Saturday, February 23, 2008
Bright Line, Big City: Court Of Appeals Of New York Eschews Bright Line Test For Confrontation Clause Cases
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. The most difficult question in this analysis is the question of when hearsay is "testimonial," and the Supreme Court's opinion in Crawford did not answer it, instead, setting forth several proposed formulations.
Nonetheless, prior to the Supreme Court's opinion in Davis v. Washington, 547 U.S. 813 (2006), "[t]he circuits...concluded that the determinative factor common to all the proposed formulations set forth by the Crawford court [wa]s whether the statement was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial." Guilbeau v. Cain, 2007 WL 2478888 at *10 (W.D. La. 2007). In Davis, the Supreme Court ushered in no new law, but it seemed to emphasize that "context matters for Confrontation Clause purposes." See People v. Rawlins, 2008 WL 423397 (N.Y. 2008). In the wake of Davis, some courts have continued to apply a bright line test under which statements are "testimonial" whenever they are made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial. See id. Other courts, however, have eschewed this approach in the wake of Davis in favor of a more fact sensitive inquiry. See id.
One such court is the Court of Appeals of New York (the equivalent of most states' supreme courts), based upon its opinion in People v. Rawlins, 2008 WL 423397 (N.Y. 2008). Rawlins involved convicted defendants claiming that the judges in their cases improperly admitted DNA and latent fingerprint comparison reports prepared by nontestifying experts despite the fact that they were "testimonial." In Rawlins, the court concluded that in Confrontation Clause cases, "facts and context are essential. The question of testimoniality requires consideration of multiple factors, not all of equal import in every case. And while it is impossible to provide an exhaustive list of factors that may enter into the mix, two play an especially important role in this determination: first, whether the statement was prepared in a manner resembling ex parte examination and second, whether the statement accuses defendant of criminal wrongdoing. The purpose of making or generating the statement, and the declarant's motive for doing so, inform these two interrelated touchstones." Id.
The Court of Appeals then indicated that "[i]n the context of scientific tests, such as DNA analysis, many state and federal courts have considered the question presented, and little consensus has emerged." Id. Based upon its fact-sensitive analysis, however, the court concluded that the DNA and latent fingerprint comparison reports were "testimonial," although it concluded that their admission was harmless beyond a reasonable doubt based upon siginifcant other evidence of each of the defendants' guilt.
I'm generally not a fan of bright line tests, which would usually lead me to approve of the more fact sensitive inquiry adopted by the Court of Appeals of New York. At the same time, the "inquiry" adopted by the court seems so amorphous that litigants will likely have no idea whether statements will be determined "testimonial" in any particular case. Meanwile, the bright line test seems to produce somewhat more predictable results, but fails to account for the unique facts of each case. Which means that what I guess that I'm saying is that current Confrontation Clause analysis is a mess, with courts still struggling to create a workable approach in the wake of Crawford.