The National Pulse

Hearsay, Gone Tomorrow

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The nation’s criminal courts may have been flustered by the U.S. Supreme Court’s June ruling casting doubt on judicial sentencing, but judges across the country had already been struggling to cope with an earlier decision barring certain hearsay evidence.

In fact, criminal law experts are calling Crawford v. Washington, No. 02-9410, decided in March, one of the most significant rulings of the last quarter-century.

As of this summer, courts cited Crawford in more than 200 written decisions. Many lawyers think the case will come into play in virtually every trial of a criminal case. And, they say, it’s already changed how judges analyze whether to admit hearsay evidence.

“There is no doubt that this term the Supreme Court has upended trials in the Crawford case,” says Southwest­ern University law professor Myrna Raeder, a former chair of the ABA’s Criminal Justice Section.

Crawford held that “testimonial” evidence must be sub­­jected to cross-examination for it to be admitted against criminal defendants. Specifically, wrote Justice Antonin Scalia for a 7-2 majority, the Sixth Amendment’s confron­tation clause requires that defendants be allowed to examine testimony against them.

“Where testimonial evidence is at issue,” Scalia wrote, “the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.”

In so doing, the court overruled the touchstone 1980 case, Ohio v. Roberts, 448 U.S. 56, which held hearsay was admissible as long as it was reliable.

“Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty,” wrote Scalia.

The holding is significant, says Raeder, because it “decouples” statutory rules of evidence from the confrontation clause. “The mere fact that you meet this exception,” she says, “doesn’t tell you whether you meet the confron­tation clause.”

As a result, judges may no longer admit out-of-court statements just because they might fit into a statutory hearsay exception. Instead, courts must figure out wheth­er the statement is testimonial. If so, then it’s not admissible unless the person who made the statement can be cross-examined in court.

“Every time we now have hearsay introduced at trial, without the declarant present, the court has to revisit this issue of whether the confrontation clause is violated,” says Raeder.

Crawford also halts a trend toward admitting more and more out-of-court statements, says Quinnipiac University law professor Elizabeth Phillips Marsh, chair of the Rules of Criminal Procedure and Evidence Com­mittee of the Criminal Justice Section. It’s clear that “the court is pursuing a new direction with hear­say,” she says.

In the 24 years between Roberts and Crawford, the rules of hearsay became increasingly elastic, allowing more and more out-of-court statements into evidence, says Marsh. “Very little,” she says, “was excluded because of confron­tation clause concerns after Roberts.”

For example, in addition to traditional exceptions to the hearsay rule, such as those for business records, about half the states also allowed any out-of-court reliable state­ments.


By far the biggest impact is likely to be in domestic violence and child abuse cases, where victims don’t always come to court.

In the post-O.J. Simpson era, many prosecutors went ahead with domestic violence cases, even without the complainants. In these situations, pros­ecutors sometimes proved the charges by admitting 911 calls or police testimony based on interviews with victims.

Some prosecutors went ahead with domestic violence cases without the victim because they thought the victim had been intimidated into failing to appear.

In some jurisdictions, the fallout has already started. In Dallas, for example, as many as a dozen cases a day are be­ing dismissed because the women aren’t coming to court to testify. In the past, the police officer’s testimony about what the woman said at the scene would have sufficed, according to a July article in the Dallas Morning News.

Wendy Murphy, a Boston-based former prosecutor and well-known victims rights advocate, predicts that some prosecutors will take a more aggressive stance with reluctant complainants by making them come to court. “It will force more victims to testify,” she says.

With child abuse cases, prosecutors in many states used to play videotapes of young children’s interviews with counselors into evidence, rather than bring the children into court. Victor Vieth, director of the Alexandria, Va.-based American Prosecutors Research Institute’s Nation­al Child Protection Training Center, says this tended to happen in cases in which the children were too young to testify under oath.

Now, those convictions are likely to be overturned. In fact, this has already begun. In Maryland, for example, a state appellate court reversed the conviction and ordered a new trial for Michael Conway Snow­den, who was convicted of abusing three children—an 8-year-old and two 10-year-olds—based on the testimony of a social worker.

“The child abuse cases that will be impacted by Craw­ford are those involving preschool-aged children or severe-­ ly mentally retarded victims who are declared incompe­tent to testify,” says Vieth. “Without in-court, under-oath testimony, Crawford will exclude many child hearsay state­ments.” Already, he says, “A lot of prosecutors have just thrown in the towel.”


It might be too soon to know the long-term effects because courts are still sorting out the meaning of the word “testimonial.” Scalia didn’t define the term, but offered several possibilities. One was a broad definition proposed by the National Association of Criminal Defense Lawyers in an amicus brief. It defines testimonial as “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”

But it’s also possible that appellate courts will interpret the term more narrowly, limiting it to more formal statements such as affidavits or confessions given at a police precinct.

For now, judges are reaching for dictionaries and coming to their own conclusions about the word. Phylis Skloot Bamberger, a trial judge in Bronx County, N.Y., excluded evidence of a 911 call made by an eyewitness to a shooting in People v. Cortes, 2004 N.Y. Slip Op. 24185. Bamber­ger found that because the caller was interrogated on the phone, the content of the call was testimonial.

“The 911 call reporting a crime preserved on tape,” she wrote in the May ruling, “is the modern equiv­alent, made possible by technology, to the depositions taken by magistrates,” a reference to the testimonial scheme borrowed from early English law, and recited by Scalia in Crawford.

But another Bronx judge, Ethan Greenberg, came to the opposite conclusion in a March domestic violence case. “The 911 call, usually a hurried and panicked conversation between an injured victim and a police telephone operator, is simply not equivalent to a formal pretrial examination by a justice of the peace in Reformation England. If anything, it is the electronically augment­ed equivalent of a loud cry for help,” wrote Greenberg in People v. Moscat, 777 N.Y.S.2d 875.

Raeder predicts some tri­al judges will continue to take a conservative view, at least until the appellate courts define “testimonial.” “That’s going to take several years to sort out,” she says.

In the meantime, prosecutors and defense lawyers are planning their next steps.

“Training around this issue was immediate,” says Mur­phy. That training included instructing officers to take notes of a victim’s demeanor at the scene—such as, “she was screaming, she was crying”—to prove that the statement was an excited utterance and not the product of interrogation. Vieth says prosecutors are also planning to argue that defendants can forfeit their confrontation rights. He says that children who have been abused sometimes can’t testify because they’ve been traumatized by the abuse; in such cases, he argues, courts can find that defendants waived their rights to confront the children in court.

Defense lawyers, also, are studying strategies. Joshua Dratel, co-chair of the National Association of Criminal Defense Lawyers committee on military tribunals and terrorism, says some defense lawyers had all but given up objecting to hearsay on Sixth Amendment grounds, or even raising the issue on appeal.

The defense bar is also concerned that practitioners don’t realize just how significant the case might be. It’s “so subtle that even a lot of defense lawyers aren’t going to catch it,” says NACDL treasurer John Wesley Hall Jr.

“Now, it’s incumbent upon every defense lawyer to raise the Crawford decision to every hearsay objection,” he says, adding that lawyers should say the words “confrontation clause” when making their objections. “Every lawyer who doesn’t is ineffective.”

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