Mixed Metaphor?: Ohio Court Finds No Confrontation Clause Problem Using Hybrid Roberts/Crawford Analysis

According to Ohio v. Roberts,

even if a declarant's hearsay statements are admissible against a defendant under an exception to the rule against hearsay, they run afoul of the Confrontation Clause if the declarant is not present for cross-examination at trial unless the State establishes two elements. First, the State must establish that the declarant is "unavailable." Second, it must prove that the statement "bears adequate indicia of reliability." The Court concluded that "[r]eliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception." If a statement does not fall within such an exception, "the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness."

In Thompson v. Warden, Warren Correctional Inst., 2014 WL 2515317 (S.D.Ohio 2014), Roberts has been overruled by Crawford v. Washington. In Crawford, 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. In other words, the Confrontation Clause is violated when testimony or testimonial hearsay is admitted against a defendant and he is not given the chance to cross-examine the declarant.

So, how does one explain the opinion in Thompson?

In Thompson, Michael Thompson brought a habeas corpus case pro se to obtain relief from his conviction for murder and having weapons under disability in the Hamilton County Common Pleas Court. Specifically, Thompson claimed, inter alia, that the trial court erred by allowing testimony concerning a statement that the dying victim made that he was "going to hit a lick." 

The court did not mention the hearsay exception for dying declarations, ostensibly because the statement did not concern the cause of what the victim believed to be his impending death. The court, however, did find that the victim's statement was a statement against interest because

Various online idiomatic dictionaries confirm that this phrase means make a lot of money quickly through illegal means. See www.urbandictionarv.com. www.internetslan2.com, and www.onlineslan2dictionarv.com.

So, that solves the hearsay level of the analysis, but what about the Confrontation Clause? According to the court,

Roberts has been overruled by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (holding that "[t]estimonial 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"). The Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant has a prior opportunity for cross-examination..." Crawford v. Washington, 541 U.S. 36, 53–54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). For example, statements of a mortally-wounded victim to police are admissible because they were made in the context where the primary purpose of the police interrogation was to enable police assistance to meet an ongoing emergency. Michigan v. Bryant, 562 U.S. ––––, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011).  

Statements of the deceased victim McCants to Angelo Dykes were not testimonial. Rather, McCants' statement to Dykes that he was "going to hit a lick" was a statement which exposed McCants to criminal liability. As the First District held, it was admissible under Ohio R. Evid. 804(B)(3) on that basis. The exception to the hearsay rule for statements against penal interest is a firmly rooted exception and therefore is also an exception to the bar of the Confrontation Clause. Vincent v. Seabold, 226 F.3d 681, 688 (6th Cir.2000), citing Gilliam v. Mitchell, 179 F.3d 990, 994 (6th Cir.1999) and Neuman v. Rivers, 125 F.3d 315, 319–320 (6th Cir.1997)....

Huh? The Thompson court notes that Roberts has been overruled by Crawford but then finds no Confrontation Clause problem by citing pre-Crawford precedent to support the proposition that the statement against hearsay exception is "firmly rooted." That's the legal equivalent of a mixed metaphor.

-CM