed. It held that the report was “obviously prepared for
litigation purposes.” It noted that the report was prepared by law enforcement, was prepared on
the occasion of the defendant’s arrest, and was offered by the prosecution. Thus, it rejected the
argument that it was a business record prepared by a neutral scientific agency and the dissent’s
argument that it was not testimonial because it could prove the defendant’s innocence. It
compared the report to “breath test affidavits,” something Florida courts had previously held
testimonial.
Williams v. State, 933 So.2d 1283 (Fla. Dist. Ct. App. 2006)
At trial for driving under the influence, the court admitted a breath test affidavit conveying the
results of the test. The author of the affidavit did not testify. The appellate court applied its prior
precedent regarding a lab report and held that the affidavit was testimonial hearsay, it was not
admissible as a business record, and its admission violated the defendant’s Confrontation Clause
rights. Reversed.
Belvin v. State, 922 So.2d 1046 (Fla. Dist. Ct. App. 2006)
At trial for driving under the influence, the court admitted the affidavit of the nontestifying
technician who administered the breath test. Under state law, the defendant had the right to
subpoena her as an adverse witness or depose her, via counsel, in a pre-trial “discovery
deposition.” He did neither.
In this often cited decision, the appellate court reversed. It held that the affidavit was testimonial
hearsay because it was prepared for use at trial and, thus, contained statements that an objective
witness would reasonably believe would be used at trial. It rejected the state’s arguments that
the “simple observations” of the technician are not testimonial and emphasized the role of the
affidavit in a DUI trial. It also declined to create an exception for all state public records. It held
that simply because the affidavit was available as a public record did not mean that the
statements contained in it were nontestimonial.
The court also held that the opportunity to cross-examine the technician during the pre-trial
discovery deposition was not adequate to protect the defendant’s right to confrontation. It held
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that the defendant’s absence from the deposition, along with the unavailability of crossexamination during the deposition rendered it inadequate.
People v. Pacer, 847 N.E.2d 1149 (N.Y. 2006)
At trial for an aggravated driving offense, the court admitted an affidavit from a nontestifying
Department of Motor Vehicles official stating that based on “information and belief” the
department’s mailing procedures had been followed with regards to sending notice to the
defendant that his license had been suspended sixteen years prior to the incident in question. An
element of the crime alleged was “knowing” or having “reason to know” that his license had
been suspended.
The appellate court reversed. It distinguished federal precedents holding that affidavits about the
absence of a record were nontestimonial. Unlike those cases, this case involved an affidavit
about the substance of an action taken, not the presence or absence of an otherwise admissible
record. It also distinguished cases involving contemporaneous recordings of immigration
movements, explaining that the affidavit here was prepared for the purposes of litigation, not for
immigration records. Reversed.
People v. White, 24 A.D.3d 801 (N.Y. App. Div. 2005); People v. Cioffi, 24. A.D.3d 793 (N.Y.
App. Div. 2005); People v. F&S Auto Parts, Inc., 24 A.D.3d 795 (N.Y. App. Div. 2005)
(consolidated appeal)
At trial for conspiracy, the court admitted the plea allocutions of fifteen coconspirators.
Although the defense failed to preserve the issue by specifically objecting on Confrontation
Clause grounds, the appellate court reached the issue in the interest of justice. Without
explanation, the appellate court held that they were testimonial. It also held that in light of the
prosecution’s characterization of the allocutions in its in limine motions as “essential,” “the most
compelling evidence of the existence of a conspiracy,” and as “the core to the case,” the court
held that their admission was not harmless. Reversed.
State v. Iverson, No 85593, 2005 WL 3073792 (Ohio Ct. App. Nov. 17, 2005) (unreported)
At trial for possession of a concealed weapon, the only evidence presented was the testimony of
a local police officer. The officer testified to what the arresting officer told him (after refreshing
his recollection using the arresting officer’s report): the weapon in question was located on the
back seat of a car, wrapped in a red skull cap, and next to the defendant. The arresting officer
was on a tour of duty in “the Middle East” at the time of trial. There was no defense objection to
the testimony.
The appellate court found “plain error” because the error was “determinative to the outcome.”
Specifically, the report written by the arresting officer constituted testimonial hearsay because
the arresting officer, in drafting the report and reporting to his fellow officer had the reasonable
expectation that the statements would be used to prosecute the defendant. The error was not
harmless because it was the only inculpatory evidence presented. Reversed.
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Willingham v. State, 622 S.E.2d 343 (Ga. 2005)
At trial for murder and robbery, the state introduced the statement and testimony of a deceased
witness who had testified at the alleged coperpetrator’s earlier trial. The statement placed the
defendant at the scene of the murder and had accompanied the coperpetrator, knowing he
intended to rob the victim. The statement and testimony were admitted pursuant to a state statute
permitting the presentation of testimony of “a witness since deceased . . . which was given under
oath on a former trial upon substantially the same issue and between substantially the same
parties.”
The appellate court reversed. It held that the trial court misapplied the “substantially same
parties” element of the statute and also held that the statements were inadmissible testimonial
hearsay. It explained that the statement was made during the course of an interrogation and that
the testimony was during a former trial. It considered both types of statements testimonial
hearsay. The state failed to meet its burden of proving harmlessness, despite the defendant’s
recanted confession, because the witness’s testimony and statements went to a “core issue” and
other evidence was not overwhelming.
Shiver v. State, 900 So.2d 615 (Fla. Dist. Ct. App. 2005)
On appeal from a DUI decision and in one of the early decisions addressing the issue, the
appellate court held that a “breath test affidavit” is testimonial hearsay because it “contained
statements one would reasonable expect to be used prosecutorially.” It noted, “In fact, the only
reason the affidavit was prepared for admission at trial.” The only reason to admit maintenance
information about the breath test instrument was to meet the statutory requirement for the
admission of the results.
Napier v. State, 820 N.E.2d 144 (Ind. Ct. App. 2005)
At trial for driving under the influence, the court admitted certification documents regarding the
inspection of the breath test machine and a printout from the machine indicating that the
defendant had a blood-alcohol content above the legal limit.
The appellate court reversed. It held that the certification documents regarding the inspection
were not testimonial hearsay because they do not pertain to guilt; they merely relate to whether
the breath test results are admissible. The court noted that having “a toxicologist in every court
on a daily basis offering testimony about his inspection” is “obviously impractical.” By contrast,
the breath test results were testimonial hearsay because the result “pertains to the issue of guilt or
innocence.”
People v. Woods, 9 A.D.3d 293 (N.Y. App. Div. 2004)
At trial for assault in the third degree, the court admitted the codefendant’s plea allocution,
admitting to robbery and identifying the defendant as the person who punched the complainant.
The appellate court reversed, reviewing “as a matter of discretion in the interest of justice,” and
held that the plea allocution was testimonial hearsay. It further held that the admission was not
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harmless, noting the prosecutor’s emphasis on it and the complainant’s confusion about which
defendant had punched her.
People v. Rogers, 8 A.D.3d 888 (N.Y. App. Div. 2004)
At trial for DUI, the court admitted a lab test result generated by a third party contractor for the
police. The report showed the defendant’s blood alcohol content. The appellate court reversed.
It held that the results were testimonial hearsay because the testing was requested by the police in
preparation for the case against the defendant.
*State v. Jasper, 245 P.3d 228 (Wash. App. Div. 2010) rev granted 170 Wash.2d 1026 (Wash.
App. Div. Feb. 1, 2011)
At trial for driving while license suspended or revoked, the court admitted an affidavit of the
nontestifying Department of Licensing (DOL) records custodian. The affidavit described the
custodian’s unsuccessful search for the defendant’s record of having a license.
The appellate court reversed. It held that the affidavit was testimonial for several reasons: it was
prepared for the defendant’s prosecution and did not exist separately from the context of the
prosecution; it is also not a record kept in the ordinary administration of the DOL’s business.
The court rejected the state’s argument that the affidavit merely established the authenticity of
the driving record attached to it. It also found that allowing confrontation of the affiant would
not have been an “empty formalism” because of contradictions between the records attached to
the affidavit with the prosecution’s theory of the case.
Offered for the Truth of the Matter Asserted
U.S. Court of Appeals Cases
Jones v. Basinger, 635 F.3d 1030 (7th Cir. 2011)
At trial for murder, two of the investigating officers testified about the lengthy statement of a
non-testifying informant accusing the defendant of the alleged crime. The informant had relayed
the confession of his brother to the police. Thus the evidence was double hearsay. The trial
court admitted the testimony to explain the “course of investigation,” i.e. why the police
investigated the defendant, not for it’s truth. The trial court, however, only offered “meager
instructions” to limit the jury’s consideration of the informant evidence from some of one of the
two officer’s testimony.
Reviewing a denial of an application for writ of habeas corpus, the Court of Appeals held that the
state courts had made an unreasonable application of clearly established law requiring a new
trial. It explained that the evidence was offered for its truth for several reasons. First, the
prosecution’s stated reason for introducing the evidence was to “show that other independent
evidence” linked the defendant to the crime. Second, the prosecution had offered reasons that
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the informant was credible, a showing that would be unnecessary if the evidence was only
offered to explain the investigation. Third, for “course of investigation” purposes, “only a small
amount of information is legitimately needed in all but the rarest cases.”
United States v. Cabrera-Rivera, 583 F.3d 26 (1st Cir. 2009)
The trial court admitted into evidence confessions and statements made by defendant’s nontestifying alleged accomplices during an FBI interrogation.
The Court of Appeals first held that the objection to the statements had been preserved because
trial counsel had made a Bruton objection that could only be interpreted as a Crawford objection
because “a literal Bruton objection would have made no sense” since no other defendants were
on trial.
As to the merits, the court held the statements were “testimonial out-of-court statements . . . used
for the truth of the matters asserted,” not to “provide context” for the discovery of admissible
evidence, as the prosecution had argued. The court noted the accomplice confessions were
described as “co-defendant” statements, suggesting that the defendant had conspired with them,
and that the government was using the statements for their truth, as demonstrated by its closing
argument. In its closing argument, the prosecution argued that it brought the evidence to “prove
this case beyond a reasonable doubt” and that the statements corroborated admissible evidence.
The court also emphasized that some of the information in the admitted evidence provided no
context to the investigation and could only have been used for its truth. Vacated and remanded.
United States v. Hearn, 500 F.3d 479 (6th Cir. 2007)
At trial for possession of a controlled substance, the court admitted two officers’ testimony that
confidential informants told them the defendant possessed and intended to sell a large quantity of
ecstasy at an upcoming rave. The prosecution proffered that it was offering the testimony to
explain why the officers stopped the defendant when they did: he was on his way to the rave.
During closing argument, the prosecution repeatedly referred to the confidential informants’
statements when addressing elements of the offense, not merely as an explanation for the
officers’ actions.
The Court of Appeals found that the manner in which the unavailable informants’ statement was
introduced and used required the defendant to have the opportunity to cross-examine the
informants. It emphasized the prosecution’s closing argument that used the officers’ testimony
to establish that the defendant was “going to take these [pills] with him [to the rave]” (first
alteration in original). It also noted that the prosecution asked “broad, open-ended questions [of
the officers] . . . instead of attempting to make sure, through narrow questioning or otherwise,
that the officers did not testify as to the details of the confidential informants’ allegations.” The
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error was not harmless because “no other evidence so directly demonstrated [the defendant’s]
possession of the drugs with intent to sell.” Reversed and remanded.
United States v. Pugh, 405 F.3d 390 (6th Cir. 2005)
At trial for bank robbery, the court admitted the statement of an absent declarant that one of the
persons pictured in the bank security footage was the defendant. The Court of Appeals ruled that
the identification was testimonial, emphasizing that it took place in the context of a police
interrogation and that “a reasonable person would assume that a statement positively identifying
a suspect” would be used in either investigation or prosecution of an offense. The court held that
the statement was offered for the truth of the matter asserted, not to explain why the officer
attempted to transport the declarant from jail to the police station, because it could not “conceive
of any other reason that the positive identification of the defendants would be introduced,” other
than to prove the defendants were those pictured. The error was not harmless because the only
other evidence placing the defendants at the scene of the crime was “contested.” Reversed in
part, affirmed in part, vacated in part, and remanded.
United States v. Cromer, 389 F.3d 662 (6th Cir. 2004)
At trial, the District Court admitted a police officer’s statement that a confidential informant had
told him that the defendant was one of the people associated with illegal activities at the
residence in question. It also admitted the officer’s testimony about the confidential informant’s
physical description of a participant in drug activity. The defendant met the description.
The Court of Appeals found plain error. It emphasized that the statement “went to the very heart
of the prosecutor’s case,” whether the defendant took part in the illegal activities known to take
place at the residence in question. It described the state’s effort to characterize the identification
as putting the investigation in context and not being used for the truth as a “sham” because the
contested question in the case was whether the defendant was involved in the illegal activities at
the residence and because there was no dispute as to the subjects of the government’s
investigation.
Regarding the description, the court further held that the trial court “may well have been
correct” to admit it under evidence law based on the defendant’s “opening the door” to
presentation of this information by raising it on multiple occasions during cross-examination of
the government’s witnesses. The court held “the Confrontation Clause confers a powerful and
fundamental right that is no longer subsumed by the evidentiary rules governing the admission of
hearsay statements . . . . A foolish strategic decision [such as cross-examining the witnesses
about the description] does not rise to the level of [forfeiture by wrongdoing] and so will not
cause the defendant to forfeit his rights under the Confrontation Clause.” Reversed and
remanded.
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State Cases
State v. Stathum, No. 06-08-1930, 2011 WL 1345019 (N.J. Super. Ct. App. Div. Apr. 11, 2011)
At trial for drug distribution, the investigating officer testified that he had narrowed his
investigation based on information received from a confidential informant. He also testified
what a confidential informant does and, critically, that the defendant had made previous
purchases from the informant. The trial court admitted the statements to explain the course of
the officer’s investigation.
The appellate court reversed. It held that the details the officer supplied, including that the
defendant had made purchases unrelated to the present charges, were unnecessary to explain the
course of the officer’s investigation. Rather, the information was offered for the truth of the
matter asserted.
Gardner v. United States, 999 A.2d 55 (D.C. 2010)
At trial, the court admitted a DNA report and an expert’s opinion about DNA testing. The DNA
at issue was found on the victim’s clothing, but the defendant claimed that the clothing had been
contaminated during its collection. The analyst conducting the testing did not testify.
The appellate court reversed. It held that the report and expert opinion violated the
Confrontation Clause because the reports were the basis for the expert’s conclusions and,
therefore admitted for the truth of the matter asserted. The court declined to address whether a
report could be admitted to corroborate an expert’s opinion because this case did not present
such a scenario.
Langham v. State, 305 S.W.3d 568 (Tex. Crim. App. 2010)
At trial, the investigating detective testified, over defense objection, about statements a
nontestifying confidential informant made to him. The statements relayed information about
drug use at the house where the defendant was arrested.
The appellate court held that the statements were offered for the truth of the matter asserted, not
as “background” information about how the detective obtained a warrant. It emphasized that the
“primary” purpose of gathering the information was to obtain a conviction, even if the “first in
time” (an alternate dictionary definition of primary) purpose was to obtain a warrant. Thus, the
statements were offered for their truth and in violation of the Confrontation Clause. The court
remanded for a harmlessness determination because the lower court applied a sufficiency of the
evidence standard instead of a harmless beyond a reasonable doubt standard. Reversed and
remanded with instructions.
Commonwealth v. Stone, 291 S.W.3d 696 (Ky. 2009)
Admission of a codefendant’s statement that at the time of the alleged stabbing the victim was
“backing up” and “backing away” was testimonial because it is a statement that was taken by
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police officers in the course of their interrogation. The court analyzed the statement under
Crawford, not Bruton, because the statement was offered against the defendant, rather than
offered against the codefendant with an unintended impact on the defendant. The court rejected
the argument that the defendant opened the door to the testimony by introducing his own
statement that the victim was the aggressor. The court explained that opening the door allows
the opposing party to respond to the subject matter, but the opposing party is still subject to the
rules of evidence and the Confrontation Clause.
State v. Johnson, 771 N.W.2d 360 (S.D. 2009)
A nontestifying confidential informant’s statement that the informant could buy marijuana from
the defendant was testimonial hearsay offered for the truth of the matter asserted. The state
argued that it was offered to explain why the officer approached the defendant in the first place.
