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For an example of how the U.S. Supreme Court’s March 8 ruling in Crawford v. Washington is affecting Texas’ criminal-law jurisprudence, look no further than a recent appellate argument in Austin, Texas’ notorious yogurt shop murders case. Crawford is a significant Sixth Amendment-decision that forbids the admission of “testimonial evidence” by witnesses who are not made available for cross-examination by the defense at trial. Testimonial evidence generally has been considered material that could be introduced in a trial. Yet Crawford, written by Justice Antonin Scalia, left for “another day” a comprehensive definition of “testimonial evidence.” The lack of a definition is a problem that is plaguing trial and appellate courts across Texas. Two defendants convicted of capital murder for the 1991 slayings of four girls at a North Austin yogurt shop are using Crawford as ground for seeking reversal of their convictions. Robert Springsteen IV, who was convicted in 2001 and received a death sentence, has appealed the issue to the Texas Court of Criminal Appeals. And Michael Scott, who was convicted in 2002 and received a life sentence, has appealed the issue to Austin’s 3rd Court of Appeals. Travis County prosecutors introduced Springsteen’s statement in Scott’s trial, and visa versa, and neither Springsteen nor Scott appeared at each other’s trials because both exercised the Fifth Amendment right not to testify. Therefore, defense attorneys for both men are claiming that the state violated their clients’ rights under the confrontation clause of the Sixth Amendment. The confrontation clause requires that “the defendant charged with a crime [have] an opportunity to cross-examine the witnesses against him.” On June 10, Austin’s 3rd Court of Appeals considered Scott’s appeal, and got right to the pivotal questions in Crawford: Is Springsteen’s statement “testimonial,” and should it have been allowed in at Scott’s trial? Ken Law, chief justice of the 3rd Court, was curious about the implications of Springsteen’s statement being admitted in Scott’s capital murder trial. “Is that not implicitly against Mr. Scott … and therefore testimonial in nature? Where is the line drawn?” Law asked Travis County assistant district attorney Bryan Case. Attorneys on both sides of Scott’s case have differing opinions about whether the statement in question was testimonial. In an interview, Case says he believes Springsteen’s statement is not testimonial because he was not in police custody when he gave it. “ Crawford, on its face, says that police interrogations are testimonial,” Case says. But Case maintains that because Springsteen was not in custody when he was questioned, it was not implicit that his statements would be used in a criminal trial, so his statements are not testimonial. But Ariel Payan, an Austin solo who represents Scott, says in an interview that Springsteen’s statement is testimonial, and therefore not allowed under Crawford. “It’s essentially directly on point with Crawford,” Payan says. “Any statement given in the course of an investigation is testimonial.” EXCITED UTTERANCES Even though Crawford is a couple of months old, Texas appellate courts already have started reversing convictions because of the decision. In Brooks v. Texas, Dallas’ 5th Court of Appeals reversed the aggravated robbery conviction of Joseph Mickey Brooks because a codefendant’s statement was allowed at Brooks’ trial but Brooks was not allowed to cross-examine the defendant. And in Hale v. Texas, Fort Worth’s 2nd Court of Appeals reversed an aggravated sexual assault conviction of Shane Lee Hale, after the statement of a nontestifying codefendant was admitted in Hale’s trial — over Hale’s attorney’s objections for confrontation reasons. Gary Udashen, a criminal defense attorney and partner in Dallas’ Sorrels & Udashen, recently filed a similar Crawford appeal in the 5th Court in which a codefendant’s testimony was admitted against his client, yet there was no opportunity to confront that witness. Udashen expects a reversal. “Those are the easy ones,” Udashen says of Crawford appeals that involve a nontestifying co-defendant’s statements. “The more complicated ones are the outcry and the excited utterance cases.” Udashen is referring to Rule 803 (2) of the Texas Rules of Evidence, which allows a trial court to admit “excited utterance” statements as an exception to the hearsay rule that generally prevents a court from considering such testimony. According to the rule, an excited utterance is “a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Before Crawford, Texas state trial courts often allowed prosecutors to present “excited utterance” testimony from victims who either refused to testify or could not be located to testify. Several criminal lawyers say trial courts consider excited utterances to be reliable statements because they are made in the heat of the moment and can be admitted without giving the defendant an opportunity to cross-examine the witness. But Crawford could change courts’ views on excited utterances, the criminal lawyers say. For example, trial courts usually allow into evidence a victim’s call to 911 even if a victim doesn’t testify at trial. Now, whether such evidence is viewed as “testimonial” under Crawford will depend on what the victim says on the 911 tape, Udashen says. “If it’s a description of the offense, it’s going to be testimonial,” Udashen says. Another key question is whether