Court Watch

Hawai'i trial attorneys and appellate court attorneys


Wednesday, December 07, 2005

"Testimonial" Hearsay Eliminated in Criminal Trials

But exactly what is "testimonial" hearsay?

Crawford v. Washington, 541 U.S. 36 (2004), written by Justice Scalia, held the use at trial of out-of-court statements made to police by a defendant's wife violated his Sixth Amendment right to confront witnesses against him, even though it was deemed reliable hearsay because it corroborated other testimony and was a declaration against penal interest.

Richard D. Friedman, Professor of Law at the University of Michigan Law School, has a blog dedicated solely to Crawford:

This blog is devoted to reporting and commenting on developments related to Crawford v. Washington, 541 U.S. 36 (2004). Crawford transformed the doctrine of the Confrontation Clause, but it left many open questions that are, and will continue to be, the subject of a great deal of litigation . . .

It appears now, in criminal law, that a witness must be available for cross examination at the time that the witness gives "testimonial" evidence at trial and perhaps at other criminal proceedings such as sentencing. The meaning of "testimonial" evidence, and what proceedings it covers, is still unclear.

Crawford also may put in doubt non-testimonial hearsay exceptions contained in Article VIII of the Federal Rules of Evidence, unless they are "firmly rooted" in the common law of 200 years ago. This might include some exceptions in Rule 803 (witness available) and Rule 804 (witness unavailable).

Therefore, intra-family matters, recanting spouses, evidence from 911 calls that are recorded, and other everyday hearsay situations are now in a state of flux because the U.S. Supreme Court has changed its interpretation of the Confrontation Clause by dropping the "reliable" hearsay exceptions to "testimonial" evidence but leaving an unclear result. The implementation of the legal concept needs sharpening, according to certain appellate judges in Hawaii.

State v. Grace, No. 25-970 (ICA 2005) applied the new Crawford rule to a family argument that allegedly reached the point of an assault. Appellate Court Judge Lim noted that Crawford "radically reinterpreted" a criminal defendant's Sixth Amendment right to confront and cross examine witnesses by narrowing the use of hearsay exceptions. Judge Lim also noted:

Crawford leaves us in a bit of a quandary here, for . . . the Supreme Court did not attempt a comprehensive definition of the core term "testimonial."
Id. at 1374

Perhaps the federal courts will straighten this out before Hawaii's appellate courts spend too much time trying to interpret Justice Scalia's new rule.


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