The appellate court described the argument establishing a “fine line,” but in light of the
prosecution’s closing argument, it rejected the argument. In closing, the prosecution argued,
“[H]ow do we know [the defendant] sold the drugs? [The informant] told the Detective, I’m
going to buy marijuana from [him].”
*Hunt v. State, 218 P.3d 516 (Okla. Crim. App. 2009)
At trial for malice murder, the court admitted a 911 tape of the victim made during a call a few
hours prior to the murder. The state claimed that the statements were admitted to show the
victim’s state of mind, and the trial court gave a related instruction.
The appellate court held that some portions of the tape were offered for the truth of the matter
asserted. Specifically, the court held that the victim’s claims that the defendant had attacked her
several hours prior to the incident were testimonial (the court did not explicitly state it was for
the truth of the matter asserted, but it contrasted these statements with the “state of mind”
statements). Because the defendant claimed self-defense and because the inadmissible
statements had gone unchallenged, the error was not harmless beyond a reasonable doubt.
Reversed.
People v. Ricks, No. 283053, 2009 WL 1607537 (Mich. Ct. App. June 9, 2009) (unreported)
The investigating officer’s testimony that he identified the defendant based on the nontestifying
informant’s giving him the defendant’s name and workplace was offered for the truth of the
matter asserted, not to explain the investigating officer’s actions. Because the other two
witnesses identifying the defendant were being held at gunpoint when they saw the perpetrator,
“their identification testimony was somewhat suspect,” and the erroneously admitted
identification error was not harmless beyond a reasonable doubt. Reversed.
Sanabria v. State, 974 A.2d 107 (Del. 2009)
At trial for burglary, a nontestifying 911 dispatcher’s statements about what the alarm company
had told her was offered for the truth of the matter asserted, not to explain the investigating
officer’s actions. The dispatcher stated that the alarm company had informed her the motion
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detector in the foyer of a house had gone off. “Absent a limiting instruction, the statement . . .
could have been considered by the jury for the truth of the matter asserted.” The error was not
harmless because it was the only evidence that the defendant had entered the house. Reversed.
State v. Maltepes, No. 1 CA-CR 07-0177, 2008 WL 3878510 (Ariz. Ct. App. Aug. 19, 2008)
(unreported)
Admission of the investigating officer’s statements about his presence at the scene of the crime,
including statements about a prior incident that was his reason for being there when the present
incident occurred, were offered for the truth of the matter asserted prior investigation “[b]ecause
this testimony went far beyond what was necessary to avoid misleading the jury as to why the
police were investigating [the defendant] and included testimonial hearsay used by the
prosecutor during closing argument” for the truth of the matter asserted. Explaining the reason
for police activity or presence should be done by stating it is based “upon information received”
is preferable. Reversed.
People v. Feazell, 898 N.E.2d 1077 (Ill. App. Ct. 2007)
At trial for murder and armed robbery, the court, over the defendant’s objection, admitted an
investigation officer’s testimony about his interrogation of the defendant. His testimony included
descriptions of the statements by the coperpetrator which he confronted the defendant with.
The appellate court ruled that, contrary to the state’s argument, the statements were offered for
their truth, and not to describe the “progression of the investigation” or to show the effect on the
listener. It explained that while explaining the steps of the investigation is acceptable, putting
the substance of the out-of-court declarant’s statement before the jury goes beyond the bounds
permitted by the police investigation exception. It also explained that the state’s failure to show
how the defendant’s cooperation, behavior, or actions changed after being confronted with the
statements belied its contention that the statements were offered to show the effect on the
listener. Reversed.
People v. McEaddy, 41 A.Dd 877 (N.Y. App. Div. 2007)
At trial, the court admitted statements of two detectives to the effect that after a surveillance
video of a robbery was aired on local television, several callers contacted the police identifying
the defendant as the perpetrator.
The appellate court held that the statements were offered for their truth, and not to explain why
the police conducted their investigation as they did, because the latter issue was not contested at
trial. It held the error was not harmless beyond a reasonable doubt because the identity of the
robber was the sole issue at trial. Even though the defendant had made an incriminating
statement, the court noted the statement was of questionable valuable because the detectives
offered contradictory testimony about the circumstances of the statement. Reversed.
State v. Freeman, No. 04-09-1268, 2007 WL 560297 (N.J. Super. Ct. App. Div. Feb. 27, 2007)
(unreported)
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At trial for receiving stolen property, a car, the court admitted over the defense’s objection the
complainant witness’s testimony that he reported the car stolen after talking with his wife and
stepdaughter. Neither the wife nor stepdaughter testified. The complainant’s stepdaughter
owned the car. In his rebuttal argument, the prosecution highlighted the complainant’s testimony
about his conversation with his daughter, arguing that the complainant knew that the defendant
lacked permission to use the car based on the complainant’s conversation with his wife and
stepdaughter.
The appellate court reversed, holding that the “inescapable inference” of the testimony was that
the defendant did not have his aunt or cousin’s permission to drive the car. It noted that the
reason the state suggested for offering the testimony, to demonstrate the prudence of the
complainant prior to reporting the car stolen, raised an impermissible inference: the defendant
did not have permission to use the car. Reversed.
People v. Irizzary, Nos. 03-02-011-I, 03-03-0275-I, 03-09-0826-I, 2007 WL 1574308 (N.J.
Super. Ct. App. Div. June 1, 2007) (unreported)
At trial for possession of a controlled substance and possession of a controlled substance with
intent to distribute, the court admitted the investigating detective’s statement that he suspected
the object discarded by the defendant was a controlled substance based on “information
received.”
The appellate court held that it was not submitted to permissibly explain the reason for an
officer’s action because it was, in fact, introduced to explain why the officer suspected the
defendant possessed drugs: he had outside the record knowledge indicating as much. The court
considered the error cumulatively with other errors in the case and reversed.
State v. Johnson, 138 Wash. App. 1041 (Wash. Ct. App. 2007)
At trial for promoting prostitution, the court admitted statements of a nontestifying sex worker
who had recently been arrested. She provided a description of the defendant and his car. The
state argued that the statements were offered to explain why the police followed and arrested the
defendant, not for their truth.
The appellate court reversed, holding that the statements were offered for their truth because the
statements were “far more detailed than would be required to explain why the deputies arrested”
the defendant. The court suggested that the officer could have explained that he simply
“received information consistent” with the defendant, without providing the prostitute’s more
detailed description. It also noted the prosecutor’s use of the statement in opening and closing
argument was for the truth of the statement, not to explain police conduct.
State v. Hoover, 220 S.W. 3d 395 (Mo. Ct. App. 2007)
At trial, over defense counsel’s objection, during the prosecution’s opening statement he referred
to statements a police officer made to the defendant during his interrogation. The police officer
had told the defendant that his son was confessing and implicating him. His son did not testify at
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trial, but the police officer repeated the statements in his testimony. The prosecution was careful
to explain in his opening statement that he was not alleging his son actually confessed, but that
the he was simply recounting what the officer said to give context to the defendant’s reaction.
The appellate court held that the statements were inadmissible hearsay (the court relied both on
evidence code decisions and constitutional decisions in its holding) for two reasons. First, while
it is permissible to admit some hearsay evidence to explain police behavior, it is not acceptable
to do the same to explain a defendant’s reaction to the statements. The court next noted the
importance of not allowing the prosecution to offer prefatory reasons for introducing hearsay
evidence, such as providing background information, when its true intent is to offer hearsay
statements for their truth, as it had done here.
State v. Carlson, 132 Wash. App. 1058 (Wash. Ct. App. May 10, 2006)
At trial for the murder of the defendant’s daughter-in-law, the court admitted the statements of
the defendant’s nontestifying son, the codefendant. The state argued that the statements were
admitted to impeach the defendant by showing that they had a carefully constructed alibi and, in
the alternative, were not testimonial because they were made in the furtherance of a conspiracy.
The appellate court rejected both arguments and reversed. It held that the statements were
offered for the truth because “where one witness is used to impeach another, the veracity of the
conflicting stories is necessarily at issue and therefore constitutes hearsay.” It also held that the
statements were not in the furtherance of a conspiracy because inculpatory statements, like
admission of a motive to kill the victim during an extended police interview, could not be in the
furtherance of a conspiracy. It rejected the state’s argument that documentation of the daughterin-law’s poor parenting and the codefendant’s purchase of a gun were sufficient proof of the
conspiracy.
People v. Goldstein, 810 N.S.2d 100 (N.Y. 2005)
At trial for murder, the court admitted the testimony of a forensic psychiatrist recounting the
statements of nontestifying witnesses. The witnesses recounted prior bad acts of the defendant.
The prosecution argued, based on the testimony of the psychiatrist, that the statements were
regularly relied on by a minority, but growing, number of psychiatrists whose purpose was to
“get to the truth,” which involves interviews of people with firsthand knowledge. The statements
made to the psychiatrist corroborated the prosecution’s theory that the crime was the product of
the defendant’s anti-social personality disorder and undermined the defense’s insanity theory
based on the defendant’s schizophrenia.
The New York Court of Appeals, New York’s court of last resort, reversed. It held that the
statements were testimonial because they were made to an agent of the prosecution in the course
of her investigation. It noted that it would be “strange” if the witnesses did not know they were
answering questions posed by an agent of the prosecution. It also held that the statements were
hearsay, offered for the truth of the matter asserted. It rejected the state’s argument that the
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statements were merely offered to help the jury evaluate the psychiatrist’s opinion. The court
explained, “We do not see how the jury could use the statements of the interviewees to evaluate
[the psychiatrist’s] opinion without accepting as a premise either that the statements were true or
that they were false.” It held that the difference between a statement offered for its truth and to
offer support for the expert’s opinion “is not meaningful in this case.”
People v. Ryan, 17 A.D.3d 1 (N.Y. App. Div. 2005)
At trial for assault, burglary, and unauthorized use of a vehicle, the defense elicited testimony
from the investigating officer about whether the nontestifying alleged accomplices made any
mention of a weapon, an attempt to impugn the quality of the police investigation, which had
proceeded on a theory that there was a gun involved. The trial court then allowed the
introduction of the officer’s account of the accomplices’ full confessions.
The appellate court reversed. It held that, contrary to the state’s argument, the statements were
offered for their truth, not to provide a full account of the issue only partially explored on crossexamination. The court emphasized that the state’s questions made no attempt to clarify possible
misconceptions about the statements and that the prosecution used the statements
substantively—to argue for guilt—in its closing argument.
Availability for Cross-Examination
Good Faith Efforts to Obtain Presence of Witness
U.S. Court of Appeals Cases
United States v. Tirado-Tirado, 563 F.3d 117 (5th Cir. 2009)
At a trial for inducing an alien to illegally immigrate, the court admitted the deposition testimony
of the illegally immigrating alien. The Court of Appeals ruled that because the government
failed to make a “good faith” effort to make the alien available for cross-examination at trial, it
had failed to demonstrate that the witness was not “unavailable” for purposes of Crawford and
ruled the admission improper. The government failed to take “any concrete steps” to assure the
witness’s availability. Vacated and remanded.
Earhart v. Konteh, 589 F.3d 337 (6th Cir. 2009)
At a trial for rape of a child under thirteen and for gross sexual imposition on a child under the
age of thirteen, the court admitted the videotaped deposition of the alleged victim. The victim
did not testify because she was on vacation.
The Court of Appeals held that being on vacation, absent the government demonstrating that it
had made a “good-faith effort to obtain” her presence, including the use of compulsory process,
did not make the victim “unavailable” for purposes of the Confrontation Clause. The erroneous
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admission was not harmless beyond a reasonable doubt because the victim provided
“undoubtedly the most convincing evidence,” and the other witnesses provide conflicting
testimony. Affirmed in part, reversed and remanded in part.
Fischetti v. Johnson, 384 F.3d 140 (3d Cir. 2004)
At a retrial for burglary, the trial court admitted testimony of burglary victims who testified at
the original trial. Some of the witnesses testified at the retrial, but some did not. The defendant
was representing himself.
The Court of Appeals held that it was error not to hold a preliminary hearing to first determine
whether the non-testifying witness was unavailable and that it was constitutionally deficient
performance of appellate counsel for failing to seek review of the same. It held that the trial
court’s erroneous—but not “clearly erroneous” under AEDPA—denial of replacement counsel
constituted cause for overcoming a state court default. Reversed and remanded for determining
whether the non-testifying witness was unavailable.
State Court Cases
Meraz v. State, No. 52005, 2011 WL 379037 (Nev. Feb. 3, 2011) (unreported)
At trial for murder, the court admitted a transcript of the surviving victim’s testimony at the
defendant’s prior trial. Before trial, the prosecution had noted its belief that the surviving victim
was in Mexico.
The Nevada Supreme Court reversed. It held that the trial court’s failure to find the witness
unavailable required reversal. Moreover, the prosecution’s “mere belief” that the witness is in
Mexico is inadequate to support a finding of a good faith effort to obtain the witness’s presence.
People v. Painia, No. B215733, 2010 WL 2473268 (Cal. Ct. App. June 21, 2010)
At trial, the court admitted the preliminary hearing testimony of a nontestifying witness. The
prosecutor offered evidence of an instruction for a detective to be sent to the witness’s home and
an attempt to call her on the phone. A bench warrant had also been issued for the witness, but
the prosecution offered no evidence that service had been attempted.
The appellate court ruled that the trial court erred when it held that the witness was unavailable
without first having a hearing to determine whether the prosecutor used due diligence to locate
and present the witness. Reversed.
State v. Smith, No. 22926, 2010 WL 703377 (Ohio Ct. App. Feb. 26, 2010) (unreported)
Prior to trial, the complainant witness was served with a subpoena via mail. The prosecution
visited the witness’s address, and the witness’s sister told the prosecution that the witness was
home, but that she would not answer the door. The week before trial the prosecution again
visited the witness’s address, and she said that she would not come to court for fear of too much
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stress. The trial court found that the witness was unavailable and admitted a prior statement she
made.
The appellate court held that the state failed to “demonstrate that it had exerted reasonable
efforts” to ensure the witness’s appearance. Reversed.
State v. Sharp, No. W2008-01656-CCA-R3-CD, 2010 WL 623589 (Tenn. Ct. App. Feb. 22,
2010) (unreported)
At a retrial, the state introduced testimony of a witness from a prior trial. The state, over the
course of six to eight months, had failed to obtain the witness’s presence. The trial judge ruled
that the witness was unavailable because the state had tried to telephone her and because she had
moved out of the state.
The appellate court ruled that the trial court abused its discretion in admitting the testimony
because the state did not present “any independent evidence” of the witness’s unavailability. It
noted that the state “should have realized early on” that mere telephone calls would not suffice
for the witness in question. Reversed.
People v. Garrett, No. 279546, 2009 WL 2605406 (Mich. Ct. App. Aug. 25, 2009) (unreported)
At trial, the court admitted the preliminary hearing testimony of the defendant’s former wife.
Prior to presenting the evidence, the prosecution requested to put on evidence of its due diligence
in locating the witness, but the trial court denied the request, mistakenly believing the defendant
was married to the witness such that the spousal privilege applied.
The appellate court held it was plain error to not permit the state to prove that the witness was
unavailable and that because the witness was not shown to be unavailable, admission of her
testimony violated the Confrontation Clause. Reversed.
Womack v. State, No. 05-07-00142-CR, 2008 WL 3917807 (Tex. App. Aug. 27, 2008)
(unreported)
Prior to trial a witness was called in the preliminary hearing who said she did not wish to testify.
Neither the prosecution nor the defense requested the court to order her to testify. Because the
prosecution bears the burden of proving unavailability, her testimonial statements were not
admissible at trial. The statements were testimonial because, although made in the presence of
the alleged assailant, they were made after any emergency had been resolved. Reversed.
Hernandez v. State, 188 P.3d 1126 (Nev. 2008)
Prior to trial, the prosecution obtained an oral promise from a witness to attend trial.
Immediately prior to trial, however, the prosecution spoke with a minor child who was a member
of the witness’s family who informed the prosecutor that the witness had an unspecified
emergency wand was unable to attend trial. Nonetheless, the trial court admitted the
nontestifying witness’s statements to law enforcement.
