EvidenceProf Blog

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

Friday, August 17, 2012

Nonconfrontational?: 11th Circuit Implies That Former Testimony Under Rule 804(b)(1) Can Violate Confrontation Clause

Federal Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay  for

Testimony that:

(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and

(B) is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

A prerequisite for such former testimony being admitted is that the declarant be "unavailable" for trial under Federal Rule of Evidence 804(a).

Meanwhile, 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.

Based upon my readings of Rule 804(b)(1) and Crawford, I don't see how the admission of former testimony under Rule 804(b)(1) could ever violate the Confrontation Clause. But the recent opinion of the Eleventh Circuit in United States v. Santos, 2012 WL 2913504 (11th Cir. 2012), seems to imply that it could.

In Santos, Armando Julio Santos Vasquez was convicted of conspiracy to commit health care fraud, health care fraud, and making false statements related to health care matters. At trial,

The government sought to prove that Santos, a registered nurse, while working for a Miami-based home health care agency was part of a conspiracy to fraudulently bill Medicare for medical services that were never provided. Specifically, the government contended that Santos prepared nursing progress notes which stated that he had visited and injected homebound patients, Klebe De La Cruz and Caridad Pizzorno, with insulin twice a day, seven days a week when in fact he did not. The government presented testimonial and documentary evidence to establish that neither De La Cruz nor Pizzorno was diabetic and both women testified that they did not receive any insulin injections as reported. De La Cruz also testified that she received $500 a month in cash in exchange for signing the Medicare forms. Santos testified on his own behalf that he injected the patients with insulin as indicated on the progress notes. Medicare paid the home health care agency $20,430 for De La Cruz and $54,010 for Pizzorno for the home health care services attested to by Santos.

On the eve of

Santos's trial, the government moved to introduce the video deposition testimony of Pizzorno, in lieu of her in-person testimony, and that had been taken pre-trial pursuant to Fed.R.Crim.P. 15. Pizzorno who was elderly, had been suffering from a terminal and incurable form of liver cancer, and was unable to travel from Ohio for the trial.

The district court denied Santos' motion to exclude the video deposition, and this ruling formed the basis for Santos' appeal. In addressing that appeal, the Eleventh Circuit first found no hearsay problem with the deposition, concluding that it satisfied the former testimony exception contained in Rule 804(b)(1). But the court then bypassed Santos' Confrontation Clause argument, determining that

We...need not decide whether the admission of the video deposition testimony violated Santos's Confrontation Clause rights because we conclude that such error, assuming it occurred, was harmless.

My first question is why the court even bothered to engage in a hearsay analysis if it was simply going to bypass the Confrontation Clause issue and find harmless error. My second question is how there could have been any Confrontatin Clause uncertainty after the Eleventh Circuit found that Rule 804(b)(1) was satisified. To reach the conclusion, the court found that Pizzorno was unavailable and that Santos had an opportunity and similar motive to develop Pizzorno's testimony during the deposition. Wasn't that clearly enough to satisfy the Confrontation Clause?



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