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| Confronting the
Confrontation Clause The right to confront one’s accuser has a venerable history in constitutional law but retains its potential to stir controversy. Recent rulings of both federal and state courts in Minnesota trace the continuing evolution of courts’ understanding of the provision. by Marshall H. Tanick Embedded in the 6th Amendment, the clause has aroused
significant concern and controversy within the past year as a result
of a major ruling of the U.S. Supreme Court and a series of decisions
this spring by the Minnesota Supreme Court and Court of Appeals, as
well the 8th Circuit Court of Appeals.
These recent rulings give new meaning to an age-old legal concept. Confronting Crawford The Confrontation Clause is one of several guarantees in the 6th Amendment to the U.S. Constitution for those accused of criminal offenses. It assures a criminal defendant of the right to be “confronted with the witnesses against him.” Like a number of federal constitutional rights, the clause has a parallel in the Minnesota Constitution: Article I, §6 of the State Constitution contains an identically worded confrontation clause. The confrontation concept was hardly a novel one when adopted by the Framers. It derives from old English law, which itself dates back to Roman times.1 The concept took root in 17th century England and was, like many other English legal practices, transported to the United States, first in colonial times and then incorporated as part of the nascent American legal system. Over the years, the Confrontation Clause has been invoked in a number of different circumstances. The provision has been most problematic in criminal prosecutions when authorities have sought to use out-of-court statements, traditionally barred as hearsay, and defendants have asserted that the introduction of such testimony, without affording them the opportunity for face-to-face encounters with witnesses and cross-examination of them, offends the Confrontation Clause. But defense pleas generally have been unsuccessful, as exemplified by the ruling of the U.S. Supreme Court a generation ago in Ohio v. Roberts, 448 U.S. 56 (1980), which admitted at trial testimony from a preliminary hearing of a witness, who was unavailable at the trial but had been cross-examined by the defense at the pretrial proceeding. The clause, however, has been revitalized in cases involving testimony used to convict criminal defendants without allowing for any cross-examination. The watershed case decided by the U.S. Supreme Court was Crawford v. Washington, 541 U.S. 36 (2004), in which “testimonial” hearsay was forbidden in criminal prosecutions. In Crawford, a Washington man convicted of attempted murder and assault appealed on the basis that his wife’s statement to police, that refuted his main defense, had been improperly admitted in testimony. The wife, when interrogated by the police, indicated that the attack was not done in self-defense, as her husband asserted. Invoking marital privilege under state law, the wife did not testify at trial, which precluded cross-examination and instigated the Confrontation Clause claim. Departing from the reasoning of Roberts, which rested on the “reliability” of the out-of-court testimony, the Court unanimously held the wife’s statement inadmissible, reversed the conviction, and remanded the case. In a decision written by Justice Antonin Scalia, the Court notes that the two main concerns of the Confrontation Clause are that a witness is “unavailable to testify” and there was no “prior opportunity for cross-examination.” Rather than “simply re-weighing” the factors of reliability that underlay the Roberts ruling, the Court abrogated the “reliability” rationale of the Roberts case. It deemed the witness testimony inadmissible as a matter of law because it constituted a “testimonial statement” devoid of “opportunity to cross-examine.” While “not all hearsay” is condemned under the Confrontation Clause, statements that are made by an “unavailable” witness, who was not subject to prior cross-examination, are inadmissible if the statement is “testimonial” in nature. The justices did not define the term “testimonial”; they did, however, identify several features in the case that reflected the proscribed “testimonial” evidence. These included the making of a statement “while in police custody” by the wife, who was “a potential suspect,” and was subjected to “leading questions.” The ruling represented a ringing endorsement of the opportunity
for cross-examination, although somewhat muffled by the ambiguity
of the Confrontation Clause. Crawford left a number of questions unresolved,
which have been addressed in cases decided this year by federal and
