SCOTUS to Decide Whether to Fill in Crawford's Blank Spots

From Law.com: (The National Law Journal): "The outcomes of thousands of criminal cases hang in the balance while the U.S. Supreme Court decides whether to clarify when out-of-court accusations may be used in lieu of in-court testimony without violating defendants' Sixth Amendment right to confront witnesses.

Both the National District Attorneys Association's point man on the confrontation clause and the National Association of Criminal Defense Lawyers agree that the time is ripe for the court to satisfy its promise to fill in the blanks it intentionally left when it decided Crawford v. Washington, 541 U.S. 36 (2004).

Two petitions for certiorari that raise confrontation clause issues -- in the context of excited utterance exceptions to hearsay rules -- are pending before the court. Both Davis v. Washington, No. 05-5224, and Hammon v. Indiana, No. 05-5705, domestic violence cases, are listed for action by the court at its Oct. 28 conference. The court's decision on whether it will hear the cases is expected on Oct. 31.

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).

Crawford bars testimonial hearsay introduced by the prosecution unless the defense has an opportunity to question the person who made the statement, and that person is unavailable at the time of trial. With some exceptions, the court explicitly decided that it would 'leave for another day' a more specific definition of 'testimonial.'...

Barbara Bergman, president of the NACDL and a visiting professor at Washington's Catholic University of America Columbus School of Law, noted the "tremendous confusion in federal and state court decisions as to the meaning of 'testimonial' in the context of Crawford.

"Judges have struggled to see where particular cases fit -- like 911 calls -- that fall between the cracks of the concrete definitions of testimonial that the court laid out," Bergman said." Story... [Mark Godsey]

Here's a chart from The National Law Journal, of where the various courts currently stand:

Where courts stand
Admissibility of "excited utterances" that describe criminal activity to governmental agents under the confrontation clause.

Nontestimonial
Statement can be used at trial without the accuser or witness testifying: 1st and 8th circuits
Intermediate state courts in: Colorado Ohio Tennessee
It depends
Circumstances dictate whether or not the statement can be used at trial without the accuser or witness testifying: 2nd and 9th circuits
High courts in: Connecticut District of Columbia Indiana Maine Minnesota Nebraska North Carolina Washington
Intermediate state courts in: Alabama Alaska California Michigan New York Pennsylvania Texas Wisconsin
Testimonial
Statement cannot be used at trial without the accuser or witness testifying: 6th and 10th circuits
High courts in: Georgia Massachusetts
Intermediate state courts in: California Florida Hawaii Illinois Kentucky Ohio Texas  [Mark Godsey]