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The appellate court reversed. It held that the prosecution failed to “communicate with an adult”
in the witness’s household, failed to establish that an emergency actually existed, and failed to
inform the trial court of how long the emergency would prevent the witness from attending. The
error was not harmless beyond a reasonable doubt. Although other evidence established that the
defendant was at the scene of the crime (an eyewitness identifying him as the shooter and his
fingerprints on a pay phone), the absent witness’s testimony was “not entirely duplicative”
because no other witness spoke to or personally interacted with the defendant on the day of the
shooting, thus making the absent witness’s testimony more reliable in the eyes of the jury.
People v. Smith, No. E041765, 2008 WL 2010374 (Cal. Ct. App. May 12, 2008)
At trial, the court admitted the statements of a witness the prosecution had attempted to
subpoena, but had failed to locate.
The appellate court reversed. It held that the prosecution failed to exercise due diligence to
locate a missing witness where the witness had not been “particularly cooperative” in the past
and the prosecution did not make an effort to locate the witness to serve a subpoena on her until
three days prior to trial. Even then, the only effort made was to check the “Cal photo, the DMV,
and local arrest records.” This effort was inadequate because there was no evidence to show that
the witness owned a car, and even if she did, it was unlikely that she would have already notified
the relevant authorities of her change in address. The court noted that the prosecution should
have at least attempted to contact the neighbor and known associates of the witness. Reversed.
Callaham v. United States, 937 A.2d 141 (D.C. 2007)
At trial for a drug offense, the court admitted the DEA chemist’s report identifying a substance
as cocaine. The chemist did not testify.
The appellate court, reviewing for plain error, reversed. It held the report was testimonial
hearsay because the same court had previously so ruled. It also held that the defendant’s right to
subpoena the witness at trial failed to satisfy the requirement that the defendant be afforded an
opportunity to cross-examine the witness because Crawford’s “unqualified insistence on the
declarant’s unavailability as a precondition to admitting testimonial hearsay forecloses the
argument.”
People v. Roberts, No. E040045, 2007 WL 1586322 (Cal. Ct. App. June 4, 2007) (unreported)
At trial, the court found the complainant unavailable. The complainant had testified at the
preliminary hearing, and the court admitted the testimony, finding the witness unavailable
because she had moved to Mexico.
The appellate court found that the prosecution failed to meet its burden to show it exercised good
faith or due diligence in attempting to locate the witness. It rejected the trial court’s factual
finding that the witness had failed to appear because she did, in fact, appear in response to a
subpoena. It went on to hold that merely telephoning a witness and reaching her husband, who
says she is unavailable, is insufficient for “good faith” or “due diligence.” It noted that although
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the witness was in Mexico, the United States and Mexico have agreements about procuring the
attendance of witnesses in criminal matters. The prosecution’s failure to attempt to take
advantage those options rendered its efforts insufficient. Reversed.
State v. Workman, 869 N.E.2d 713 (Ohio Ct. App. 2007)
At the preliminary hearing, the complainant testified about the alleged incident. At trial, the state
did not present the complainant and, instead, offered a transcript from the preliminary hearing.
Over a defense objection, the trial court admitted the testimony because it found the complainant
unavailable. The prosecution stated it had issued a subpoena for the complainant to be present
and, during an interview, requested she attend the hearing.
The appellate court held that the prosecution had failed to meet its burden to establish reasonable
efforts in good faith to obtain her presence at trial. The court noted that the prosecution had
merely subpoenaed her, and only a few days before her testimony. It failed to undertake other
reasonable measures such as making inquiries of the complainant’s family and employer,
sending out a nationwide police bulletin, and making inquiries at area jails and morgues. The
court specifically held that “the issuance of a subpoena alone does not constitute a sufficient
effort when other reasonable methods are also available.” Because the state did not demonstrate
the complainant was unavailable, her testimony should not have been admitted.
People v. Colton, No. C047536, 2005 WL 1556917 (Cal. Ct. App. July 5, 2005) (unreported)
At trial for voluntary manslaughter and robbery, the court admitted the preliminary hearing
testimony of a witness who did not appear to testify at trial. The testimony provided the only
evidence that the defendant was present at the shooting perpetrated by the principal. Eyewitness
victims testified that the defendant had been present at the house where the crime occurred
earlier in the day and that she knew one of the victims had money in his pocket, but they did not
testify that she was present during the robbery and homicide. The same victims testified that the
principal shot the other victims but did not demand any money.
The appellate court reversed. It held that the prosecution had failed to meet its burden to show
that the witness was unavailable, “Given the critical importance of [the witness’s] testimony and
her questionable credibility, the burden on the prosecution to show that she was unavailable was
great. It is against his backdrop that we must evaluate the prosecution’s efforts.” It held that the
prosecution’s efforts did not amount to the required “due diligence.” The prosecution obtained
three continuances and a bench warrant and made at least five trips to the witness’s house. It did
not, however, talk with other people in the neighborhood about where the witness was. The
defense investigator was able to locate the witness within forty-five minutes of arriving at her
house by talking with neighbors, who informed him the witness was staying nearby. Because the
prosecution failed to show the witness was unavailable, her testimony should not have been
admitted. Reversed.
State v. Harris, 129 Wash. App. 1045 (Wash. Ct. App. Oct. 10, 2005)
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At retrial for first degree assault with a firearm, the court admitted the statements of the
complainant, which were taken during a “structured, two to three hour interview” with the
police. While the defendant’s appeal was pending the Supreme Court decided Crawford and
Davis.
The appellate court reversed. It explained that Davis held that statements must be analyzed on a
case-by-case basis and that an excited utterance was not, per se, nontestimonial. It held that
while some of the statements in the lengthy interview may have been made for the purpose of
eliciting help, “many” were not and that “an objective purpose would understand [the statements]
would be used for the purpose of criminal prosecution.” Although the defendant had crossexamined her in the first trial, there was no showing of unavailability to testify in the second.
People v. Candelario, No. B170934, 2005 WL 488561 (Cal. Ct. App. Mar. 3, 2005) (unreported)
At trial for assault with a firearm, criminal threats, possession of a firearm, and removal of the
identification of a firearm, the court admitted the complainant’s preliminary hearing testimony.
The prosecution claimed the complainant was unavailable because he was in “Korea,” but no
evidence was offered to prove the complainant’s location.
The appellate court reversed, holding that the prosecution failed to exercise due diligence in
obtaining the complainant’s attendance. The prosecution had introduced the testimony of an
investigator who “checked two apparently reversed versions of [the complainant’s] name in one
database, made a brief visit to his apartment and, after the trial court expressed doubts,
telephoned and spoke to a person of unknown function at [the complainant’s] former job.”
Because the prosecution did not show due diligence, the complainant’s testimony should not
have been admitted.
People v. Rodriguez, No. B168304, 2004 WL 2397261 (Cal. Ct. App. Oct. 26, 2004)
At the preliminary hearing, the parties each acknowledged that one of the alleged coperpetrators
was going to be deported. He had twice given statements to the police and had implicated the
defendant in murdering the victim, but he gave conflicting accounts of the homicide. By trial,
the witness had been deported, and the trial court determined that, based on the prosecution’s
efforts to locate him, he was unavailable. The prosecution, after the preliminary hearing had
contacted addresses he was believed to have lived prior to deportation, called directory assistance
in a town in Mexico where he erroneously believed to be from, and contacted the Mexican
consulate. Having found the prosecution’s efforts reasonable, the trial court ruled the witness
unavailable and admitted the preliminary hearing testimony and the statements to the police.
The appellate court reversed. It held that the prosecution’s failure to “use reasonable means to
prevent a present witness from becoming absent was “per se unreasonable.” The court outlined
measures the prosecution could have filed to take prior to the witness’s departure, including
requesting a “material witness” immigration hold on the witness.
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Forfeiture by Wrongdoing
State Court Cases
State v. Cabbell, 24 A.3d 758 (N.J. 2011)
The forfeiture by wrongdoing exception to the right to confront witnesses only applies to
unavailable witnesses. Where there was no finding of unavailability, and ample evidence that
the witness was available, the exception to did not apply.
Zanders v. United States, 999 A.2d 149 (D.C. 2010)
At trial for murder, the court admitted a statement taken from the victim. Six weeks prior to his
death, the defendant was in an altercation with the victim, and the victim was taken to the
hospital with stab wounds. While at the hospital, the victim was interrogated by a police officer,
and made a statement incriminating the defendant. Six weeks later the defendant allegedly killed
the victim.
The appellate court held that the statements were testimonial and not subject to the forfeiture by
wrongdoing doctrine because “the government presented no evidence that appellant’s purpose in
murdering [the victim] was to prevent him from testifying about the stabbing.” The error was
not harmless because there was a dispute about who started the fight, and the statement placed
the blame on the defendant. The assault with a deadly weapon charge was reversed.
State v. Cox, 779 N.W.2d 844 (Minn. 2010)
Prior to trial and at an evidentiary hearing, a witness expressed some hesitation about testifying
at trial. She said that she did not want to testify and that she thought that the defendant’s mother
and brother had threatened her. She said that she did not want to testify, but that she did not
know what she would do if the judge ordered her to testify. The trial court found her unavailable
admitted her grand jury testimony in lieu of having her testify.
The appellate court reversed, holding that the witness was not “unavailable” for purposes of
forfeiture by wrongdoing. Because the witness responded to the pre-trial subpoena and because
the state failed to call her at trial, the state failed to establish by a preponderance of evidence that
the witness was unavailable.
People v. Younger, No. A110031, 2010 WL 338962 (Cal. Ct. App. Jan. 29, 2010) (unreported)
At trial for murder, several testimonial statements of the victim were presented.
The appellate court reversed. Because the state “presented no evidence that appellant murdered
[the victim] with the intention of preventing her from testifying at ongoing criminal
proceedings,” the appellate court ruled that the defendant’s claim was “not barred” by the
forfeiture by wrongdoing doctrine. Two of the statements were made to a doctor. Both were
testimonial because the doctor was conducting an interview to gather evidence, not to “help him
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determine the correct mode of treatment for her.” The court noted that the doctor “neither
administered or [sic] prescribed any medical treatment.” Reversed.
People v. Faz, No. E043111, 2008 WL 4294946 (Cal. Ct. App. Sept. 22, 2008) (unreported)
The prosecution’s unsworn statements were insufficient to meet its “burden to present . . .
competent evidence showing reasonable diligence . . . to secure the [witness’s] attendance at
trial.” The prosecution also failed to demonstrate that the defendant forfeited his right to
confront the witness under the forfeiture by wrongdoing doctrine because the prosecution offered
no competent evidence to support that conclusion, only offering its own statements about the
reasons for the victim’s absence. “[T]he unsworn statement of a prosecutor is not evidence.”
Remanded for a hearing on forfeiture and unavailability.
People v. Moreno, 160 P.3d 242 (Colo. 2007)
At trial, the court admitted a videotaped interview of the complainant eight-year-old, who
accused the defendant of molesting her. The police conducted the interview twice, the second
time in a facility with video cameras. While the defendant’s appeal was pending, Crawford was
decided. On appeal, the state argued that because the defendant’s traumatization of the victim
rendered her unavailable to testify (for fear of retraumatization), he forfeited his right to crossexamine her.
The Colorado Supreme court disagreed and reversed the trial court. It held that, while there may
be a “murder exception,” generally “apart from any design or attempt by the defendant to subvert
[the truth-seeking] process,” the defendant will not have forfeited his right to confront witnesses
against him. It emphasized the Court’s language in Davis suggesting that the Federal Rules of
Evidence (FRE) codified Reynolds v. United States, which was the “Court’s only significant on
the doctrine of forfeiture by wrongdoing.” Because FRE 804(b)(6) requires that the defendant to
have procured the witness’s unavailability for the purpose of keeping them from testifying. The
Colorado court also relied on language in the Davis Court’s addressing the forfeiture rule’s
purpose: to prevent defendants from undermining the judicial process by “procuring or coercing
silence from witnesses and victims.” The Colorado court distinguished the cases from
jurisdictions that did not require a showing of intent to prevent the witness from testifying by
noting that those cases all involved a murder. It did not rule on whether a murder victim’s
statements would be admissible under the doctrine. Note that the Supreme Court had not yet
decided California v. Giles when this case was decided. Judgment of the Court of Appeals
affirmed.
State v. Byrd, 923 A.2d 242 (N.J. Super. Ct. App. Div. 2007)
Prior to trial, the court conducted an ex parte interview of a witness in camera and determined
that the witness did not wish to testify because he had been threatened by the defendants.
Without more, the appellate court held that the “ex parte procedure employed here was at
variance with the full evidentiary hearings conducted outside the presence of the jury in
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forfeiture-by-wrongdoing cases.” It then cited several federal cases involving forfeiture-bywrongdoing claims but provided no further explanation. The court did not discuss harmlessness.
It did, however, explicitly decline to adopt a state law based forfeiture by wrongdoing doctrine
and held that the statement should not have been admitted under current state law. Reversed.
State v. Wright, 726 N.W.2d 464 (Minn. 2007)
At trial, the court admitted the testimony of the investigating officer recounting the nontestifying
complainant witnesses’ statements to the officers at the scene of the alleged incident. The
statements were taken after the defendant had been taken into custody.
The appellate court held that the statements “squarely” fell within the areas proscribed by the
Confrontation Clause. Turning to harmlessness, the court noted that the statements were “highly
persuasive [and] . . . they featured prominently in closing argument.
The appellate court granted the state’s request for a remand on the issue of forfeiture by
wrongdoing. It held that because the trial court had merely held a hearing on unavailability, the
record lacked any findings on forfeiture, and the state was entitled to present evidence to
establish, by a preponderance of the evidence, that the defendant engaged in wrongful conduct
with the intent to make the complainants unavailable and that wrongful conduct actually caused
their unavailability.
State v. Waddell, 134 P.3d 36 (Kan. Ct. App. 2006)
At trial for rape, aggravated indecent liberties, aggravated criminal sodomy, aggravated indecent
solicitation of a child, and criminal threat, the court admitted the video of statements the
complainant child made to a “special investigator.” The special investigator was employed by
Social and Rehabilitation Services. The interview took place at a Child Advocacy Center and
was designed to elicit information that would be forwarded to law enforcement. At trial,
evidence showed that the defendant had threatened to kill the complainant “if she told.”
The appellate court reversed. It held that the statements were clearly testimonial in light of the
purpose of the interview. It adopted a “reasonable person” standard to determine whether the
complainant had a reasonable expectation that the statements would be used to prosecute the
defendant. It rejected the state’s proffered “reasonable child” standard, reasoning that “to allow
the prosecution to utilize statements by a young child made in an environment and under
circumstances in which the investigators clearly contemplated use of the statements at a later trial
would create an exception that we are not prepared to recognize.”
The court also held that the state had failed to make a showing of forfeiture by wrongdoing. It
held that for cases other than murder, the “causative factor has consistently been some act
independent of the crime charged. It suggested that the wrongdoing needed to occur after the
crime charged, something the state had not shown here. It also emphasized that at the
“availability hearing” the complainant had testified that she was “not afraid that anyone in the
room” would do anything to her.
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State v. Romero, 133 P.3d 842 (N.M. Ct. App. 2006)
At trial for domestic violence related crimes, the court admitted numerous statements by the
victim, who was later murdered by the defendant, a crime for which he was tried separately. The
murder took place during a fight between the victim and the defendant. The evidence at the
murder trial indicated that the defendant and victim fought, made up, fought again, and went to
sleep. When the defendant woke up, he found the victim dead.
On appeal from the domestic violence crimes, the state maintained that the victim’s statements
should be admitted based on the forfeiture by wrongdoing doctrine. The appellate court held that
despite its disagreement with the rule, the doctrine required the state to prove, even in cases
where the defendant had murdered the declarant, that the defendant committed the wrong with
the intent to keep the declarant from testifying. It also held that, while it is permissible in some
instances to infer such an intent, the facts here did not warrant such an inference. Because
nothing presented at the defendant’s murder trial indicated such an intent, the court declined to
find one. Instead, it remanded for the trial court to determine whether the defendant had such an
intent. If he did, the court ruled that his convictions should not be reversed. Remanded.
