Nonconfrontational: Florida Appellate Court Finds Different Tests For Hearsay And Confrontation Clause Terms

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. Like Federal Rule of Evidence 804(a), section 90.804(1) of the Florida Statutes sets forth five situations in which a hearsay declarant is "unavailable" for hearsay purposes. And, like Federal Rule of Evidence 804(b)(1), section 90.804(2)(a) provides an exception to the rule against hearsay for

Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

So, do we determine if a declarant "unavailable" for Confrontation Clause purposes by using the hearsay test, and do we determine whether the defendant was previously able to cross-examine the declarant by using the "former testimony" test? According to the recent opinion of the District Court of Appeal of Florida, Fourth District, in Petit v. State, 2012 WL 1314153 (Fla.App. 4 Dist. 2012).

In  Petit, Lukens Petit was convicted of one count of felony murder, three counts of attempted felony murder, and one count of armed robbery. After he was convicted, Petit appealed, claiming, inter alia, that the trial court allowed by allowing for the admission of testimony from a bond hearing by Edder Joseph, one of Petit's alleged robbery victims. According to Petit, the prosecution failed to prove Joseph's unavailabilty and that he had an adequate opportunity to cross-examine Joseph at the bond hearing.

With regard to unavailability, Petit claimed that the prosecution failed to prove that Joseph was "unavailable" under any of the five definitions laid out in section 90.804(1). The court disagreed, finding that

Section 90.804(1)...defines "unavailability" of the declarant for the purpose of the hearsay exceptions. But the Florida Supreme Court has defined unavailability for Confrontation Clause purposes much more broadly than section 90.804(1): "In order for a witness to be unavailable for confrontation purposes, the State must make a good faith showing of attempting to secure the witness. This includes going to reasonable lengths to procure the witness."...Therefore, the only requirement here is that the state made a good faith effort to procure Joseph as a witness for the instant trial.

Similarly, with regard to cross-examination, Petit claimed that the prosecution failed that he had an opportunity and similar motive to develop the testimony of Joseph at the bind hearing as is required by section 90.804(2)(a). The court again disagreed, finding that Petit's argument was

a mischaracterization of the holding in Crawford. The Supreme Court has stated the cross-examination requirement in very general terms: "Our cases have thus remained faithful to the Framers' understanding: Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine."...Crawford does not require similarity of motive in the previous judicial proceeding or mention a "meaningful" opportunity for cross-examination.

-CM