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Since the U.S. Supreme Court did away last March with certain kinds of hearsay exceptions in criminal cases in its landmark Crawford ruling, prosecutors have scrambled to limit the opinion’s scope. They’ve got their work cut out for them. Prosecutions in spousal, child and elder abuse cases have been affected when alleged victims don’t testify because they’ve changed their mind about prosecuting or because they’re too young or infirm. Admission of tapes of 911 calls is no longer routine. And some alleged terrorism prosecutions may attempt to rely, at least in part, on the kind of hearsay that the Supreme Court specifically forbade in Crawford v. Washington, 541 U.S. 36 (2004), because they flew in the face of the confrontation clause. Before Crawford, any hearsay could come in, even when a witness did not testify, if the hearsay exception was firmly rooted and traditional, and if a judge found the statement to be reliable and trustworthy in the circumstances in which it was made. Ohio v. Roberts, 448 U.S. 56 (1989). But the majority opinion in Crawford bars testimonial hearsay introduced by the prosecution unless the defense had an opportunity to question the person who made the statement, and the person is unavailable at the time of trial. Exactly how the court defines “testimonial” it decided to “leave for another day.” The court did make clear that statements obtained with government involvement with an eye toward prosecution were testimonial and therefore inadmissible. That includes such things as custodial statements and prior testimony that a defendant did not have the opportunity to cross-examine. More than 600 reported cases already raise these kind of issues. Since Crawford, tapes of 911 calls are no longer being routinely admitted under the excited-utterance exception to the hearsay rule, asserted Deirdre Bialo-Padin, chief of the district attorney’s domestic violence bureau in Brooklyn, N.Y. “Some judges are being very conservative,” she said. Admissibility test Loosely, the test for admissibility of these tapes under Crawford is whether the caller realized that the statement would later be used by prosecutors. “How on earth can you tell whether someone is anticipating whether it’s going to be used in court?” said Bialo-Padin. In felony cases, there is usually plenty of other evidence, such as medical reports, visible injuries and witnesses, she said. In misdemeanors, though, that kind of evidence is often lacking and there is a greater need for hearsay. But Crawford has affected an in-progress domestic violence-related homicide trial in an unanticipated way. In People v. Diaz, No. 4735/2001 (Kings Co., N.Y., Sup. Ct.), the prosecution’s psychiatric expert was precluded from testifying because he had partly relied on statements the deceased had made to a grand jury, the police, doctors and others when she had allegedly been assaulted by the defendant on prior occasions. But Bialo-Padin said that she still hopes to get the testimony in because the expert is able to independently base his opinion on the statements of people available to testify. That argument succeeded in a robbery/homicide case, when a federal judge allowed the testimony of a medical examiner who had considered Crawford material, but could have reached the same conclusion without it. Howard v. Walker, No. 98-CV-6427Fe (W.D.N.Y). Richard Wintory, vice president for deputy prosecutors for the National District Attorneys Association and deputy county attorney for Pima County, Ariz., sees Crawford as a pro-prosecution case. “Some prosecutors are slashing their wrists because of the concern that statements are now going to be excluded when in fact they . . . are now admissible under statutes without any impediment imposed by the Sixth Amendment,” he asserted. Wintory said that states “ought to be adopting laws that define hearsay exceptions for nontestimonial statements for use in domestic violence and child abuse cases right now.” While Crawford, in dicta, does give states flexibility to develop their own nontestimonial hearsay laws, University of California, Davis School of Law Professor Edward J. Imwinkelried thinks the task is not as simple as Wintory portrays it. “What [Wintory] is saying is that if something isn’t testimonial, there are no [U.S.] constitutional restraints on its admissibility, and states are free to adopt whatever legislation they bloody well please to regulate the admission of that testimony,” said Imwinkelried, an evidence scholar and a regular columnist for The National Law Journal. But that would depend on the protections offered in individual state’s constitutions, he said. The Colorado Court of Appeals has found such a right in its state’s constitution. State v. Compan, No. 02CA1469 (Colo. Ct. App. May 2004). It ordered Colorado courts to “continue to determine whether the admission of nontestimonial hearsay will violate the defendant’s right of confrontation under the state constitution.” Certiorari was granted by the Colorado Supreme Court. No. 04SC422. So far no state has accepted the high court’s invitation to pass nontestimonial legislation. Wintory urges a tack to get hearsay admitted that Imwinkelried finds potentially troublesome. “Multidisciplinary interviews of victims are gravely jeopardized by Crawford,” Wintory said. “We have to get prosecutors and law enforcement people out of the mix and leave it to the social workers, child psychiatrists and medical doctors.” “The Supreme Court will not allow [ Crawford] to be eviscerated by transparent devices,” Imwinkelried said. A court would most likely ask whether the police and the district attorney had input into questions put to a child, for example, and also whether the focus was treatment or incriminating evidence, he said. Under military commission rules, any evidence of probative value can be admitted against enemy combatants being held at Guantanamo Bay who allegedly violated the law of war-hearsay or not, whether or not the declarant will testify, said Navy Lt. Susan McGarvey, a spokeswoman for the commission. No live witnesses need be produced, she said. “It is up to the panel to determine what weight, if any, to give particular evidence.” But that doesn’t satisfy due process, said New York lawyer Joshua Dratel, lead counsel for David Hicks, an Australian citizen taken into custody in Afghanistan and charged with, among other things, conspiracy to commit terrorism and war crimes. “We think they’re going to attempt to rely on statements from detainees they’ve interviewed,” Dratel said. “It’s not just a question of not being able to cross-examine witnesses-a clear violation of Crawford. But we won’t even be able to develop the circumstances under which the statements were obtained.”

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