I'm pretty sure the answer is no, but I have not read much of the opinions following Crawford lately, and without going too much into the facts, is there any situation, in a case with three confessing codefendants, where one defendant is being tried separately and is testifying, in which the substance of a non-testifying declarant's confession can be brought up during cross?

Any helpful cases appreciated.

Maybe at the testifying defendant's subsequent perjury trial?!

That's what I was unfortunately thinking.

Why can't you ask questions based on the facts revealed in the confession without going into it being a confession?

Such as:

- You didn't go into the library through the secret tunnel from the conservatory did you?
- You admitted to carrying the candle stick, but you didn't hit Mr. Body with it did you? Someone else must have done that, right?
- Professor Plum had the rope in the Billiard room, didn't he?
- Well if someone said he did, they'd have to be lying wouldn't they?
- Colonel Mustard hit Mr. Body with the pipe only after you came in the room with the candlestick and threated Mr. Body, didn't he?

And so forth. Why couldn't you use those facts that differ in the confessions as cross questions and couch them in terms and tone of voice as being more credible than the defendant's version of the facts. If each confession dumbs down the culpability of the individual defendants, is there a reason you can't cross reference the different facts through leading questions?

If so, clearly I need to go re-read the Crawford stuff.

You could try to get the confessing co-Def (or all 3 of them) to enter his plea before the trial and then use them to testify in your case in chief - or save them for rebuttal IF the def testifies.

I can e-mail you the latest APRI Crawford case outline/list, very helpful. Updated recently 2/15/06.

Please do.

philipray@co.potter.tx.us

quote:

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Originally posted by raythomas:
I can e-mail you the latest APRI Crawford case outline/list, very helpful. Updated recently 2/15/06.

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dagreg at justice.com

D claims that his Crawford rights were violated when the trial court admitted an out of court statement made by his wife, whom he killed. The statements made by the wife were made during a phone conversation TO THE DEFENDANT.

I already argue forfeiture by wrongdoing and that her statements aren't hearsay. I'm looking for any authority that Crawford simply doesn't apply if D is the one that elicited the statement in the first place. I mean, he could get up on the stand (5th Amendment notwithstanding) and explain the statements to the jury. Normally, another person's assertion of the 5th Am. trumps a confrontation clause claim, but here it is the defendant who has put himself in this position. Anyone have any thoughts on this issue?

Well, are they offered for the truth of the matter asserted? I was recently schooled by a well known poster about this exception to Crawford. What is the statement and what is it admitted for?

No, they are not offered for the truth of the matter asserted. I argue that already. But before we even get there, I would like to say that a defendant has no business asserting a confrontation clause objection to a statement that he himself elicited. It's almost like he's had a prior opportunity to cross. . . To say it a different way: if the right is meant to protect D against ex parte interrogation by police, and he IS the police, then what's his problem? Crawford isn't meant for this.

Surely you could argue that defendant, during the conversation, makes some admission as a party opponent (doesn't he confirm the truth of some fact you must prove?). If so, then the phone conversation is admissible because it is not hearsay. The conversation is relevant because of the defendant's adoption of those statements.

And, certainly the forfeiture by wrongdoing could be inferred from the facts related in the conversation.

I'm sure you've seen that a forfeiture argument got a lot harder to make after Giles.

I guess your he-elicited-the-comment argument would support a theory that the comment was not testimonial.

I like JB's idea of focusing on the defendant's part of the conversation.

A defendant may adopt a statement simply by not contradicting it. So, if a person screams over the phone, "You SOB, you almost killed me the other night!", and the defendant just laughs, a listener might well take from that nonverbal bit of communication that he was accepting the truth of the statement, adopting it, and merely refusing to care. The equivalent of, "So, what?"

If so, then the recording is admissible as a relevant admission by a party opponent.

We admit recorded phone calls all the time without putting on the person talking to the defendant. In jail phone calls, defendants make all sorts of admissions.

In addition, I'm not convinced that Giles made it all that harder to get a statement in by forfeiture by wrongdoing. The opinion left plenty of room for a judge to infer from the circumstances that the defendant got the witness out of the way to prevent that person from coming after him in a criminal case.

Would an objective witness reasonably believe that these statements would be available for later use at trial? Seems like it would be harder to show that objectively if it's the defendant himself eliciting the statements. Surely an objective witness could not reasonably believe that the defendant would be eliciting statements that incriminated him with an idea that the statements would be available for later use at trial.

Are these jail calls or something?

That's a good idea. The warnings would help, but I thought he was charged with her murder.

I dunno. If its a recorded jail call that just doesn't seem testimonial at all. It isn't an affidavit, deposition, the result of an interview, or a formalized written statement. Right? The objective test really applies to various things like interviews, such officers interrogating witnesses, 911 operators questioning victims. Here I go on a tangent again, probably.

How can it be testimonial if it's to the defendant? That definitely isn't a court proceeding or a police interrogation. Statements to private parties aren't testimonial.

I know. I don't see how it's testimonial, either.