People v. Hampton, 842 N.E.2d 1124 (Ill. App. Ct. 2005) vacated in part on other grounds by
867 N.E.2d 957 (Ill. 2007)
At trial, the court, over a defense objection, admitted the handwritten statement of the alleged
coperpetrator, who was tried separately. The state had called the coperpetrator to testify, but he
refused, claiming a Fifth Amendment privilege. The trial court held him in contempt when he
continued to refuse to testify despite a court order to do so.
On appeal, the state conceded that the handwritten statement was testimonial hearsay, but it
contended that the defendant had forfeited his right to confront the witness by his wrongdoing.
Specifically, the state alleged that the defendant authored a letter to the coperpetrator requesting
him not to testify. The appellate court held that “any conduct by an accused intended to render a
witness against him unavailable to testify is wrongful and may result in forfeiture of the
accused’s privilege to be confronted by that witness.” It held that because the trial court had not
addressed the contested issue of the authorship of the letter, it would remand for it to do so.
State v. Alvarez-Lopez, 98 P.3d 699 (N.M. 2004)
After being indicted for robbery, the defendant absconded and was a fugitive. Seven years later,
facing charges in federal court, the defendant informed the court of the pending charges against
him in state court. In the intervening seven years, the principal witness against him, the alleged
coperpetrator, had served his sentence and was deported to Mexico. At trial, the court admitted
the coperpetrator’s statement made to the police after being read his Miranda rights.
The appellate court reversed. It rejected the state’s argument that the defendant forfeited his
Confrontation Clause rights by absconding for seven years. Adopting the Federal Rule of
Evidence 804(b)(6) to determine whether a defendant has forfeited his Confrontation Clause
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rights, the court reviewed whether (1) the declarant was to be a witness, (2) the declarant became
unavailable, (3) the defendant’s misconduct caused the unavailability, and (4) the defendant
intended by his misconduct to prevent the declarant from testifying. The appellate court held
that because the defendant did not cause the deportation and because nothing in the record
indicated that the defendant intended to keep the coperpetrator from testifying, the defendant had
not forfeited his Confrontation Clause rights.
Other Availability Issues
State Court Cases
Corona v. State, 64 So.3d 1232 (Fla. 2011)
Citing two prior state precedents, the Florida Supreme Court held that the pre-trial discovery
depositions were an inadequate opportunity for cross-examination. The depositions are designed
to uncover evidence and potential witnesses, not for impeachment of the witness. Thus, they are
not an adequate substitute for cross-examining the witness. Here, because the defendant’s only
prior opportunity to cross-examine the witness was at a discovery deposition, the admission of
that witness’s testimony violated the Confrontation Clause.
State v. Cabbell, 24 A.3d 758 (N.J. 2011)
The opportunity to cross-examine a witness is not satisfied by cross-examination during a
hearing outside the presence of the jury which is conducted to determine the reliability of the
witness’s testimony, particularly where the witness is otherwise available and where the defense
was not informed in advance of the hearing that the hearing would be the only opportunity to
cross-examine the witness.

State v. Sine, 167 P.3d 485 (Or. Ct. App. 2007)
At trial, over the defendant’s objection, the court admitted the defendant’s wife’s “petition to
plead guilty” which inculpated the defendant as a coconspirator. She asserted the spousal
privilege at trial. The trial court admitted her statement even though it conceded that it was
testimonial, reasoning that the state having subpoenaed the wife to testify had made her available
for cross-examination.
On appeal, the state conceded error, and the appellate court explained that subpoenaing someone
is not sufficient to make them available where they assert a privilege not to testify because the
privilege makes the unavailable for cross-examination. Reversed.
Wilson v. State, No. 05-06-00788, 2007 WL 2193347 (Tex. App. Aug. 1, 2007) (unreported)
At trial for robbery, the court admitted the nontestifying codefendant’s written confession. The
codefendant claimed that the defendant approached the codefendant and suggested the robbery
and specifically asked the codefendant to be the driver. When the prosecution moved to admit
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the statement, the defense objected, and a hearing was held outside the presence of the jury. The
prosecution indicated it had subpoenaed the codefendant and had offered him testimonial
immunity. During the hearing, the codefendant testified that he understood that he could be
compelled to testify, and the defense did not cross-examine him. Despite finding the
codefendant available, the court admitted the confession. The codefendant never testified in
front of the jury.
The appellate court ruled that it was the prosecution’s burden to demonstrate the confession was
admissible, and without calling the codefendant it was not. The court suggested, without
explicitly stating, that it was improper for the prosecution to have argued in front of the jury that
if the defendant wanted to cross-examine the codefendant, he was available to do so. In finding
prejudice, the court noted that that the prosecution argued in its closing that the statement should
be used to resolve any doubts about the evidence. Reversed.
In re State ex rel. A.E.L., No. FJ-03-2345-04D, 2007 WL 1555329 (N.J. Super. Ct. App. Div.
May 30, 2007) (unreported)
At trial for sexual assault, the complainant testified that he had seen someone’s penis, but was
unable or unwilling to testify about who he had seen. The defense did not cross-examine the
complainant. After the complainant’s testimony, the state sought to introduce a videotaped
interview of the complainant, during which the complainant identified the defendant as the
perpetrator. The defense objected to its admission and, in the alternative, asked to cross-examine
the complainant about the interview. The trial court refused, ruling that any cross-examination
would not be productive, and defense counsel agreed.
The appellate court reversed, holding that although the defense had the opportunity to crossexamine the witness, it was not sufficient because the court did not make the witness available
for cross-examination after introduction of the videotaped interview. It noted, but explicitly did
not rely on, a state opinion discussing in dicta the situation where a child victim is unable or
unwilling to respond to questions and is thus not available for cross-examination. Instead, the
appellate court held that the judge erred by declaring the child unavailable without giving the
defense an opportunity to ask questions. Reversed.
Howard v. State, 853 N.E.2d 461 (Ind. 2006)
At trial for child sexual abuse, the court admitted the deposition testimony of the complainant.
The complainant took the stand, but began crying and eventually said she could not testify. The
trial court found her unavailable.
The appellate court reversed. Although its discussion of whether the statements were admissible
was largely couched in terms of the Confrontation Clause, the court analyzed whether the
complainant was unavailable under the state’s “protected person statute.” It used that analysis to
find the state’s showing of unavailability inadequate for Confrontation Clause purposes. The
lack of testimony by a medical or mental health professional about the nature and extent of her
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condition rendering her unavailable and absence of a finding that the complainant was unable to
participate for medical reasons or otherwise incompetent to testify rendered the state’s showing
of unavailability inadequate. Reversed.
Improperly Limited Cross-Examination
Witness Refusal or Inability to Testify
Federal District Court Cases
United States v. Smallwood, No. 5:08-CR-38, 2010 WL 4168823 (W.D. Ky. Oct. 12, 2010)
Prior to trial, the trial court held that tool mark testimony, claiming that particular cuts could be
made by a particular knife, was inadmissible. The purported expert claimed to be unable to
review photos offered by the defense to discuss the identification because the photos were of low
quality.
The court excluded the testimony, reasoning, in part, that the expert’s testimony could not
meaningfully be cross-examined.
State Court Cases
Deloatch v. State, 673 S.E.2d 576 (Ga. Ct. App. 2009)
At trial for armed robbery, the prosecutor examined the alleged codefendant about statements he
made to the police regarding prior robberies undertaken in a manner similar to the one in
question. The statements inculpated the defendant in those robberies and were used to show a
common modus operandi. The codefendant refused to answer any questions from any party,
pleading a Fifth Amendment privilege in response to each question.
The appellate court reversed. It held that allowing the prosecutor to read the statements into the
record, while not technically testimony, violated the defendant’s confrontation rights because he
was not given an opportunity to examine the codefendant about them.
State v. Zamarripa, 199 P.3d 846 (N.M. 2008)
At trial, a witness who had previously given a statement was given limited immunity from
prosecution related to his testimony. He would not be prosecuted based on the statements he
made confirming that he had made the statement to the police, but the immunity did not reach
testimony about the subject of the statements. The witness claimed a Fifth Amendment privilege
as to the latter statements.
The appellate court reversed. Because the witness was never available to the defense for crossexamination about the substance of the statements, the cross-examination was impermissibly
restrictive. The error was not harmless because of the emphasis the state placed on it in closing
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argument, because it was the only non-self-serving testimony that undermined the defendant’s
claim of self-defense, and because there was otherwise “very little direct evidence” that the
crime was gang related, the state’s theory of the case. Reversed.
State v. Mitchell, 662 S.E.2d 493 (S.C. Ct. App. 2008)
Where a witness merely took the stand, was subject to some direct examination, and then refused
to testify further, the defendant did not have an opportunity to cross-examine the witness such
that the introduction of the witness’s statement violated the Confrontation Clause. Reversed.
Milton v. State, 993 So.2d 1047 (Fla. Dist. Ct. App. 2008)
The trial court, over a defense objection, allowed the prosecution to ask leading questions of the
previously convicted codefendant despite his refusal to testify. The prosecution asked a series of
leading questions, each suggesting that the codefendant had offered statements inculpating the
defendant, and the codefendant witness refused to answer them. The defense asked only one
question, whether the codefendant would continue to refuse to answer questions. He answered in
the affirmative.
The appellate court noted that the prosecution had notice, based on the preliminary hearing, that
the witness would not testify, making the error more egregious. Reversed.
State v. Blue, 717 N.W.2d 558 (N.D. 2006)
The trial court admitted the videotaped statement of the child complainant over a defense
objection. The complainant made the statements to a forensic interviewer, who, upon
completion of the interview, provided a police officer with a copy of the interview. The
interview took place at a Child Advocacy Center and the investigating officer watched the
interview watched the interview in another room. Prior to trial, the court held an evidentiary
hearing on whether the complainant was competent to testify. During the hearing the
complainant sat on her mother’s lap, and the defense asked no questions. At its conclusion, the
court determined the complainant was unavailable.
The appellate court held that the forensic interviewer was the “functional equivalent” of a police
interview and, thus, produced a testimonial statement. It also held that, contrary to the state’s
argument, the defense had not had an opportunity to cross-examine the complainant. It held
that a witness’s “mere appearance at a preliminary hearing is not an adequate opportunity for
cross-examination for purposes under the Confrontation Clause.” It emphasized that if the
complainant had testified at trial, the videotaped statement may have been admissible. Reversed.
State v. Sanlin, No. W2004-00841-CCA-R3-CD, 2005 WL 1105227 (Tenn. Ct. App. May 6,
2005) (unreported)
At trial for aggravated robbery and aggravated kidnapping, the trial court admitted testimony that
the nontestifying codefendant had pled guilty. The codefendant was called to testify by the
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prosecution, even though the prosecution knew that the codefendant intended to make a claim of
privilege.
The appellate court reversed. It held that the guilty plea was testimonial hearsay and should not
have been admitted. The court found a violation of due process and the right to confrontation.
Due process was violated because “the prosecutor consciously attempt[ed] to influence the jury
by building its case out of inferences arising from the use of testimonial privilege.” The
defense’s lack of opportunity to cross-examine the codefendant violated the defendant’s right to
confrontation. The court assessed the following factors: “(1) the prosecutor’s intent in calling
the witness; (2) the number of questions which elicit an assertion of the privilege; (3) whether
either side attempted to draw adverse inferences, in closing argument or at any time during trial,
from the witness’ refusal to testify; (4) whether inferences relate to central issues or collateral
matters; (5) whether the inferences constitute the only evidence bearing upon the issue or are
cumulative of other evidence; and (6) whether the trial court provided curative instructions.”
The court primarily relied upon the prosecutor’s knowledge of the codefendant’s lack of
cooperation and his emphasis on the allocution in closing argument to find prejudice.
State v. Armstrong, Nos. 2001-T-120, 2002-T-0071, 2004 WL 2376467 (Ohio Ct. App. Oct. 22,
2004) (unreported)
At trial, the prosecutor called a previously cooperating witness to testify. The witness had also
previously confessed, implicating the defendant. At trial, the witness claimed a lack of memory,
and the prosecutor attempted to refresh the witness’s recollection in front of the jury by read
portions of his confession to him. The witness never acknowledged making the confession, but
did not invoke Fifth Amendment privilege.
The appellate court reversed. It held that because the witness never specifically “affirmed the
statement as his,” the defendant had been precluded from cross-examining him on the statement.
Even though the prosecutor’s statements are not evidence, the court, citing Douglas v. Alabama,
380 U.S. 415 (1965), held that allowing the prosecutor to introduce the statements in that manner
freed the jury to infer their truth. It emphasized that the key in Douglas was the inability to
cross-examine, and that it was irrelevant whether the inability was based on a purported lack of
memory, as here, or on an invocation of the Fifth Amendment, as in Douglas.
People v. Campos, No. B166705, 2004 WL 2223055 (Cal. Ct. App. Oct. 5, 2004) (unreported)
At trial for first degree murder, the court admitted the prior testimony of a non-testifying alleged
accomplice who had testified in a separate trial against other alleged accomplices. At the
defendant’s preliminary hearing and trial the alleged accomplice declined to answer any
questions.
The appellate court reversed, rejecting the state’s contention that the alleged accomplice’s mere
presence was sufficient to make him available for cross-examination. The court disagreed,
noting that the defendant had “no meaningful opportunity” to cross-examine the accomplice.
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The admission was not harmless because the accomplice’s testimony “fit the other pieces of
evidence into a coherent whole.”
Miller v. State, 177 S.W.3d 1 (Tex. App. 2004)
At trial, the complainant testified as the state’s primary witness. Even though the complainant
spoke English well enough to identify the defendant as the perpetrator—but only in response to
the state’s leading questions—the complainant’s inability to understand basic questions put to
him by the defense rendered him unavailable for meaningful cross-examination. Reversed.
Court Imposed Limitations
U.S. Court of Appeals Cases
Tuite v. Martel, No. 09-56267, 2011 WL 6042371 (9th Cir. Dec. 6, 2011)
At trial for murder, the court did not permit the defense to cross-examine the state’s expert about
a letter he wrote criticizing the defense expert. The defense expert worked for the law
enforcement investigating the case, but had concluded that the crime scene reflected a crime
committed by someone familiar with the location. The state’s theory was that the crime was an
attack by a stranger. The letter accused the defense expert of obstructing justice.
On appeal, the court held that the limitation was in error because it would have undermined the
credibility of the state’s expert by demonstrating his bias in favor of the prosecution.
Brinson v. Walker, 547 F.3d 387 (2d Cir. 2008)
At a trial for robbery, the court did not permit the African-American defendant to cross-examine
the complainant about his racial bias towards African-American people. The defendant intended
to cross-examine him about being fired for using racial epithets. The trial court held that because
the statements were both subsequent to the incident, they were irrelevant to the witness bias at
the time of the incident. The defendant was convicted and appealed. The appellate court
affirmed and held that the statements, while relevant, were mere evidence of general ill will, not
evidence of ill will towards the defendant. The defendant petitioned for habeas corpus, and the
Court of Appeals affirmed the Federal District Court’s grant of relief.
It held that the state courts’ decisions unreasonably applied the principle that a defendant may
cross-examine a witness about “a prototypical form of bias,” such as racial bias, and noted that
the witness’s bias was “an extreme form of bias.” It held that the error was not harmless because
the witness was the only source of evidence against the defendant and that the little corroborating
evidence was consistent with the defendant’s theory of the case. Affirmed.
Barbe v. McBride, 521 F.3d 443 (4th Cir. 2008)
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At trial for sexual abuse of a minor, the court relied on the state court’s per se bar in its rape
shield law to prohibiting the defendant from cross-examining the state’s psychological expert
about the minor victim’s prior accusations of sexual assault, undermining the defendant’s ability
to argue that it was the prior incidents of sexual assault that created the victim’s “psychological
profile” as an adult who had been abused as a child.
The Court of Appeals held that the state court’s failure to “determine, on a case-by-case basis,
whether application of the rule is arbitrary or disproportionate to the State’s legitimate interests”
(internal quotations omitted) was an unreasonable application of federal law. The exclusion in
this case was not harmless error because it was “the only way to rebut the inference created by
the expert’s testimony.”
