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Until this month, the use of hearsay in a criminal trial was governed by Ohio v. Roberts, a 1980 U.S. Supreme Court decision. Hearsay of an unavailable declarant would be admitted if the evidence fell within a “firmly rooted hearsay exception” or had “particularized guarantees of trustworthiness.” That two-pronged test was rejected, and a new, not yet fully defined, replacement was created March 8 by the Supreme Court in Crawford v. Washington. Crawford excludes “testimonial” hearsay that has not been subject to cross-examination. The facts of the case are as follows: Michael Crawford, accused of stabbing a man who had allegedly raped Crawford’s wife, claimed self-defense. At the same time, Crawford asserted the claim of spousal incompetence to prevent the prosecution from calling his wife as an adverse witness. The potential adversity of the wife’s testimony came from a single point: Although her statement to police shortly after the crime occurred largely corroborated her husband’s, it differed in one material point. Crawford maintained that he thought he saw something in the victim’s hand (a possible weapon); the wife told the police she saw nothing in the victim’s hand. Arguing that the wife’s interview with police was “reliable” hearsay, the Washington state prosecutor persuaded a judge to admit it. The lengthy interview, with the portion contradicting the husband’s claim of a possible weapon, was read to the jury and argued as “damning evidence” that “completely refutes [Crawford's] claim of self-defense.” The Crawford court repudiated the Roberts formulation for admitting hearsay of a non-testifying witness. Finding historical support for the proposition that the Confrontation Clause was designed to avoid trial by “testimonial” statements which had never been cross-examined, the court first reaffirmed that the Confrontation Clause applies not only to the right to cross-examine those witnesses who do appear, but also to the right to “confront” a non-testifying witness (the hearsay declarant unavailable for trial). “Accordingly, we once again reject the view that the Confrontation Clause applies of its own force only to in-court testimony. . . . Leaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices,” the court said. The second prong of Crawford identifies the “evil” the Confrontation Clause was meant to redress: “Ex parte examinations as evidence against the accused,” the court said. Illustrative examples given by the court of such statements are “ex parte in-court testimony or its functional equivalent; that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, . . . depositions . . . or confessions . . . [or] statements taken by police officers in the course of interrogations.” The Crawford court intended the term “interrogation” to be read liberally and to include any type of police interview re-duced into a statement form. From this the court set forth its new rule of exclusion — the presumptive inadmissibility of “testimonial” statements that were not cross-examined by the defendant. “The Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination. The text of the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts. Rather, the ‘right . . . to be confronted with the witnesses against him,’ Amdt. 6, is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding.” Thus, Roberts’ reliability test has been repudiated, with the sine qua non of admissibility being cross-examination of the hearsay declarant. Crawford explicitly leaves unanswered a critical inquiry — what hearsay is “non-testimonial” or otherwise admissible under Confrontation Clause analysis — but it does give some examples. Business records, co-conspirator statements and dying declarations are admissible even under this rigorous Confrontation Clause analysis. The court also intimated that it would accept other hearsay exceptions recognized at the time of the Confrontation Clause’s adoption — evidence of pedigree and family history, and various kinds of reputation evidence. And what of the commonly utilized “testimonial” hearsay exceptions — the excited utterance, the present sense impression, the statement made for purposes of medical treatment or diagnosis? Their continued admissibility in criminal cases is called into question, as the court questioned its prior, 1992, holding in White v. Illinois, admitting “spontaneous declarations” and recognizing such statements as “testimonial” in nature. Crawford does emphasize unavailability; if the declarant testifies in court, it appears that state evidentiary rules would be the only source of limitation on the admission of that witness’ own prior statements. Crawford will engender much litigation. In the meantime, “testimonial” hearsay should be viewed as presumptively inadmissible in criminal cases, and challenges to its admission must specifically raise the federal confrontation right.

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