state courts in Minnesota. Dying Declaration The admission of a dying declaration in a murder trial did not offend the Confrontation Clause in State v. Martin, 695 N.W. 2d 578 (Minn. May 12, 2005). The case arose when two men intruded into a home in Anoka County and shot and stabbed one of the occupants who, gasping for breath, bleeding profusely, and appearing to be in great pain urged the other occupant “Call the police” and uttered the first names of the two assailants. The police soon arrived and the victim was taken to the hospital, where he died shortly after arriving. At trial, his exclamations were admitted, without objection, and an Anoka County District Court jury convicted one of those identified by the decedent of first-degree murder and other offenses. The state Supreme Court upheld the conviction, rejecting a claim of error in allowing the decedent’s statement. But it remanded the case to make a record of communications between the judge and jury that occurred during the jury deliberations. On the critical issue of the admissibility of the victim’s identification of the assailant, the Court first considered whether the statement constituted a “dying declaration,” which would be admissible as an “exception to the hearsay rule.” Rule 804(b)(2) of the Minnesota Rules of Evidence, similar to its federal counterpart, permits admission of statements made by a declarant who is under a “belief of impending death.” Under prior case law, for a dying declaration to be admissible, there must be a showing of “something more than simply that the declarant is aware of the seriousness of [the] injuries and the possibility of death.” Because such an out-of-court unsworn statement is admissible only if there is a “settled hopeless expectation” that death is “impending,” it is necessary to consider the mental state of the person making the declaration, which can be proven through direct evidence or “may be inferred from the surrounding circumstances.” Although the victim was standing and walking at the time he made the statement, the evidence of his injuries indicated that he “recognized the severity of his wounds and believed that death was imminent.” Under the circumstances, his statement constituted a “dying declaration” within the meaning of the hearsay exception. Application of the hearsay exception necessitated consideration whether allowing that testimony constituted a violation of the defendant’s 6th Amendment right to confront his witness under Crawford. While not “unsympathetic to the uncertainty” due to the lack of “comprehensive definition” of the term “testimonial” in Crawford, the Court did not deem it necessary to determine whether the victim’s statement was “testimonial.” Rather, the Court found the Confrontation Clause embraced a “well-rooted … [hearsay] exception for dying declarations.” The admissibility of dying declarations at common law, was “not repudiated” by the 6th Amendment. Since the dying declaration was admissible under common law, its use in this case did not infringe the 6th Amendment. The decision is in line with rulings of the supreme courts in California and Kansas, which also have rejected claims that Crawford bars dying declarations.2 Heterodox Hearsay The decision in Martin preceded a series of other rulings of the Supreme Court and Court of Appeals within a two-week span this spring regarding Confrontation Clause challenges to hearsay statements in criminal cases. In State v. Burrell, 697 N.W.2d 579 (Minn. May 19, 2005), the Supreme Court set aside a murder conviction where the victim was a 16-year-old girl killed by a stray bullet during a drive-by shooting. The Court remanded the case to the Hennepin County District Court because of “multiple errors,” including a Miranda violation. One of the mistakes in the “tragic” case was allowing hearsay testimony from the defendant’s deceased mother, who had made incriminating statements to police while her son was under arrest. Although Crawford applies to “structured police questioning,” the mother was “not in custody, not a suspect, and was not advised of her [own] Miranda rights,” unlike the defendant in the Crawford case. Because the record was “relatively undeveloped with respect to … her meeting with the police,” there was “insufficient [basis] … to make an informed decision” whether the statements were proscribed by Crawford. On remand, the state will have the burden to show that the hearsay statement does not offend the 6th Amendment. In State v. Courtney, 696 N.W. 2d 73 (Minn. May 12, 2005), the state was allowed to use the videotaped statements made to a child protection investigator introduced by a six-year-old child of a domestic assault victim. The Court of Appeals had reversed the conviction, deeming the admission of the statement to be an error that was “not harmless.”3 But the