Burbank v. Cain, 535 F.3d 350 (5th Cir. 2008)
At trial, the court did not permit the defense to cross-examine the state’s “principal witness”
about “whether she had reached a plea agreement” on her pending criminal charges. The trial
court did permit the defense to establish that she had pending charges of an unspecified nature
and that her case had been continued twenty-two times. The Court of Appeals found the error
not to be harmless beyond a reasonable doubt because the witness was the only evidence linking
the defendant to the crime and because the plea agreement was directly related to the witness’s
testimony in the pending case. It did not explicitly address whether admitting the statement was
error because it agreed with the state court finding of error and only disagreed as to
harmlessness. Affirmed.
Hargrave v. McKee, No. 05-1536, 2007 WL 2818339 (6th Cir. Sept. 27, 2007) (unreported)
At trial for carjacking, the court prohibited defense counsel from cross-examining a witness
about her psychiatric condition and whether she was using any medication. The trial court
limited the cross on these subjects to whether the witness had been diagnosed with
schizophrenia.
The Court of Appeals ruled that the proposed areas of cross-examination addressed the witness’s
“perceptions of the events at issue,” including “ongoing delusions in many ways similar to the
allegations” for which the defendant was being prosecuted, and were areas of cross-examination
protected by the Confrontation Clause. They were not “with regard to general credibility,” as
claimed by the prosecution. The error was not harmless because the witness’s testimony
provided the only evidence of two elements of the crime. The Court of Appeals also found that
the state had waived the harmless argument by failing to address it in its briefing. Reversed and
remanded.
Vasquez v. Jones, 496 F.3d 564 (6th Cir. 2007)
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At trial for homicide, the court admitted a preliminary hearing transcript of a witness who
subsequently became unavailable. The court, however, did not permit defense counsel to present
evidence of the witness’s prior criminal record at the trial concluding that defense counsel’s
motive to cross-examine the witness at the preliminary hearing was “close enough” for trial, and
thus the failure to cross-examine the witness about the priors at the preliminary hearing barred
admission at trial.
The Court of Appeals held that the state court’s “failure to recognize that the trial court’s
exclusion of Vasquez’s impeachment evidence” was an unreasonable application of Supreme
Court precedent. The error had a “substantial and injurious effect” because of the importance of
the witness’s testimony, as demonstrated by the prosecutor’s argument, the jury’s request to
review the transcript, and that the witness was a “tiebreaker” between defense and prosecution
witnesses on whether the defendant shot a gun. The court also noted that it would have been
“unrealistic” for defense counsel to be prepared to question the witness about his criminal history
at the preliminary hearing. Reversed and remanded.
United States v. Jimenez, 464 F.3d 555 (5th Cir. 2006)
At trial for narcotics trafficking, the district court prohibited the defense from cross-examining a
police officer about his exact location during his observation of the defendant’s house during the
alleged offense.
The Court of Appeals held that prohibiting such examination violated the Confrontation Clause
because the officer was the only witness to the defendant’s distribution, and the government did
not otherwise offer evidence—such as photographs of the transactions or witness statements
about receiving the drugs—that the transactions took place. Hence, the proposed crossexamination was the only way to test the reliability of the testimony. Looking “primarily at the
specific testimony omitted, rather than the weight of the evidence notwithstanding the omitted
testimony,” the court found that the error was not harmless because the credibility of the witness
was “not just the Government’s smoking gun; it was the Government’s only gun.” Vacated and
remanded.
United States v. Vega Molina, 407 F.3d 511 (1st Cir. 2005)
At trial, the district court did not permit the defendant to cross-examine a co-conspirator about
her motives for cooperating with the authorities. Specifically, the trial court prohibited the
defendant from cross-examining her about her motive for joining the conspiracy, another
defendant’s prior acts of violence against her, and statements by the other defendant to the effect
that he and the witness had conspired to frame the defendant.
The Court of Appeal found each limitation erroneous. It found the latter “serious,” especially in
light of the defendant’s main theory of defense: he was framed. The court held that the
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government’s failure to argue that the error was harmless waived the argument, but noted that
“there is every reason to doubt whether the outcome . . . would have been the same.”
White v. Coplan, 399 F.3d 18 (1st Cir. 2005)
At trial for sexual assault, the trial court did not permit the defendant to cross-examine the only
two witnesses with firsthand knowledge of the alleged assaults, the alleged victims, about their
prior allegations of sexual assault. He proffered evidence that their prior allegations were false,
including an acquittal and a confession that they had lied about prior allegations. At closing, the
prosecutor emphasized that his case was built on the theory that “the kids are telling the truth”
and that the defense’s case is that “[t]he kids are lying.” The trial court limited the crossexamination because it held that the defendant could not establish, as state law required, that the
prior accusations were “demonstrably false.” The New Hampshire Supreme Court affirmed and
held that while the defendant had established a “reasonable probability” of their falsity, he had
not met the “demonstrably false” standard. The state court also rejected the defendant’s claim
that the rule violated the Confrontation Clause. On habeas corpus, the Federal District Court
denied relief, and the Court of Appeals reversed.
The Court of Appeals held that the state court’s limit on cross-examination was an unreasonable
application of clearly established law. It noted the similarity between the past accusations to the
assault alleged and the state court finding that there was a “reasonable probability” allegations
were false. Because the only realistic way the petitioner could defend himself was by
impeaching witnesses, he had a right to do so. However, the court limited its ruling, noting that
the “demonstrably false” standard was not in all cases “infirm.” Vacated and remanded.
Howard v. Walker, 406 F.3d 114 (2d Cir. 2005)
The trial court ruled that if the defense cross-examined the state’s expert on the basis of his
opinion, then the statements the expert relied upon, including a non-testifying co-conspirator’s
statement, could be admitted at trial. The defendant was convicted and lost on appeal and in
state court. The latter ruled that the expert would have reached his decision with or without the
co-conspirator’s statement and that any error was therefore harmless. The Federal District Court
denied his petition, and he appealed.
Because the conviction became final before Crawford, the Court of Appeals applied preCrawford case law. It ruled that the co-conspirator’s statement was inadmissible and that the
state court’s determination was an unreasonable determination of the facts because the expert
could not have reached the same conclusion without the statements. Thus, the Court of Appeals
ruled that the state court unconstitutionally required petitioner to choose between crossexamining the expert and having constitutionally inadmissible evidence presented against him.
Reversed and remanded.
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Kittleson v. Dretke, 426 F.3d 306 (5th Cir. 2005)
At trial for indecency with a child by contact, the court did not permit the defense to crossexamine two witnesses, the complainant and the reporting officer, about the recantation of a
second complainant. The trial court also barred him from cross-examining the complainant
about her past accusations of sexual abuse. Nonetheless, the jury did hear evidence there was a
second complainant when the reporting officer testified that he arranged for child protective
services interviews for both complainants.
The Court of Appeals ruled that the claim of Confrontation Clause error was fairly presented in
state court because of the defendant’s citation to the Sixth and Fourteenth Amendments and to
case law he described as finding a violation of the “confrontation clause right from denial of
cross-examination.” The Court of Appeals found the limits on cross-examination a violation of
the defendant’s rights because “[e]xcluding the evidence of Jana’s recanted testimony left
[defendant] unable to fully cross examine . . . the two critical prosecution witnesses, and . . . the
jury was left with the impression that [the second victim] also accused” the defendant. It noted
that “[t]his case turned entirely on the [victim’s] word against [the defendant’s],” and, thus,
found that the error had a “substantial and injurious effect on the jury’s verdict.”
Federal District Court
Corby v. Artus, 783 F. Supp. 2d 547 (S.D. N.Y. 2011)
At trial for murder, the defense sought to cross-examine the primary prosecution witness against
him about her motive to lie. She owned the room where the murder took place, was allegedly
present at the murder, and allegedly rented the room to the defendant. The defendant sought to
cross-examine her about her initial denial of having any information about the murder, that the
investigating detective informed the witness that the defendant had implicated her in the murder
and only after learning she had been implicated did she provide crucial details about the murder.
The federal district court granted the petition for writ of habeas corpus on the basis of a
Confrontation Clause violation. It explained that the Supreme Court has made clear that “the
ability to explore varieties of bias, and not merely the existence of reasons for bias in general, is
essential to the proper exercise of the right to confront witnesses.” Here, excluding crossexamination of the “retaliation-based bias, and/or bias stemming from a desire to shift blame”
was an unreasonable application of clearly established federal law.
State Court Cases
Downing v. State, 259 P.3d 365 (Wyo. 2011)
At trial for unlawful delivery of a controlled substance, the court prohibited the defense from
cross-examining the confidential informant about prior purchases he made as part of a defense
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theory that the informant had conned the police and framed the defendant. The limitation was
improper because it prevented the defense from impeaching the witness and prevented the
defense from presenting its theory of the case.
Guam v. Ojeda, CRA-10-011, 2011 WL 6937376 (Guam Dec. 23, 2011) (unreported)
At trial for criminal sexual conduct, the prosecution presented the evidence of a medical
professional who talked at length about an injury to the complainant child’s hymen. She
explained that the injury was consistent with penetration. Nonetheless, the trial court barred the
defense from cross-examining the complainant about allegations she had made against another
man, who the defense maintained was the source of the complainant’s injuries.
The appellate court held that the restriction violated the defendant’s confrontation rights. It
explained that ordinarily the “victim’s virginity, or lack thereof, has no relevance” in such a case,
the prosecution made it an issue, and barring the defense from inquiring about the other
allegations was prejudicial error.
State v. Howland, 808 N.W.2d 742 (Wis. Dec. 14, 2011) (unreported)
At trial for sexual assault of a child, the trial court erred by failing to allow the defendant to
cross-examine the complainant’s mother about her pending charges of physical abuse of the
complainant. Regardless of any promises made by the State, because any witness with pending
charges is “both ‘subject to the coercive power of the [S]tate’ and ‘the object of its leniency.’”
(alteration in original). Because the prosecution repeatedly argued that the complainant’s mother
had nothing to gain by testifying, the error was not harmless.
Blackman v. State, No. 53468, 2011 WL 6143427 (Nev. Dec. 7, 2011) (unreported)
At trial for pandering of a child and related offenses, the court erred by failing to admit evidence
of a “crucial” witness’s juvenile delinquency status. The state’s interest in the confidentiality of
those records was outweighed by the defendant’s right to confrontation because the records were
offered to “expose bias and show facts that might color the witness’s testimony.” The court
found error without specifying whether the trial court or the trial attorney was at fault. Reversed.
Blades v. United States, 25 A.3d 39 (D.C. 2011)
At trial for murder, only one witness was called. The witness testified that he was on “very good
terms” with the defendant and that he had “no grudges” against him. Nonetheless, the trial court
did not permit the defense to cross-examine the witness about an incident during which the
defendant was fleeing from a shooter and the shooter shot the witness’s stepson. The defendant
had refused to testify against the shooter.
The appellate court reversed. It held that the trial court unduly limited the defendant’s ability to
cross-examine the witness about his bias towards the defendant. It explained that where the
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government’s case rests on the testimony of one witness, the trial court should be “particularly
prepared” to permit cross-examination of that witness.
State v. Salas, 253 P.3d 798 (Kan. Ct. App. 2011)
The trial court’s prohibiting the defendant from cross-examining the alleged accomplice-comeinformant about both the plea agreement he obtained in exchange for his testimony and other
pending charges against him violated the defendant’s right to confront the alleged accomplice.
The appellate court noted that trial courts should give particular latitude in the cross-examination
of accomplices given their interest in minimizing their own culpability.
State v. Folk, 256 P.3d 735 (Idaho 2011)
At trial for sexual abuse of a child, the court permitted the complainant child to testify via closed
circuit television. The court also required the defendant, who was representing himself, to write
out the questions he wished to ask the child on cross-examination for a stand-in attorney to read
to the child. The court had found that based on nightmares, both limitations were necessary.
The appellate court reversed. It found that the record was inadequate to find such limitations
necessary. It noted that there was evidence of one nightmare, not nightmares. Thus, the only
factual basis for the finding was flawed and insufficient. The court also noted that crossexamination is a “fluid” exercise, particularly with children. Thus, requiring the defendant to
write out his questions unduly limited his ability to reword questions and to dynamically respond
to the witness.

People v. Abelo, 79 A.D.3d 668 (N.Y. App. Div. 2010)
At trial for driving with a suspended license, the court admitted a notice of suspension without
the testimony of anyone familiar with the mailing practices of the Department of Motor Vehicles
at the time the suspension took place. Whether it was mailed was relevant to whether the
defendant knew or had reason to know that his license was suspended.
The appellate court reversed, holding that where no one testified regarding the practices of the
DMV at the time of the suspension, the defendant was deprived of his right to confront the
witnesses against him because the notice was testimonial evidence.
State v. Herring, 19 A.3d 81 (Vt. 2010)
At trial for sexual assault the complainant testified that the defendant forced her to repeatedly
wash her mouth out with Alka-Seltzer after he forced her to have oral sex. At trial she testified
this took place at his home. The defendant sought to introduce her prior inconsistent statement
claiming the incident took place in a hotel in a different county. The trial court excluded the
evidence because it ruled the evidence was unduly prejudicial to the defendant.
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The appellate court reversed. It held that the credibility of the complainant was central to the
prosecution’s case even though other evidence suggested he was guilty, including the
defendant’s brothers testimony about an alleged confession he made to them. The complainant’s
credibility was central because the brothers had not reported the confession in their initial
interaction with the police.
People v. Durden, Nos. A121901, A126649, 2010 WL 2982816 (Cal. Ct. App. July 30, 2010)
(unreported)
At trial, the court prohibited defense counsel from cross-examining the investigating officer
about where he was located when he observed the defendant’s alleged crime. The appellate
court ruled that the prohibition violated the defendant’s right to confrontation because of the
importance of the officer’s testimony and because of the jury’s questions which suggested they
had doubts about the officer’s ability to adequately observe the defendant.
State v. Calvin N., 998 A.2d 810 (Conn. App. Ct. 2010)
At trial, the court prohibited defense counsel from cross-examining the complainant about a
letter in which she acknowledged she fabricated the allegations about the defendant. The state
claimed the letter was written by the complainant’s mother, who was facing charges related to
the letter.
Finding plain error, the appellate court held that the trial court’s sole reliance on the state’s
representation that the complainant’s mother authored the letter was an abuse of discretion. It
also foreclosed a “significant means of attacking the complainant’s version of events” and was
“central to the defendant’s theory of defense.” Although the alleged motives for fabricating the
charges were covered during cross-examination, not being able to cross-examine the witness on
her admission that she fabricated the charges was not harmless. Reversed.
Cousins v. Commonwealth, 693 S.E.2d 283 (Va. Ct. App. 2010)
At a murder trial, the court prohibited the defense from cross-examining a witness about whether
the witness and the alleged victim were both in a gang. At the preliminary hearing the witness
had denied either were in a gang.
The appellate court found prejudicial error because being “members of the same street gang was
relevant to the issue of [the witness’s] bias and that whether [the witness] was biased was
material to appellant’s theory of the case[, self-defense].” It noted that the defendant had
proffered evidence of two officers who knew the witness and victim were in the same gang.
Reversed.
State v. T.T., 157 Wash. App. 1011 (Wash. Ct. App. 2010)
At trial the court admitted incriminating statements of the testifying child complainant that he
had previously made to his foster mother and an investigating officer. At trial, the state asked
the complainant about the underlying offense, but not the statements. The alleged sexual contact
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was described in the statements, but not the testimony. The statements were introduced by the
foster mother and the officer.
The appellate court held that for the defendant to have had an adequate opportunity for crossexamination, the state had “to elicit the damaging testimony from the witness so the defendant
may cross-examine if he so chooses.” Asking the complainant about the alleged crime, but not
the statements made to the officer and the foster mother, was insufficient to allow the defendant
an opportunity to cross-examine the complainant and violated the Confrontation Clause.
State v. Nam, No. 36468-9-II, 2010 WL 1687732 (Wash. Ct. App. April 27, 2010) (unreported)
The trial court prevented the defendant from cross-examining the victim and the state’s “chief
witness” about whether she wanted to be sure that the defendant went to jail.
The appellate court had previously reversed a conviction for the trial court’s same limitation.
