EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, May 5, 2010

Looking For A Confrontation: Tenth Circuit Reverses District Court's Outdated Confrontation Clause Ruling

A criminal defendant has the right to be confronted with the witnesses against him under the Confrontation Clause of the Sixth Amendment. Thus, even if a hearsay statement made by an unavailable declarant qualifies for admission under an exception to the rule against hearsay, it still must be excluded if its admission would violate the defendant's right to confrontation. For years, the Supreme Court's opinion in Ohio v. Roberts, 448 U.S. 56 (1980), ruled the Confrontation Clause roost. Under Roberts, one of the key questions was whether the applicable hearsay exception was "firmly rooted." In essence, if it was, there was no Confrontation Clause problem; if it was not, there was a Confrontation Clause problem. That all changed, however, with the Supreme Court's 2004 opinion in Crawford v. Washington, 541 U.S. 36 (2004). In its recent opinion in United States v. Smalls, 2010 WL 1745123 (10th Cir. 2010), the Tenth Circuit finally took notice.

In Smalls, Paul Smalls was charged with murder, and the prosecution sought to convict him in part through incriminatory statements made by Glen Dell Cook to a confidential informant while he was incarcerated. These statements incriminated both Cook and Smalls in the murder, and the prosecution sought to admit these statements as statements against interest pursuant to Federal Rule of Evidence 804(b)(3).

The district court assumed Cook's statement was nontestimonial and, as such, the question of its admissibility against Defendant Smalls lay outside the Sixth Amendment's "'core concerns.'"...Nonetheless, the district court analyzed the admissibility of Cook's statement under the framework of the Supreme Court's Confrontation Clause jurisprudence as set forth in Ohio v. Roberts, 448 U.S. 56 (1980). The district court focused its analysis, consistent with Roberts, on the question whether Cook's statement fit "within a firmly rooted hearsay exception" or otherwise showed "particularized guarantees of trustworthiness."...Based on the foregoing, the district court held Cook's statement inculpating both himself and Defendant Smalls fell outside a firmly rooted exception to the hearsay rule.

Thereafter, the prosecution brought an interlocutory appeal to the Tenth Circuit, claiming that this ruling was erroneous. The Tenth Circuit agreed, noting that Ohio v. Roberts was supplanted by the Supreme Court's opinion in Crawford v. Washington, in which it found that that the Confrontation Clause 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 Tenth Circuit acknowledged that "[r]egrettably, [it] ha[d] been slow to come into compliance with the Court's controlling precedent," itself applying Ohio v. Roberts even after it had been supplanted. But it now correctly applied Crawford and found that Cook's statement was nontestimonial based upon the Supreme Court's subsequent opinion in Davis v. Washington, 547 U.S. 813, 825 (2006), in which it found that "statements from one prisoner to another" are "clearly nontestimonial." The Tenth Circuit thus reversed and remanded (and left it to the district court to determine which portions of Cook's statements qualified as statements against interest and which portions had to be excised).



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