CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, March 10, 2020

Graham on The Confrontation Clause "Testimonial" v. "Nontestimonial" Dilemma

Michael H. Graham (University of Miami - School of Law) has posted Solution to Confrontation Clause 'Testimonial' v. 'Nontestimonial' Dilemma: A Roberts and Crawford Combined Approach (55 CRIM.L.BULL. 844 (2019)) on SSRN. Here is the abstract:
Crawford, in support of its rejection of the Robert’s reliability approach in favor of a “testimonial” “nontestimonial” dichotomy, states that the confrontation clause was incorporated in the Sixth amendment to address a principal evil — “the civil law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused,” i.e., “flagrant inquisitorial practices” producing “testimonial” statements” from nongovernmental declarants. The concept of “testimonial”, as initiated in Crawford and teased out in its progeny with respect to out-of-court statements of nongovernment declarants arising from “flagrant inquisitorial practices” and otherwise by nongovernmental declarant’s in Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011) and Ohio v. Clark, — U.S. —, 135 S.Ct. 2173, 192 L.Ed.2d 306 (2015), when the declarant is not and was not subject to cross-examination concerning the statement on behalf of the criminal defendant, is defined as follows.

An out-of-court statement is “testimonial” only if hearsay as defined in Fed.R.Evid. 801(a)-(d) and the statement was made by, or made to, or elicited by a police officer, other law enforcement personnel, or a judicial officer, if upon objective evaluation of the statements and actions of both the declarant and interrogator, if any, involved in the interrogation or statement creation, along with the informality or formality of the interrogation or statement creation, considered in light of the circumstance in which the interrogation or statement creation occurred, the court concludes that the primary purpose of the interrogation or statement creation was to establish or prove past events relevant to a later criminal prosecution.

Crawford opines that the “principal evil” to which the confrontation clause was directed is the civil-law mode of criminal procedure, i.e., the inquisitional approach, particularly its use of the results of ex parte examinations by governmental officials as evidence against the accused. Crawford continues that said “core meaning” of the confrontation clause demands that such “testimonial” statements of a nongovernmental declarant “who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination” be denied admission.

With respect to statements by governmental employees, i.e., police officers, other government personnel, or a judicial officer, and as developed with respect to forensic laboratory reports in Melendez-Diaz v. Massachusetts, 557 U.S. 307, 129 S.Ct. 2527, 174 L.Ed.2d 319 (2009), Bullcoming v. New Mexico, — U.S. —, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011) and Williams v. Illinois, — U.S. —, 132 S.Ct. 2225, 185 L.Ed.2d 89 (2012) as reflected in the definition of “testimonial” presented above, when the “primary purpose” surrounding the creation of the statement “was to establish or prove past events relevant to a later criminal prosecution”, the statement is “testimonial”. With respect to all forensic laboratory reports, but clearly not all public records, Crawford, as interpreted in Melendez-Diaz, Bullcoming, and Williams, as applied throughout the nation, requires at a minimum the live testimony of a qualified expert witness to opine with respect to the subject matter of the forensic laboratory report.

Testimonial/nontestimonial and in particular its definition in terms of primary purpose has clearly been the most disappointing and disturbing misinterpretation of the confrontation clause emanating from Crawford. First, the primary purpose test as now applied considers all aspects of the interrogation or statement creation, i.e., the perspective of both the nongovernmental declarant and the government participant, even as to nonelicited statements which is always the case with respect to a 911 excited utterance call. In addition, the primary purpose test has simply no relationship at all to indicia of reliability and clearly encompasses statements completely devoid of the core concern of the confrontation clause as to “flagrant inquisitorial practices” by government agents once again illustrated by the 911 excited utterance call. Moreover, the primary purpose test excludes consideration of and in fact completely disregards the interests of the criminal defendant who presumably the Sixth Amendment confrontation clause was designed to favor by creating a right to confront an accuser. The primary purpose test defining testimonial/nontestimonial statements thus permits and precludes hearsay statements of an uncross-examined declarant against a criminal defendant under circumstances that have no relationship to either the core meaning of the confrontation clause, indicia of reliability, or relative harm to the accused.

The Crawford and progeny “testimonial” versus “nontestimonial” distinction does not address at all the hearsay risks associated with an out-of-court statement admitted for its truth against the criminal defendant made by a declarant not subject to cross-examination. In fact, Crawford and progeny clearly reject that a “reliability” component as part of the protection granted the accused by the confrontation clause when it grants a right “to be confronted with witnesses against him.” Not only is there no such cross-examination right with respect to “nontestimonial” out-of-court hearsay statements admitted for the truth, the confrontation clause as currently interpreted rejects out of hand Robert’s search for a firmly rooted or particularized guarantee of trustworthiness requirement.

A proper interpretation of the confrontation clause with respect to statements of a hearsay declarant not subject to cross-examination at trial must be buttressed upon the clear language of the Sixth Amendment that the confrontation clause is a right granted to the criminal defendant to be confronted with witness against him. The current “testimonial” vs. “nontestimonial” interpretation, as illustrated by a hypothetic in the article, utterly fails this test. A proper interpretation of the confrontation clause must also recognize that legitimacy of the concern expressed in Crawford when it referred to the “core meaning” of the confrontation clause, i.e., principle evil addressed by the confrontation clause is “the civil law mode of criminal procedure”, and particularly its use of ex parte examinations as evidence against the accused, i.e., “flagrant inquisitorial practices” producing “testimonial” statements from nongovernment declarants.

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