The appellate court again reversed, holding that the trial court violated the defendant’s
Confrontation Clause rights. The trial court’s requirement of an offer of proof regarding the area
of cross-examination “would severely restrict legitimate cross-examination.” The error was not
harmless because without the witness’s testimony the evidence at trial would not have been
sufficient for conviction. Reversed.
State v. Stinson, 227 P.3d 11 (Kan. Ct. App. 2010)
The trial court prohibited the defense from cross-examining the state’s witness about his prior
inconsistent statements. In the prior statements, the witness said he was in a close and not in the
room where the incident occurred.
The appellate court found that the limitation violated the Confrontation Clause and was an abuse
of discretion because it would be “extremely unlikely” that the witness saw the incident from the
closet. The trial court’s prohibition had a “likelihood of changing the verdict” because, even
though some inconsistencies were pointed out at trial, the jury’s repeated questions implicating
the witness’s credibility “might have been enough to tip the balance.” Reversed.
Williams v. State, No. 12-07-00428-CR, 2009 WL 4377196 (Tex. App. Dec. 2, 2009)
(unreported)
The trial court prohibited the defense from cross-examining the detective who interviewed the
detective about the detective’s prior inconsistent statements. The detective testified that he did
not think the defendant acted in defense of a third person and that he did not believe the
defendant’s claim of self-defense. Previously, during the detective’s interview of the defendant,
the detective stated that the believed the defendant’s defense of others and self-defense account.
The appellate court held that the limitation was an abuse of discretion because the statements
were contradictory and kept information from the jury that would have allowed it to “more
completely assess [the detective’s] credibility.” Reversed.
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State v. Marovich, No. A08-1617, 2009 WL 3426508 (Minn. Ct. App. Oct. 27, 2009)
(unreported)
At trial for allegedly selling a controlled substance to a confidential informant (CI), the court
prohibited the defense from inquiring about the CI’s ongoing drug use after the incident and the
CI’s drug use around the time of the incident.
The appellate court held that the prohibition “compromised the fairness of the proceedings” for
three reasons: (1) it prevented the defense from presenting evidence that the CI was cooperating
to avoid punishment for his criminal conduct and to continue his paid position as a CI, (2) it
undermined the defense’s ability to counter the state’s claim that the CI had rehabilitated himself
and was, therefore, a reliable witness, and (3) it prevented the defense from attacking the CI’s
memory. The error was not harmless because the CI had a “powerful motive” to testify
favorably. Reversed.
Mendenhall v. State, 18 So.3d 915 (Miss. Ct. App. 2009)
The trial court prohibited defense counsel from cross-examining the witness who identified the
defendant as the perpetrator about a statement the witness made to his doctor admitting that he
had been drinking on the night of the crime. He was cross-examined about whether he had been
drinking, but he denied it.
The appellate court ruled that the limitation was an abuse of discretion because the credibility of
the testimony as to the identification “bore directly on the truthfulness of his testimony regarding
a material fact in issue.” Reversed.
Howard v. United States, 978 A.2d 1202 (D.C. 2009)
The trial court prohibited cross-examination of the arresting police officers about their
knowledge of a civil law suit filed by the defendant against the police department. The judge,
during the preliminary hearing, had previously found that the officer applying for a search
warrant did not know about the suit.
The appellate court held that the limit kept the defendant from exposing a “prototypical form of
bias” and that the trial court erred in relying on his prior credibility hearing to use his prior
credibility determination to keep credibility information from the jury. The defendant had “ a
well-reasoned suspicion” of bias based on the arresting officer’s involvement in the incident
underlying the civil suit. Reversed.
Ryan v. State, No. 04-08-00594-CR, 2009 WL 2045211 (Tex. App. July 15, 2009) (unreported)
At trial for assault of the defendant’s common-law wife, the court prohibited cross-examination
of the defendant’s wife about an ongoing custody dispute between the defendant and the witness.
The appellate court held that the trial court abused its discretion because questions about the
custody proceedings would be relevant to the witness’s “motivation to exaggerate her testimony
at trial.” The error was not harmless beyond a reasonable doubt because the limit the witness
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was the only witness to the offense, and her motive to lie or exaggerate to gain custody of their
children was the “critical issue for the defense.”
Hibbs v. State, 683 S.E.2d 329 (Ga. Ct. App. 2009)
The trial court abused its discretion and violated the Defendant’s Confrontation Clause rights by
preventing the defendant from cross-examining the witness about his juvenile case or whether he
was in custody at the time the police interviewed him. The error was not harmless beyond a
reasonable doubt because the prosecution’s case relied primarily on the witness’s credibility.
State v. Clark, 974 A.2d 558 (R.I. 2009)
The trial court prohibited the defense from cross-examining the complaining witness about a
civil suit filed against the defendant’s employer for the actions that led to the prosecution.
The appellate court reversed. Even though the suit had settled prior to the criminal trial, at the
time the witness gave the statement, he had a “financial interest that could motivate him to set
forth a foundation of facts propitious to his claim.” Because he gave a statement to the police in
his attorney’s office and was permitted to edit the transcript of it, allegedly to harmonize it with
other witness statements, the limitation was reversible error. As an aside, the court admonished
the prosecution about its use of “broad-based in limine motions [that] . . . impact the
constitutional safeguards guaranteed to criminal defendants.” It also encouraged the trial courts
to conduct voir dire “or otherwise carefully review the challenged evidence and cautiously
exercise her or his discretion.”
Commonwealth v. Ortiz, 900 N.E.2d 913 (Mass. App. Ct. 2009) (table decision)
At trial for attempted murder, the court prevented the defense from asking the prosecution’s key
witness questions about whether he had sold drugs to the victim on the day of the shooting. The
questions were based on a report of a confidential informant that the prosecution disclosed on the
day of the trial and the defense proffered were relevant to whether the witness had a motive to
falsely identify the defendant. An independent witness testified that the shooter was ten inches
taller and heavier than the defendant.
The appellate court reversed. It held that the disclosed report and the independent witness
provided an adequate factual basis for conducting the cross-examination addressing the witness’s
motive for bias.
Obiazor v. United States, 964 A.2d 147 (D.C. 2009)
At trial for sexual assault of a minor, the defendant sought to cross-examine the complainant
about a prior allegation of assault five years before this alleged incident. The prior allegation
involved the complainant’s grandmother’s ex-boyfriend and a hickey between her shoulder and
collarbone, the same injury allegedly caused by the defendant. The defendant explained that
after the prior allegation, the complainant’s grandmother was particularly protective of and
affectionate to her.
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The appellate court reversed. It held that the defense’s proffered reason for cross-examining the
complainant on the subject was adequate to warrant putting the evidence before the jury. In
addition to noting the similarity of the injuries in question, the court also noted that in the
complainant’s statement to the police about this incident, she mentioned the prior allegation and
rejected the state’s claim that the events were dissimilar and remote in time.
State v. Chisolm, No. 05-01-0086, 2008 WL 4998507 (N.J. Super. Ct. App. Div. Nov. 26, 2008)
(unreported)
At trial, the court prohibited the defense from cross-examining the state’s key witness about his
“community service for life” (CSL) prevented an adequate cross-examination, even where the
witness had technically answered truthfully when he said he was not on parole.
The appellate court reversed. It held that the difference between CSL and parole is a “distinction
without a difference,” and the “numerous conditions” of the status resulted in the state having a
“considerable ‘hold’” over the witness that the defense should have been able to cross-examine
him about. Reversed.
Vires v. Commonwealth, No. 2006-SC-000072-MR, 2008 WL 4692362 (Ky. Oct. 23, 2008)
(unreported)
Prior to trial, a witness had been subjected to a deposition. At trial, the court limited examination
of the witness to the questions asked during the deposition.
The appellate court reached the constitutional question, holding that the limitation violated the
Confrontation Clause, even though it also reversed on state law grounds. It held that the defense
should have been able to explore other areas with the witness. In dicta, the appellate court noted
that the hearsay testimony of another witness, a medical professional, was testimonial hearsay
because “identification” testimony is almost never offered for diagnosis or treatment. Reversed.
Brown v. United States, 952 A.2d 942 (D.C. 2008)
At trial, the court prohibited counsel from inquiring why a witness was uncomfortable and scared
of an observer in the courtroom.
The appellate court reversed. It held the limitation was unreasonable because the witness was
related to the defendant and the observer had previously threatened her and told her “on
numerous occasions” that he was frustrated he had not been able to find and kill the defendant.
Trial counsel was permitted to ask about the gestures the observer made in the court room, but
not allowing counsel to ask why those gestures made the witness nervous violated the
defendant’s right because he was unable to put her discomfort into context. Reversed.
Kinney v. People, 187 P.3d 548 (Colo. 2008)
At trial, the court prohibited counsel from cross-examining a witness about her expectations
regarding a pending criminal trespass case.
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The Colorado Supreme Court reversed. It held that the limitation was unreasonable because a
pending criminal charge is one of the factors that “might have influenced” the witness. It noted
that the witness had two prior arrest warrants for a different charge dropped in exchange for her
potential cooperation in the case against the defendant. The court explained that a defendant
need not show more than a nexus between the proposed area of cross-examination and an
influence on her testimony; there is no requirement to show an actual offer or promise of
leniency. Reversed.
State v. Stephen F., 188 P.3d 84 (N.M. 2008)
At trial for rape, the court prohibited counsel from cross-examining the complainant about a
prior sexual encounter.
The New Mexico Supreme Court reversed, notwithstanding a rape shield statute to the contrary.
It held that prohibiting the defendant from cross-examining the complainant about the prior
encounter violated the Confrontation Clause where the defendant’s defense was consent and he
sought to introduce the prior sexual encounter (and related parental discipline) to show that she
fabricated the allegation against him to avoid further parental discipline. The appellate court
explained that although there were differences in the two encounters, the differences were
irrelevant because it was the fear of punishment that the defendant sought to demonstrate. The
witness’s immediate disclosure of the encounter, likewise, did not diminish the prior encounter’s
importance because the motive of fear was “central” to the defendant’s case. Allowing the
defendant to cross-examine the witness and her family about their religious convictions was not
sufficient because it was the prior encounter that provided the witness with a motive to fabricate
the current allegation. Reversed.
State v. Jackson, 177 P.3d 419 (Kan. Ct. App. 2008)
At trial for sexual assault of a minor, it was an abuse of discretion to limit the cross-examination
of the complainant about her victimization by other persons during the same time period under
circumstances where the prosecution argued that the defendant’s abuse of the complainant had
been the cause of the deterioration of her behavior. The appellate court explained that the
defendant was entitled to cross-examine the complainant on the subject because it provided an
alternative explanation for the deterioration of her behavior. The appellate court so held despite
the applicability of the state’s rape shield law. Reversed.
State v. Tiernan, 941 A.2d 129 (R.I. 2008)
The trial court prohibited the defense from cross-examining the complainant about whether he
intended to file a civil suit for damages and not whether the victim had an incentive to
exaggerate his injury or provide testimony that would bolster his claim for civil damages.
The appellate court reversed, explaining that the trial court had “cut off [the inquiry] at the
threshold,” and approvingly quoted the D.C. Circuit: “[a] general rule has evolved to the effect
that the trial court should allow cross-examination and the airing of evidence with respect to a
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witness’s pending, or even contemplated, suit against the defendant.” The court also held that
per se reversal was required.
Wilson v. State, 950 A.2d 634 (Del. Super. Ct. 2008)
The trial court prohibited the defense from cross-examining the alleged coconspirator about the
sentence recommendation based on his plea agreement.
The appellate court reversed because the limitation did not “preserve the witness’s constitutional
immunity from self-incrimination, prevent attempts to harass, humiliate or annoy him, or where
the information sought might endanger the witness’ personal safety.”
State v. Sotomayor, No. 00-08-1621-I, 2007 WL 3239142 (N.J. Super. Ct. App. Div. Nov. 5,
2007) (unreported)
The trial court prohibited the defense from cross-examining the complainant about dismissed
criminal charges unless the defendant could show that the charges were dismissed “as a result of
her testifying in this case.”
Reversing, the appellate court explained that “the issue here is not whether the dismissal of the
charges . . . was part of a deal, or even whether the prosecutor’s office believed there was
sufficient evidence to prosecute her. Rather, the issue is what [the witness] was thinking when
she testified for the State.” Because the charges may have affected her cooperation, the
defendant should have been permitted to inquire into this potential bias.
State v. Fernando R., 930 A.2d 78 (Conn. App. Ct. 2007)
The trial court prevented the defendant from cross-examining the victim’s mother about her prior
inconsistent statements and her decision to contribute $4000 towards the defendant’s bail.
The appellate court reversed. At trial for sexual assault of a minor, the victim’s mother testified
that she took her daughter to the hospital after her daughter told her the defendant assaulted her.
The defendant sought to, and was prevented from, cross-examining her about statements she
made to family members claiming that her daughter told her she had touched herself, causing the
injury to her hymen. The defendant’s theory was that based on a prior investigation into the
mother by Child Protective Services, she fabricated the story about the defendant to protect
herself.
The defendant also sought to cross-examine her about her contribution to his bail which would
further corroborate his theory that the daughter had initially told her mother that she hurt herself
and that the mother credited the initial story. The court noted that both matters addressed her
credibility and motive and should not have been excluded. Addressing harm, the court noted that
even though a police officer and physician testified about the injury, the mother’s close
relationship with the victim made her testimony particularly important and the limitations on
addressing her credibility potentially harmful. Reversed.
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Bentley v. State, 930 A.2d 866 (Del. 2007)
At trial for murder, the court admitted the testimony of the defendant’s ex-girlfriend, who, on
direct examination, testified that the defendant was the shooter. On cross-examination, the exgirlfriend admitted that she had earlier identified the other person at the scene, Buddy, as the
shooter. Ultimately, she admitted that she could not see who did the shooting, but that the
defendant had the gun. Buddy testified that the defendant was the shooter. Defense counsel
sought to cross-examine the ex-girlfriend about her relationship with the defendant’s uncle, on
the theory that the new relationship gave her a motive to identify the defendant as the shooter:
with the defendant in jail, they could continue their relationship without him around.
The witness invoked her Fifth Amendment privilege because she and the uncle were being
investigated in a drug conspiracy involving the uncle. The trial court did not require her to
answer the questions. In closing arguments, the prosecution argued that the ex-girlfriend
changed her story because her relationship with the defendant was over and she no longer had a
motive to protect him.
The Delaware Supreme Court held that the limitation violated the defendant’s rights because the
ex-girlfriend’s new relationship could have explained her motive to change her story. It also
emphasized that the prosecution was able to offer an explanation for the change (and did so),
while the defendant was denied such an opportunity. Thus, it held that the violation “created a
substantial danger of prejudice to his right to a fair trial.” Reversed.
In re State ex rel. A.E.L., No. FJ-03-2345-04-D, 2007 WL 1555329 (N.J. Super. Ct. App. Div.
May 30, 2007) (unreported)
At a trial court adjudication of delinquency for several sexual offenses, the court admitted
videotaped statements of the alleged child victim. The statements were made to police officers,
and the child had not been subjected to cross-examination prior to trial. At trial, the child
testified, but claimed to have no memory of the episode. Defense counsel did not cross-examine
the alleged victim, and the trial court held that the alleged victim had no memory of the episode.
The trial court barred defense counsel from recalling the child for further cross-examination.
Nonetheless, the trial court admitted the videotaped statements.
The appellate court reversed and held that trial court improperly barred defense counsel from
cross-examining the child. The limitation prevented the defendant from having an opportunity to
cross-examine the child, so the video was improperly admitted.
People v. Owens, 183 P.3d 568 (Colo. App. 2007)
The defendant was charged with unlawful sexual contact based on an encounter with the
purported victim that was interrupted by the victim’s friend, with whom she had a sexual
relationship. The trial court denied the defendant’s request to cross-examine the victim or
otherwise present information about the victim’s relationship with the friend, based on the state’s
rape shield law.
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On appeal, the defendant argued that the relationship was important because it explained her
motive to lie about the consensual nature of the encounter. The appellate court agreed and found
that the “romantic and sexual relationship with the friend was relevant and highly probative of
the victim’s motive to lie.” Thus, the court found that exclusion violated the defendant’s right to
confront witnesses. Reversed.
People v. Tucker, No. C049338, 2007 WL 1181015 (Cal. Ct. App. April 23, 2007) (unreported)
The trial court declined to conduct an in camera review of the juvenile dependency file of the
defendant’s stepson, a key witness linking the defendant to the crime.