Crawford also excludes excited utterance statements victims make to police officers. Several criminal defense lawyers believe that anything said to a police officer is “testimonial” under Crawford and can’t be entered as evidence. Several months ago, Keith Dean, judge of Dallas 265th District Court was presented with both of those common Crawford questions — whether a tape of a victim’s 911 call and her statements to police should be admitted in an aggravated assault case. Prosecutors wanted to introduce those statements into evidence because they could not locate the victim to testify, Dean says. Dean ruled that the 911 tape was admissible because the victim’s statements on the emergency tape were not testimonial. Dean says he believed the victim’s 911 statement was intended to get her help and keep her safe and was not necessarily intended to be used as part of an investigation. However, Dean ruled that the victim’s statements to police at the scene of the incident were not admissible and were not excited utterances. Dean believed too much time had passed between the 911 call and the time the victim spoke to a police officer for the latter to be considered an excited utterance. “It’s a classic example of how these cases may be handled in the future,” Dean says. Crawford is forcing appellate courts to examine out-of-court testimony in a completely different light, says Linda Thomas, chief justice of the 5th Court of Appeals. “I think the bottom line is the focus of the inquiry has totally changed,” Thomas says. “Before Crawford, the focus on the use of out-of-court statements was, “Are they so reliable that they are allowed in as evidence without the opportunity for cross examination?’ Now the focus has to be first a determination of, “Is this a testimonial statement or a non-testimonial statement?’” And that’s a difficult assignment for Texas trial and appellate courts, says Fred Moss, a criminal law professor at Southern Methodist University’s Dedman School of Law. “It’s going to be tough,” Moss says. “I think the Supreme Court is going to have to come forward and give some guidance. They’d rather come in and clarify than come in and retrace their steps.” FAMILY VIOLENCE While Crawford questions have been raised in criminal cases ranging from capital murder to sexual assaults, a key battleground on the issue is in family-violence cases, several criminal law experts say. Because victims of family violence often refuse to testify, prosecutors often seek alternative ways to prove an offense occurred by admitting into evidence excited utterance statements that do not allow cross-examination of the victim by the defense. The U.S. Supreme Court’s decision is forcing prosecutors working on family-violence cases to “put on their Crawford lenses” in every case in which a victim refuses to testify, says Cindy Dyer, chief prosecutor in the Dallas District Attorney’s Office’s Family Violence Division. Sometimes, questions about whether a victim’s statement is testimonial require pre-trial hearings before a trial court. “And if they are [testimonial], that is not a case that we’re not going to be able to go forward on,” Dyer says. “Some judges believe — apparently because the responding officer asked the question “What happened or what’s going on?’ — that, that makes the answer somehow subject to Crawford,” Dyer says. “Other judges believe that is not testimonial because that does not rise to the level of police interrogation.” Sometimes, family-violence victims refuse to testify because they are still involved in relationships with their abusers, says Sean Colston, chief of the Family Violence Section for the Tarrant County District Attorney’s Office. In Fort Worth, prosecutors are gearing up to subpoena victims in family-violence cases, regardless of whether they want to testify, Colston says. “We’re going to put on our victims so that the defense will be able to cross-examine them and talk to the juries about the reasons why the victims will change their stories,” Colston says. “If we’re going to have a victim who’s going to recant, and we don’t believe that recantation, we’re going to have the jurors see what we see in these type of situations,” Colston says. David Finn, a partner in Dallas’ Milner & Finn and a former family-violence court judge, says Crawford has leveled the playing field for the defense in family-violence cases. “As a judge, I applied the law, and I allowed in [excited utterance statements], but it troubled me,” Finn says. “You could see cases where excited utterance from a case law standpoint was being misused.” Under the belief that a police officer usually is a more predictable witness than a family-violence victim, sometimes prosecutors rather would have a police officer testify about a statement than have the victim testify in person, Finn says. Jamie Cummings, judge of Tarrant County’s County Criminal Court No. 5 which handles all the county’s misdemeanor family-violence cases, says she’s already told prosecutors that Crawford will make her more cautious about admitting victims’ excited utterance statements. Aside from 911 tapes and police officer questions, there still may be other situations in which Crawford questions pop up that courts and lawyers haven’t thought of yet, Cummings says. “I think we’ve just touched the surface,” Cummings says. “I think we’re going to be dealing with Crawford for years.” Senior reporter Mary Alice Robbins contributed to this report.

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