Supreme Court reversed, reasoning that any error in admitting the statement “was harmless beyond a reasonable doubt.” Apart from playing the videotape, the state made only “limited use” of the statement. The prosecution made only brief references to the statement, and the defendant was effective in “calling into question the value of the statement.” Since the evidence of the defendant’s guilt was “strong,” and the statement was “not highly persuasive,” admission of the statement was harmless. The Court of Appeals also upheld hearsay statements by a minor in affirming a sex abuse conviction in State v. Krasky, 696 N.W.2d 816, (Minn. App. May 24, 2005). The five-year-old female victim told a nurse practitioner working with child protection personnel of the abuse, and the testimony of the nurse about the statement and her examination of the child was allowed into evidence. The appellate court rejected a Confrontation Clause challenge to the hearsay because the statements do not “fall into any of the formulations” of impermissible “testimonial” hearsay under Crawford. The critical consideration was that the child did not “reasonably believe” that her remarks “would be available for use at a later trial” and a child of her age could not have such a “reasonable … expectation.” In State v. Caspetski, 696 N.W.2d 387 (Minn. App. May 17, 2005), the court upheld a first-degree assault conviction returned by a jury after testimony by a deputy sheriff reporting comments by the defendant’s wife. The deputy testified about admissions that the assailant’s wife had told him the assailant made to her when he was surrounded by law enforcement personnel at his home. Affirming the conviction, the appellate court held that the hearsay statements were admissible because they “do not constitute ‘testimonial’ hearsay.” There are three “core” elements of inadmissible “testimonial” statements: ex parte in-court testimony, such as affidavits or other materials that one would reasonably expect would be used in a prosecution; similar out-of-court “formalized testimonial materials”; other statements that the declarant would reasonably believe “would be available for use at a later trial,” such as statements made in police interrogations. The hearsay statements do not fall into any of these categories. The utterances “are more analogous to a 911 call,” which the court previously held does not constitute prohibited “testimonial” hearsay, a matter still pending before the Supreme Court.4 Further, even if the statements are “testimonial,” the Confrontation Clause right was waived because the defense called the wife to testify at trial. As in Courtney, calling the declarant as a witness makes the declarant available at trial and removes any “constraints” on using “prior testimonial statements.” Apart from the constitutional issue, the wife’s remarks were admissible under the “excited utterance” exception to the hearsay rule under Rule 803(2), which allows hearsay statements made by a declarant under “stress of excitement” relating to a “startling event or condition.” The statements were made “during a stressful situation … of [an] exceptionally traumatic situation.” Therefore, they are “independently admissible” under Rule 803(2) of the Rules of Evidence. Another “excited utterance” was deemed admissible in upholding a charge of illegal possession of a firearm in State v. Harmon, 2005 WL 1545282 (Minn. App. July 5, 2005) (unpublished). The challenged statements were made by an unidentified bystander, who told a police officer that a drug suspect “ain’t playing around, he got a gun.” This statement underlay a conviction by the Hennepin County District Court. The Court of Appeals affirmed, holding that the statement fell within the “excited utterance” category and that it was not “testimonial” under Crawford. Since the unidentified bystander “would not have reasonably expected” that his remark “would be used in later judicial proceedings,” his remark was not “testimonial” and, therefore, not proscribed by Crawford. The 8th Circuit weighed in a month later in a different context. On the last day of spring it upheld a conviction for use of interstate facilities to plot a murder under 18 U.S.C. §1958(a) in U.S. v. Jakoubek 2005 WL 1421688 (8th Cir. June 20, 2005). It rejected the defendant’s contention that the trial court erred in barring his counsel from cross-examining a government agent and the prosecution’s chief witness about a pending state criminal case against that witness. Using an “abuse of discretion” standard, the 8th Circuit
held that the limitation on cross-examination did not offend the Confrontation
Clause. Because the federal
government had “no ability” to influence the outcome of the state
charges and there was “ample evidence” of the criminal background
