Has anyone else read this case? Are "firmly rooted exceptions" still safe from a Confrontation Clause challenge? Will any police interrogations be testimonial, even roadside questions? What do you guys think?

Roadside questioning of the defendant (or any questioning of the defendant, for that matter) does not involve the Confrontation Clause because the defendant is always available to question himself. Statements made by a defendant, therefore, are not even hearsay. They are admissions of a party-opponent.

Nothing in Crawford suggests there is any change as to such admissions. It can be confusing because of the importation of the word "interrogation."

This probably is the final nail in the coffin for the State using a co-defendant's confession under 803(24) statement against interest.

Looks like it may erode some use of excited utterances in situations where an officer is questioning the declarant. It may set family violence prosecutions back ten years.

Other problems are also apparent, but are probably best discussed more privately. The defense bar here is already waving it around saying excited utterances are dead . . .

Are family violence cases doomed??? That seems to be the argument from defense attorney's, Or would the excited utterance and presence sence impression be long held exceptions. I think they are okay, the Court did not Through out 803 or 804

The key in Crawford seems to be the presence of some official interrogation as a substitute for cross-examination. In the classic excited utterance, the person is speaking because of an excited condition, not because of any questioning. I think the excited utterance is safe, so long as it is truly an excited utterance.

I think the firmly rooted stuff and reliability are no longer considerations. The question now is whether the comment was "testimonial" -- meaning "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."

Comments to police officers by victims and witnesses are almost always going to meet the definition of "testimonial".

There is nothing reasonably "testimonial" about a witness exclaiming something in the throes of an emotional moment. "He smacked me," when stated by a crying woman with a bruise on her face, does not strike me the same as the witness who later gives a written statement to a police officer.

I am curious to see if the Crawford case influences the appeal of the infamous Yogurt Shop murders in Austin. In those trials, the State introduced co-defendant confessions (being careful to exclude any reference to the defendant on trial). The confessions corroborated details significant in the case. What do you think?

On its face, nothing in Crawford seems to affect firmly-rooted hearsay exceptions. The Court addressed only out-of-court statements bearing "particularized guarantees of trustworthiness." Firmly-rooted exceptions have a substantial constitutional history and only Roberts has been overruled. Whether Crawford will lead courts to interpret the firmly-rooted exceptions more narrowly will have to be seen. I would have to agree that Rule 803(24),for which there is no federal counterpart, would appear to have virtually no utility now.

Ok, I think we're all on board with the fact that at least one of the primary concerns about the effect of this opinion is the possible (probable?) elimination of excited utterance testimony from law enforcement in family / domestic violence cases where the declarant (usually the victim) won't show up for court.


Am I bootstrapping too much here, or do I see a faint glimmer of hope in the opinion at the bottom of Page 37, end of Note 9? Scalia states that . . . "The Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted" (internal citation omitted).

So, if defendant gets on the stand and says "it happened THIS WAY," and we, as the State, have hearsay testimony from a witness that contradicts the defendant's testimony, a witness that is unavailable (and whose statement presumably meets one of our hallowed "firmly rooted" hearsay exceptions - excited utterance, present sense impression, statement against interest,etc - ), wouldn't we STILL be able to use THAT STATEMENT (even though its hearsay, and the declarant is not / was not subject to cross examination ) for impeachment purposes of the defendant's testimony?

John S., I disagree, I think the opinion addresses the "firmly rooted" H/S exceptions theory:

"As noted above, Roberts says that an unavailable witness's out-of-court statement may be admitted so long as it has adequate indicia of reliability--i.e., falls within a 'firmly rooted hearsay exception" or bears "particularized guarantees of trustworthiness.' 448 U.S., at 66, 100 S.Ct. 2531. Petitioner argues that this test strays from the original meaning of the Confrontation Clause and urges us to reconsider it."

John B., footnote 8 seems to make your excited utterance theory somewhat suspect:

"One case arguably in tension with the rule requiring a prior opportunity for cross-examination when the proffered statement is testimonial is White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992), which involved, inter alia, statements of a child victim to an investigating police officer admitted as spontaneous declarations. Id., at 349-351, 112 S.Ct. 736. It is questionable whether testimonial statements would ever have been admissible on that ground in 1791; to the extent the hearsay exception for spontaneous declarations existed at all, it required that the statements be made 'immediat[ely] upon the hurt received, and before [the declarant] had time to devise or contrive any thing for her own advantage.'"

The statements in White were made to a police officer 45 minutes after the crime. Whether a crying statement made seconds after a crime to a police officer would be ok seems like a guess at this point.

Also, I wonder whether this case will reach outcry statements.

David,

Thanks for the direct response! I must admit I was attempting to provoke a reply. The issue was just calling out for attention.

I agree with you that the Court may have indicated that it is reaching beyond the exception for particularized guarantees of trustworthiness (pgt). Nonetheless, the only issue before the Court, as it was before the lower courts, was pgt and not the firmly-rooted exceptions. Also, doesn't the restriction of the case to "testimonial evidence" serve to eliminate many of the firmly-rooted exceptions from its scope?

Has Fed. R. Evid 804(b)(3) been repealed? I think that Tex. R. Evid 803(24) is almost identical to the Fed R. Evid 804(b)(3). It is still in my Fed Civil Jud. Proc. and Rules 2003 book. It is strange that it is not mentioned in the opinion. It makes admissiblity of statements under 803(24) difficult, but I agree that statements made to police when not under interrogation are still admissible.

No. FRE 804(b)(3) has not been repealed. I should have been more precise in my post.

Just to catch out the tired, the federal and state rules were classified differently. Unavailability is required under the federal rule, but immaterial under the state rule.

[This message was edited by John Stride on 03-14-04 at .]

[This message was edited by John Stride on 03-14-04 at .]

[This message was edited by John Stride on 03-14-04 at .]

I don't know about anyone else, but the battle over Crawford is starting to get ugly in our courthouse. We're wheeling in one witness who is near death just to avoid confrontation issues, and we just had a judge suppress statements to the responding officer because the complainant had started to wind down a little bit on her 911 call, even though she still appeared to be crying and her statements to the officer weren't the product of questioning. This could severely impact the trial of a couple thousand misdemeanors and a couple hundred felonies just from our family violence unit.

Just so everyone knows what's being discussed

Crawford v. Washington

On the bright side, John, sounds to me like you have a great chance to take a case to the US Supreme Court.

quote:

---

Originally posted by John Bradley:
On the bright side, John, sounds to me like you have a great chance to take a case to the US Supreme Court.

---

I don't mind the occaisional trip to Austin to argue in the CCA, but, after reading the argument transcript in Crawford, I only want to go to Washington as a tourist.

I think they also reject the "firmly rooted exception" theory as a way to get around confrontation problems with the following discussion:

"Several [hearsay exceptions] had become well established by 1791. See 3 Wigmore � 1397, at 101; Brief for United States as Amicus Curiae 13, n. 5. But there is scant evidence that exceptions were invoked to admit testimonial statements against the accused in a criminal case. n.6"

In footnote six they go on to wonder whether a dying declaration might be exempt (as a sui generis case) from confrontation clause problems even if the declaration is testimonial.

One thing I find interesting is the court's discussion of a "objective witness" standard for whether a statement might be considered testimonial. Crawford, slip op. at 16. This was also the subject of extensive discussion in the Crawford oral arguments. I think we have a great argument that persons in the throes of excitement from having witnessed a crime or having been the victims of a crime will not fall under such a standard, unlike Crawford's wife, who was giving a formal, custodial statement.

[This message was edited by John Rolater on 04-15-04 at .]