Thus, as the appellate court ruled, the trial court precluded the defendant from exposing the
witness’s bias against her because the files contained evidence that the witness had lied about her
in the past. The appellate court so ruled despite a statutory provision limiting access to the files.
Reversed.
People v. Diaz, No. D047420, 2007 WL 1041472 (Cal. Ct. App. April 9, 2007) (unreported)
At a preliminary hearing, an acquaintance of the defendant testified about the alleged robbery.
When the defense attempted to cross-examine her about her drug use around the time of the
incident, the trial court disallowed it, seeking to protect the witness’s right to be free from selfincrimination. The trial court also noted that based on her demeanor and body language, her
credibility was “minimal at best.” At trial, the prosecution was unable to locate the witness and
sought to introduce the preliminary hearing transcript pursuant to a state evidentiary rule. The
court admitted the testimony over defense counsel’s objection and denied defense counsel’s
request to introduce the credibility finding from the preliminary hearing.
The appellate court held that admitting the preliminary hearing testimony violated the
defendant’s right to confrontation because defense counsel was not permitted to cross-examine
the witness about her drug use and because the negative credibility finding, based on factors not
discernible from the admitted transcript, was not also admitted. Reversed.
Holan v. State, No. A-8802, 2007 WL 706741 (Alaska Ct. App. Mar. 7, 2007) (unreported)
At trial for sexual abuse of a minor, the court precluded the defense from cross-examining the
complainant minor about the reasons she had been grounded for a year by her mother and
stepfather, the defendant, at the time of the alleged incident. The complainant had been
grounded because of her drug use and for sneaking out at night, potentially to have sex with an
older man. The complainant’s mother would have testified to both, including to her and the
defendant’s efforts to notify the prosecutor’s office of potential statutory rape. The trial court
reasoned that allowing the jury to hear evidence that she was grounded was sufficient and there
was no need to go into the specifics about why.
The appellate court reversed, holding that the reasons were important. The court noted that
parents “frequently ground teenagers,” and without an explanation of the reasons why, the
defendant needed to establish why the grounding was unusual, so the jury could understand what
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would motivate the complainant to make false accusations. The reasons could have been the
basis for explaining how “the tension level in the family had reached a point where it was more
credible that [the complainant] would make a false accusation.” Without the jury knowing the
reasons for the grounding, the appellate court also found that it may have reasoned that the
defendant had grounded the complainant to make her more vulnerable to sexual abuse.
Davis v. State, 970 So.2d 164 (Miss. Ct. App. 2006)
At trial for murder, the defendant testified that he witnessed, but was not part of, the shooting of
the victim. The state offered two witnesses against him, one who claimed he saw the defendant
shoot the victim, and another who claimed he saw the defendant reach under his shirt and then
heard a gunshot. The second witness’s testimony directly contradicted his statement to the
police in which he claimed not to be present at the shooting. At trial, the prosecutor asked the
second witness if she had promised him leniency in exchange for his testimony and he replied
that she did not. The trial judge did not permit defense counsel to cross-examine the second
witness about his expectations regarding the prosecutor’s office and its ability to provide
leniency on his pending drug charges.
The appellate court held that the limitation prevented defense counsel from explaining to the jury
why the second witness might change his story: to ingratiate himself to the prosecutor’s office.
It also noted that the prosecution took advantage of this “handicap” by telling the jury in her
closing that the second witness was the defendant’s friend and had no reason to lie. Reversed.
People v. Robinson, 859 N.E.2d 232 (Ill. App. Ct. 2006)
At the defendant’s DUI trial, the court limited defense counsel’s cross-examination of the
arresting officer. The officer had testified before a grand jury, implying that he had seen the
defendant driving and that even if he had not, simply being in the vehicle while intoxicated
constituted drunk driving, “Technically . . . it is even an offense of drunk driving if you are
asleep behind the wheel, in the back seat of the car, keys in the front and engine off on private
property. But he was parked on the pavement. He had just finished driving.” The officer had
not witnessed the defendant driving.
The appellate court ruled that the defendant should have been able to confront the officer with
his misleading statement that the defendant “had just finished driving” because the statement
impeached the officer’s testimony that he did not see the defendant drive and supported the
defendant’s theory that “aggressiveness and exaggeration by [the] Officer . . . were the reasons
for the erroneous arrest.” The court noted that asking the officer to explain his prior, inconsistent
testimony provided the necessary foundation for impeaching the officer, even though he never
specifically read the exact question and answer from the grand jury testimony. The court did not
address harmlessness. Reversed.
State v. Gregrory, 893 A.2d 912 (Conn. App. Ct. 2006)
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At trial for sexual assault, the defendant sought to cross-examine the complainant about their
sexual history prior to the incident in question. He sought to ask her about role playing, during
which he played the part of burglar and rapist, and she played the part of the homeowner/victim.
On the night of the incident in question, the evidence showed that the defendant and the
complainant had an argument, at the end of which, he pinned the complainant to the bed,
stripped off her clothes, pried apart her legs, and vaginally penetrated her. The trial court denied
the defendant’s request related to the cross-examination, noting that the trial was about the
incident, not prior sexual activity. It did permit defense counsel to elicit her testimony about the
couple’s use of “leg locking” as a sexual position.
The appellate court reversed. It held that that the excluded cross-examination about their prior
sexual conduct could have showed that the complainant had consented and that the defendant
was merely playing his usual role. It held that the error “had [some] tendency to influence the
judgment of the jury,” and was, therefore not harmless for three reasons: (1) no other evidence
was presented about their role playing, (2) the complainant’s testimony was crucial because it
was the only evidence against the defendant, heightening the importance of the excluded crossexamination, and (3) the excluded cross-examination effectively precluded cross-examination on
consent, an element of the charged offense.
People v. Flowers, No. No. B179285, 2006 WL 598185 (Cal. Ct. App. March 13, 2006)
(unreported)
At trial for second degree murder, the court prohibited the defense from cross-examining a
witness about his probation status, both at the time of his testimony and at the time of the
statement he gave the police. The defense theory at trial was that he was present at the scene and
had fought with the victim, but that he did not shoot the victim. The witness provided the only
evidence, in the form of the defendant’s alleged confession, that the defendant was the shooter.
The witness was initially brought in for questioning, the police considered him a suspect. After
his statement, they changed his status to a witness.
The appellate court reversed. It held that while a witness’s probationary status may not be
relevant to their motive to lie in all cases, it was relevant in this case. Even though the witness
acknowledged that it was “best for him to make a statement,” the jury did not have the reason the
witness might have felt pressured to make a statement that wrongly inculpated the defendant: his
concerns about his probation being revoked. It further held that the trial court’s insistence that
the defense demonstrate that the witness had been threatened with revocation was in error. It
held that naming someone else as the shooter was [an] immediate and pressing” need for the
witness, and had the jury known about his probation status, it would have had a “significantly
different impression” of his credibility. Reversed.
People v. Valdez, No. G035070, 2006 WL 805786 (Cal. Ct. App. March 27, 2006) (unreported)
At trial for three counts of lewd acts against a child, the court precluded the defendant from
cross-examining the complainant child about the number of times she met with the child
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advocate therapist and whether the interviews were suggestive. The complainant had testified
that the therapist had told her what had happened, and the complainant’s version of events had
changed significantly from the time of her first interview with the therapist.
The appellate court held that the exclusion was error and that the jury would have had a
“significantly different impression” of the complainant’s credibility had the cross-examination
been permitted. It held that the state “psychotherapist privilege” had to fall to the defendant’s
right to confront witnesses. The court noted that children are particularly vulnerable to
suggestibility. Rejecting the state’s argument that the defense should have sought discovery of
the notes from the additional therapy sessions if it was interested in cross-examining the witness
about them, the court noted that the defense likely would not have been able to obtain them in
discovery. Reversed.
State v. Yang, 712 N.W.2d 400 (Wis. Ct. App. 2006)
At trial for first-degree sexual assault, the defendant’s theory was that his ex-wife convinced his
daughters to lie about the alleged assaults in an effort to obtain custody of them. He alleged that
she had told him that because he remarried, he was “going to be in trouble.” During crossexamination of the ex-wife, the defense asked whether the alleged threat had taken place. After
the ex-wife denied having the conversation, the trial court sustained the prosecution’s objections
to inquiring into whether she had made the alleged threat. The trial court reasoned (1) the threat
was irrelevant absent a showing that the ill will was “transferred” from the wife to the children,
(2) the defendant had successfully excluded evidence of his physical and verbal abuse of his
wife, and the testimony might open the door to that evidence, and (3) being able to ask the
question, despite her denial about the conversation ever happening, was tantamount to allowing
defense counsel to testify. The defendant testified but did not address the threat. The jury
acquitted him of assaulting one daughter, but not the other.
The appellate court held the defendant’s right to confrontation was “unduly truncated” because
the ex-wife’s and children’s credibility, as emphasized by the prosecutor, was important to the
case. The prosecutor even asked the jurors to ask themselves whether anyone had a motive to
lie. The court rejected each of the trial court’s reasons, finding that whether the ill will
“transferred” was a question for the jury and explaining that as long as counsel had a good faith
basis for asking the questions, he was entitled to do so. The court also noted that the defendant
may not have testified about the threat because he believed the judge’s ruling foreclosed the
possibility. The court also emphasized that the ex-wife’s repeated requests from the interpreter
suggest that the trial judge prematurely ended the defense’s inquiry. It was possible that the exwife simply did not understand the questions. Reversed.
State v. Strowder, No. 85792, 2006 WL 242510 (Ohio Ct. App. 2006)
The trial court prevented the defense from cross-examining one of the alleged coperpetrators,
who had made a deal with the prosecution, about the actual penalty he would have faced, absent
a deal with the prosecution. Instead, the defense was limited to cross-examining the witness
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about what he believed he faced. Absent a plea deal, he faced over twenty counts and up to over
one hundred years of prison. He testified that he believed he had faced ten or eleven counts.
The appellate court held that the limitation was error. The defense should have been able to
cross-examine the witness about “his actual understanding of what sentence he was facing.”
While the court’s formulation is somewhat confusing, presumably it meant that the defense
should have been able to ask the defendant about the actual potential sentence, not just his beliefs
about the potential sentence. Reversed.
State v. Jones, 713 N.W.2d 247 (Iowa Ct. App. 2006)
At trial for rape, the defense sought to cross-examine the complainant about her financial interest
in wrongfully accusing the defendant of rape. She had previously made three allegedly false
accusations, and the trial court prevented the defense from presenting evidence of those
accusations, citing the state’s Rape Shield law. The defense specifically sought to cross-examine
the complainant about statements she made to the person she was living with that she would be
able to use the restitution money to pay him money she owed. The defense theory was that the
encounter was consensual.
The appellate court reversed. It held that the financial incentive was relevant to show that the
complainant fabricated the lack of consent.
State v. Novak, 707 N.W.2d 580 (Wis. Ct. App. Nov. 2, 2005) (table decision)
At trial for obstructing an officer, the court barred the defendant from cross-examining one of the
state’s witnesses about a prior tape recorded statement that the prosecution conceded was
inconsistent to her testimony offered at trial. The witness testified that on the way home from a
high school football game, she and the defendant’s daughter told the defendant that they intended
to “toilet paper” the neighbor’s yard. She also testified that she and the defendant’s daughter
told the defendant about having done so the next morning. The police had questioned the
defendant about the incident, and she said she had no knowledge of their intentions or actions.
During cross-examination of the witness, trial counsel attempted to ask the witness about a tape
recorded statement she gave to the defendant’s daughter during math class. The trial court
barred the cross-examination, despite the prosecution’s concession that the prior statement was
inconsistent with her testimony. Because of authentication issues, defense counsel did not
request to play the tape during the cross-examination.
The appellate court reversed. It held that the limit on cross-examination denied the defendant her
“fundamental constitutional rights to present evidence and confront [the witness] by meaningful
cross-examination.” The court rejected the state’s argument that that because the recording may
have been made as part of the defendant’s daughter’s harassment to the witness, allowing the
cross-examination would require the jury to hear matters collateral to the litigation, finding that
the existence of a prior inconsistent statement on such a key issue to be “hardly collateral,” and
that the question of harassment was related to the weight of the prior statements, not the
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admissibility. The court also held that the defense need not prove that the tape was admissible
before cross-examining the witness about it.
Bordelon v. State, 908 So.2d 543 (Fla. Dist. Ct. App. 2005)
At trial for providing the police with a false identity while under arrest or lawfully detained, the
trial court limited the defense attorney’s cross-examination of the officer who allegedly received
a false identification. On direct examination, the officer did not address whether the defendant
had been detained. On cross-examination, the officer testified that the defendant was free to go
throughout the encounter. Thus, his testimony provided exonerating evidence. On redirect, the
prosecution led the officer to testify that, in fact, the defendant had been detained. On recross,
however, the trial court prohibited defense counsel from revisiting whether the defendant was
free to go throughout the encounter.
The appellate court reversed. It held that to prohibit recross-examination on the “newly elicited
[material] from the defendant’s chief accuser on redirect, that went to a central issue in a
criminal trial” and violated the Confrontation Clause.
State v. Stuart, 695 N.W.2d 259 (Wis. 2005)
At trial for first-degree murder, the court admitted the preliminary hearing testimony of the
defendant’s brother. At the preliminary hearing, the brother had testified that the defendant
confessed to killing the victim. At trial, the brother refused to testify. Crawford v. Washington,
541 U.S. 36 (2001), was decided while the defendant’s direct appeal was pending.
The Wisconsin Supreme Court reversed. It held that because the preliminary hearing (per state
statute) did not permit exploring the credibility or trustworthiness of the witness, the hearing did
not satisfy the Confrontation Clause’s requirement for cross-examination. At the preliminary
hearing, the defendant had attempted to, but was not permitted, to cross-examine the brother
about whether the charges pending against him might have influenced his testimony. The error
was not harmless despite four other witnesses’ testimony about the defendant having confessed
to them because of those witnesses’ long criminal history, the lack of physical evidence, and the
consistency of the other evidence in the case with the defendant’s theory of the case.
People v. Sampel, 16 A.2d 1023 (N.Y. App. Div. 2005)
At trial for criminal contempt, the trial court did not permit the defendant to present a witness to
testify that the complainant told the witness she had the defendant arrested in order to obtain the
defendant’s vehicle.
The appellate court reversed, holding, “The denial of the opportunity to contradict answers given
by a witness to show bias, interest or hostility” deprived the defendant of his confrontation
rights.
State v. Sabog, 117 P.3d 834 (Haw. Ct. App. 2005)
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At trial for assault and kidnapping, the court did not permit the defendant to cross-examine the
complainant about her drug use and pending criminal charges.
The appellate court reversed, holding that the former was admissible as relevant to the witness’s
ability to perceive and recall events. The latter was admissible as relevant evidence of bias. The
exclusion of the cross-examination on the topics violated the defendant’s right to confront the
witness.
People v. Golden, 140 P.3d 1 (Colo. App. 2005)
At trial for sexual assault, the defendant was not permitted to cross-examine the complainant
about an alleged sexual relationship with one of her roommates. The defendant was the
complainant’s landlord, and he sought to introduce evidence of a prior admission to involvement
in a romantic relationship to demonstrate her motive to lie about the assault.
The appellate court reversed. It held that evidence of the romantic relationship was relevant to
the complainant’s motive to lie as a prototypical form of bias. The error was not harmless
beyond a reasonable doubt because the complainant’s testimony was “critical” to the
prosecution’s case for a lack of consent.
Blunt v. United States, 863 A.2d 828 (D.C. 2004)
At trial for robbery, the defendant sought to cross-examine the state’s witness about charges
pending in Maryland. The charges had been designated as “Stet” which means they were not
being actively pursued, but could be brought at a later date. The trial judge prohibited the crossexamination, ruling that the charges were not offenses that could be used for impeachment. The
trial court did not address whether the status of the charges could have provided the witness with
bias.
The appellate court reversed. It held that even though the charges were not themselves
impeachable, their pending status did provide a potential source of bias for the witness. It
rejected the state’s argument that because the U.S. Attorney in D.C. had no influence over the
case in Maryland, even the source of bias was irrelevant. Instead, the court held that it was the
witness’s subjective expectation that provided the potential source of bias. Note the potential
relationship to Brady and witness expectations.