of the star witness, such cross-examination would not “have cast additional
doubt on his credibility” and, thus, did not offend the Confrontation
Clause. Medical Matters Out of court hearsay statements made to medical providers were deemed admissible by the Court of Appeals in a pair of proceedings this summer. In State v. Robinson, 2005 WL 1668777 (Minn. App. July 19, 2005), a form filled in by an assault victim at a hospital, along with a statement made by the victim to the attending nurse, were allowed into evidence in an assault case against the victim’s assailant. The Hennepin County District Court upheld the admissibility of the statements on grounds that they were made pursuant to a medical diagnosis, which constitutes an exception to the general inadmissibility of hearsay under Rule 803(4) of the Minnesota Rules of Evidence. The provision allows hearsay statements made “for purposes of medical diagnosis or treatment,” which describe the “medical history or past or present symptoms, pain, or sensations … [or] cause or external source” if they are “reasonably pertinent to diagnose the treatment.” The appellate court upheld the conviction, but ruled that the statement does not fall within the “medical treatment” exception, because it included the identification of the assailant, which was “not reasonably pertinent to [the] medical diagnosis or treatment.” But the statement was admissible for other reasons. The victim testified at trial on the subject of cross-examination. The statements were corroborated by subsequent remarks that she made to the police. Since she was “reliable,” her out-of-court remarks fall within the provision of Rule 801(d)(1)(C), which states that testimony about a “prior” identification that reflects the “reliability of the prior identification” is not hearsay. Moreover, the “catch-all” exception to the hearsay prohibition, Rule 803(24), also applies. Under this exception, hearsay testimony is allowable if admitting it serves the “general purposes” of the Rules of Evidence and the “interest of justice.” Disagreeing with the trial court, the appellate tribunal deemed the “catch-all” exception applicable because of the declarant’s testimony at trial and availability for cross examination, her acknowledgment that she made the statements to the nurse, the reliability of her statements — which were contrary to her “relationship” interest with the assailant, who was the father of her child — and the consistency of the out-of-court statements and other evidence “presented at trial,” including statements from the attending nurse that reiterated the challenged statements. The “medical diagnosis” exception was applied to allow hearsay testimony in the conviction of a man for malicious punishment of a child in violation of Minn. Stat. §609.377, subds. 1, 5 in State v. Alfalo, 2005 WL 1668877 (Minn. App. July 19, 2005) (unpublished). A pair of nurses testified that an eight-year-old child told them that his father had hit him, which resulted in a broken tooth, swollen lip, and chin bruise. At trial, the youth recanted and denied that he had been struck by his father. Affirming the decision of the Ramsey County District
Court, the appellate court held that the testimony by the nurses about
the child’s statements was admissible because of the medical-diagnosis
exception. The youth’s reliability was established by the
“absence of a motive to fabricate,” along with his
“undisputed ability” to “see and know who he is identifying.” It is not necessary that the out-of-court statements
corroborate the declarant’s trial testimony
in order to fit within the medical-diagnosis exception. Confrontation Conclusion The Confrontation Clause has been a fundamental protection of the rights of criminal defendants for many centuries, even preceding its adoption as part of the Constitution. The recent rulings of the U.S. Supreme Court, the 8th Circuit Court of Appeals, the Minnesota Supreme Court, and the Minnesota Court of Appeals add new meaning to the provision, while concomitantly raising unanswered questions about the scope of the doctrine. The types of circumstances that bar hearsay testimony in criminal cases remain uncertain, as does the precise meaning of the term “testimonial,” which underlies the preclusion of such testimony. But one feature seems certain:
future cases in Minnesota and elsewhere are likely to address
and flesh out the principles underlying this important constitutional
provision. c Notes 2 People v.
Monteroso, 101 P.3d
956 (Cal. 2004); State v. Meeks,
88 P.3d 789 (Kan. 2004); See also Walton v. State, 603 S.E.2d 263 (Ga. 2004) (confrontation claim waived because not raised
at trial). 3
682 N.W. 2d 185 (Minn. App. 2004). 4 State v.
Wright, 686 N.W. 2d 295 (Minn. App. 2004), rev.
granted (Minn. Nov. 23. 2004). |