State v. Marcos, 102 P.3d 360 (Haw. 2004)
At trial, the court prohibited any inquiry into the complaining witness’s motive to fabricate an
injury that corroborated her earlier-alleged abuse. The motive in question was the paternity suit
the defendant brought.
The Hawaii Supreme Court ruled that the suit should have been revealed because it was a “fact
from which the jurors could appropriately draw inferences relating to the complainant’s motive
or bias.” Thus, the trial court erred when it prohibited “all inquiry into the alleged motive or bias
for faking injury.” Reversed.
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*Miller v. State, 98 P.3d 738 (Okla. Crim. App. 2004)
At trial the court admitted the confession that the nontestifying codefendant made to his friend.
When the friend testified about the confession, the defendant sought to cross-examine him about
whether when he was first interrogated by the police the police called him a liar, but the trial
court sustained the state’s hearsay objection to the question.
The appellate court reversed. It held that whether the police called him a liar was admissible to
show whether the friend had a motive to fabricate a story that would satisfy them, making it
admissible for a purpose other than for the truth of the matter asserted. The court concluded that
not allowing the question violated the defendant’s right to confrontation, compounding the other
Confrontation Clause error discussed infra.
Almond v. Commonwealth, No. 0273-03-2, 2004 WL 1607701 (Va. Ct App. July 20, 2004)
(unreported)
At trial, the defendant’s theory was that the child complainant fabricated the charges against him
in concert with her mother, both of whom were motivated by his refusal to terminate his parental
rights. The trial court, however, refused to permit him to ask the complainant whether her
mother told her that he had refused.
The appellate court reversed. It held that the answer to the question would not have been offered
for the truth, but to explain the complainant’s motive. The trial court’s restriction on the
defendant’s right to expose that motive violated his right to confront the complainant.
Other Limitations on Cross-Examination
U.S. Court of Appeals Cases
United States v. Kohring, 637 F.3d 895 (9th Cir. 2010)
In a decision reversing on a Brady claim, the court found prejudice based, inter alia, on the
defense’s inability to cross-examine the star witness on the material in question, thus
undermining his Confrontation Clause rights. The undisclosed information about the witness’s
criminal history would have cast doubt on his credibility.
Federal District Court Cases
United States v. Csolkovits, 794 F. Supp. 2d 764 (E.D. Mich. 2011)
Prior to trial for tax evasion, the government sought to avoid paying for the cost of having the
defendant, under the Mutual Assistance Treaty, have counsel in the Bahamas for depositions
noticed by the government. The government proposed having the defendant list questions for the
magistrate to ask during the deposition.
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The court held that the government would be required to pay for local Bahamian counsel to
represent the defendant during the depositions. It explained that limiting the defense to
submitting questions would be inadequate for confronting the witnesses.
State Court Cases
Coronado v. State, 351 S.W.3d 315 (Tex. Crim. App. 2011)
The trial court’s restriction, pursuant to statute, of the defendant to only asking the complaining
witness questions via interrogatories, which were asked by a third party and answered on
videotape at a remote location, violated the defendant’s right to face his accuser.
State v. Arnold, 939 N.E.2d 218 (Ohio Ct. App. 2010)
Prior to trial, the state violated its state-law-imposed duty to disclose the identity and address of a
particular witness without providing a justification for doing so. Because of the failure, the only
time defense counsel was able to interview the witness was immediately prior to her testimony.
The appellate court reversed. It held that the state’s failure to disclose the contact information of
the witness prevented defense counsel from having an adequate opportunity to cross examine the
witness.
State v. Contreras, 979 So.2d 896 (Fla. 2008)
The pre-trial discovery deposition of a witness who did not testify at trial was not sufficient to
satisfy the defendant’s right to confront that witness for several reasons. First, the defendant was
not present and was not entitled to be present at the deposition. Thus, the deposition was not the
“equivalent of cross examination as envisioned by Crawford.” Second, discovery depositions
are intended for the discovery of information, not to replace the opportunity to confront the
witness at trial. Because counsel would have different goals in a discovery deposition as
opposed to cross-examination at trial (or at a deposition designed to replace trial testimony), the
deposition was not an adequate substitute for cross-examination. Reversed.
State v. Lopez, 974 So.2d 340 (Fla. 2008)
The Florida Supreme Court ruled that pre-trial depositions taken pursuant to Florida Rule of
Criminal Procedure 3.220 do not provide a sufficient opportunity to cross-examine witnesses for
the purposes of the Confrontation Clause. It noted that 3.220 depositions only permit the
defendant to attend pursuant to a stipulation by both parties, thus violating the requirement of a
face-to-face, in-person confrontation. It also noted that goal of 3.220 hearings is not adversarial
in the same way in which in-court testimony is because they are frequently “taken for the
purpose of uncovering evidence or revealing other witnesses” and, therefore, is not the
“equivalent of significant cross-examination.”
State v. Noah, 162 P.3d 799 (Kan. 2007)
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At a preliminary hearing related to a sexual abuse charge, the complainant witness testified, but
broke down during cross-examination. After two recesses and a psychological evaluation of the
complainant, the trial court determined that the witness was unavailable to testify. At trial, the
court admitted the transcript of the preliminary hearing.
The appellate court held that the cross-examination at the preliminary hearing was not sufficient
because defense counsel had not had an opportunity to engage in cross-examination aimed at
exposing facts from which the jury could have drawn inferences about the witness’s reliability.
The court did not explain its reasoning, but it appears that it was the inability to ask her about the
facts of the crime, rather than the different purpose of a preliminary hearing, that led it to hold
the cross-examination insufficient. It noted that it was irrelevant whether the limitation was
because of the witness’s emotional state or some other reason; the cross-examination was not
sufficient. It also noted that while defense counsel’s questions in the hearing were “confusing
and unclear,” they did not “rise to the level of intentionally attempting to disqualify [the witness]
as a competent witness.” Court of Appeals affirmed.
People v. Lewis, No. H027950, 2007 WL 646151 (Cal. Ct. App. Mar. 5, 2007) (unreported)
At trial, the court admitted the preliminary hearing testimony of a nontestifying witness. The
appellate court noted that the “sole question is whether [the witness’s] exposure to questioning at
the preliminary hearing afforded defendant the ‘opportunity for cross-examination’ required by
the confrontation clause.” It held that it did not.
Even though the appellate court noted that it was “critical” that the witness offered only
exculpatory information at the preliminary hearing, the court’s reasoning should apply to other
witnesses who only testify at preliminary hearings (at least in California). It noted that the
purpose of a preliminary hearing is merely for the magistrate to “examine the case” for
“sufficient cause to believe the defendant was guilty.” It contrasted such a hearing with a
deposition or “some sort of proto-trial,” and explained that even though the defendant was
entitled to present evidence at a preliminary hearing, the magistrate is not a trier of fact and the
defendant’s motivation at such a hearing is merely to persuade the magistrate that any reasonable
suspicion presented by the prosecution is “too insubstantial to justify holding defendant for trial.”
It also explained that since defendants are no longer permitted to use preliminary hearings to
conduct discovery, that motive for conducting cross-examination no longer exists. Moreover,
the defense (and prosecution) inability to be fully prepared to confront a witness because of the
early stage at which a preliminary hearing takes place makes it an insufficient substitute for
cross-examination at trial. Reversed.
People v. Gardner, No. D047412, 2006 WL 3032497 (Cal. Ct. App. 2006) (unreported)
At a joint trial for possessing stolen property, the trial court, over the defendant’s objection,
admitted the statement of the testifying codefendant indicating that she knew the items in
question were stolen. The defendant, when objecting, requested that if the court was going to
admit the statements, it should also give an instruction limiting their application to the testifying
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codefendant. When the codefendant testified, the court neglected to give the requested
instruction, and the defense failed to request it at that time. The defense did, however, request
the instruction again when the court instructed the jury at the close of the evidence. The court
declined because it had not given the instruction previously.
The appellate court ruled that the trial court erred by failing to give the requested instruction.
The appellate court did not clarify at which instance the trial court erred, either at the time of the
testimony or at the close of the evidence. Even though the codefendant testified, the appellate
court reasoned that because the codefendant denied making the statements in question, she
rendered herself effectively unavailable for “full” cross-examination. Because the court
concluded the statements were not cumulative of other evidence, it held the failure to instruct the
jury was not harmless beyond a reasonable doubt.
Dickson v. State, 636 S.E.2d 721 (Ga. Ct. App. 2006)
Over a defense objection, the trial court admitted a nontestifying declarant’s recorded statement.
The declarant had previously testified at a bond hearing and died prior to trial. The trial court
thus found that the declarant was unavailable and that the defendant had been given a prior
opportunity to cross-examine him. The statement provided a first-hand account of the alleged
offenses.
The appellate court reversed. It held that for a prior opportunity cross-examine witnesses to
satisfy the requirements of the Confrontation Clause, “the prior hearing must have addressed
‘substantially the same issues’ as those presented at trial.” Because the bond hearing addressed
whether the defendant posed a flight risk, not murder and assault, the appellate court held that the
statements should not have been admitted.
People v. Yanez, No. E034761, 2005 WL 2995493 (Cal. Ct. App. Nov. 9, 2005) (unreported)
At trial, the court admitted the testimony of investigating officers recounting what the
complainant witness said to them. The trial court had held that the witness was unavailable.
The appellate court held that the lack of prior opportunity to cross-examine the witness rendered
the testimonial statements inadmissible. It rejected the state’s argument that the defense
interview of the witness, held two days prior to trial, was an adequate substitute for crossexamination. Reversed.
Anderson v. State, 833 N.E.2d 119 (Ind. Ct. App. 2005)
At trial for child molestation, the court admitted the statements of the complainant three-yearold. She had told her grandmother that the defendant “let me suck his dick.” She was then
interviewed by several members of law enforcement and relayed details of the defendant’s
alleged molestation. Prior to trial, the complainant was called to testify at a competency hearing.
At the hearing, she was “[un]able to broach the subject of [her] statements, as she would not
even answer questions regarding the color of a chair or her dress.”
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The appellate court reversed. It held that the statements made to law enforcement were
testimonial hearsay. It also held that although the pre-trial hearing satisfied a state statute’s
requirement for cross-examination, it did not meet the Confrontation Clause’s requirements
because the witness was “incapable of understanding the nature and obligation of an oath and
was therefore unavailable as a witness for trial.” For cross-examination to be sufficient, “a
witness unable to appreciate the obligation to testify truthfully cannot be effectively crossexamined for Crawford purposes.” Reversed.
People v. Osio, No. H026953, 2005 WL 1231402 (Cal. Ct. App. May 25, 2005) (unreported)
At trial for aggravated sexual assault of a child, the court admitted statements the nontestifying
complainant made, both in a recorded interview with a law enforcement officer and during the
preliminary hearing. The recorded statement was not offered at the preliminary hearing. Trial
counsel stipulated to the admission of the testimony, but Crawford v. Washington, 541 U.S. 36
(2001) was decided subsequent to trial.
The appellate court reversed, holding that the preliminary hearing did not “in the strictest sense”
provide the defendant an opportunity to cross-examine the complainant about the statements in
the recording because the statements were not offered in the hearing. It also held that the
preliminary hearing was inadequate because the preliminary hearing testimony only recounted
one incident, whereas seven incidents were at issue at trial. It rejected the state’s forfeiture
argument regarding the stipulation because Crawford had not been decided at the time of trial
and the statements were likely admissible under then-existing precedent.
People v. Fry, 92 P.3d 970 (Colo. 2004) (en banc)
At trial for second-degree murder the court admitted the preliminary hearing testimony of the
victim’s boyfriend. The boyfriend died before trial and did not testify.
The Colorado Supreme Court reaffirmed its decision holding that preliminary hearings in
Colorado do provide an adequate opportunity for cross-examination. It noted that preliminary
hearings are limited to determining whether there is probable cause and whether exists to believe
that a crime occurred. It also noted that the rules of evidence are relaxed at such hearings and
that the judge may not make credibility findings about a witness in such a hearing. Because the
witness was not subject to cross-examination, its admission violated the defendant’s
Confrontation Clause rights.
Improperly Admitted Co-Defendant Statements (Bruton3 Error)
U.S. Court of Appeals Cases
Adamson v. Cathel, 633 F.3d 248 (3d Cir. 2011)
3 Bruton v. United States, 391 U.S. 123 (1968)
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At trial for armed robbery, the prosecution impeached the defendant’s testimony by presenting
the testimony of his alleged accomplices. The accomplices did not testify at trial, and their
confessions inculpated the defendant. There was no limiting instruction given to the jury
regarding the confessions.
On direct appeal, the courts relied on Tennessee v. Street, 471 U.S. 409 (1985) to conclude that
introducing an accomplice confession was permissible if only used to impeach the defendant’s
credibility, not for the truth of the confession. In Street, there was a limiting instruction
regarding the confessions. In federal court, on appeal from denial of a writ for habeas corpus,
the court reversed and ruled that the lack of a limiting instruction made the introduction of the
confessions error: “[A] jury’s understanding of the distinction between substantive and
impeachment uses of inculpatory evidence cannot be taken for granted. An appropriate limiting
instruction is necessary.”
Pabon v. Mahoney, 654 F.3d 385 (3d Cir. 2011)
At trial for murder, the state offered the statement of a co-defendant. The co-defendant’s
statement was heavily redacted and was admitted as follows, “I know I didn’t shoot the girl who
got killed. Another should be arrested for this. He paid it off. He even gave me the Grand
National for helping.” The defendant appealed and, having lost, sought habeas relief, which was
denied. A certificate of appealability was also denied.
On appeal from the denial, the Court of Appeals reversed. It held that whether the statement
violated the defendant’s Confrontation Clause rights was “debatable” and that the case had to be
remanded for him to “develop” that claim.
Vazquez v. Wilson, 550 F.3d 270 (3d Cir. 2008)
At trial for murder, the trial court admitted a non-testifying co-defendant’s statement after
substituting “the other guy” for the defendant’s name in approximately twenty different places.
The statement said “the other guy” was the shooter. The defendant testified to the contrary, but
the gun had his fingerprints on it. The trial court instructed the jury not to consider the statement
as evidence against the defendant.
The defendant sought habeas corpus relief, and the Court of Appeals held that the redaction and
jury instruction to not consider the statement for purposes of establishing that the defendant was
the shooter were inadequate. It held whether considering the statement on its face or in the
context of other information presented at trial, it was error to admit it because it was “facially
obvious” to whom “the other guy” referred. The error was not harmless because the statement
was the only evidence at trial suggesting the defendant was the shooter. The defendant’s
fingerprints being on the gun was consistent with his non-shooter theory of the case that he had
disposed of, but not shot, the gun.
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United States v. Vega Molina, 407 F.3d 511 (1st Cir. 2005)
In a joint trial, a police officer who took one non-testifying co-defendant’s confession testified
about the confession. The trial court did not permit the officer to name the other defendants in
his testimony. Instead, he used “other individuals” or “another person” to refer to the other
defendants. During closing argument, the prosecutor asked the jury to infer that the “other
person” in the redaction was one of the defendants. The defendant offered a contemporaneous
objection, but did not ask for an instruction.
The Court of Appeals, reviewing de novo, found that the trial court should have sustained the
objection and that, in light of the prosecutor’s improper argument, the case law “unambiguously
requires the trial court to instruct the jury that an out-of-court confession may not be considered
evidence against the declarant’s co-defendants.” The court held that the government’s failure to
argue that the error was harmless waived the argument, but noted that “there is every reason to
doubt whether the outcome . . . would have been the same.”
United States v. Macias, 387 F.3d 509 (6th Cir. 2004)
At trial, the court played grand jury testimony of a testifying police officer misquoting a nontestifying co-defendant. The officer had testified that the co-defendant implicated the defendant.
The Court of Appeals held that the Federal District Court abused its discretion in failing to
declare a mistrial based on the admission. It held that it was of no moment that the statement
was introduced by the co-defendant, rather than the state. Either way, the defendant had no
opportunity to cross-examine the witness about it. It also held that the error was not harmless,
noting that the government’s case was otherwise entirely circumstantial. Reversed.