Amicus Curiae Brief — Hammon v. Indiana
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5 SUPFOMNS Coun, Und.
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(7) | FEB 2- 206
No. 05-5705
OFFICE OF THE CLOAK
In The
Supreme Court of the Anited States
¢
HERSHEL HAMMON,
Petitioner,
V.
STATE OF INDIANA,
Respondent.
S
On Writ Of Certiorari To The
Indiana Supreme Court
.
BRIEF AMICUS CURIAE FOR
WAYNE COUNTY, MICHIGAN
IN SUPPORT OF RESPONDENT
+
KYM L. WORTHY
Prosecuting Attorney
TIMOTHY A. BAUGHMAN*
Chief, Appeals
1441 St. Antoine
Detroit, MI 48226
313-224-5792
*Counsel of Record
Altorneys for Amici Curiae
“— COCKLE LAW BRIEF PRINTING CO (800) 225-6964
OR CALL COLLECT (402) 342-2831
|
|
STATEMENT OF THE QUESTION
I.
Is a statement made by a declarant who does not testify at
trial testimonial and within the Confrontation Clause
where not taken under circumstances accompanied by the
solemnity and formality related to statements taken by
magistrates at the common law?
TABLE OF CONTENTS
Page
Statement of the Question ................ccccccseeceseeeeenseess i
Se aR ic ciccccichdctntelienniteincpuladihiitibinii icant il
ITE Pa rat TERR SS ee iv
Statement of Material Facts and Proceedings........... 1
rN i 1
I 1
SU Uicisdsstarslisdiniclcerctiacighincsbbivielngulccoseiesipipitbechdinneiin 2
A. The Task At Hand Is to Discover Meaning of
the Phrase in Question As Understood At the
ee Bic ctctceitevsintstiintenniitanenceniese 2
B. The Confrontation Clause and Crawford........ 4
(1) Gleanings from Crawford......................... 4
(a) Historical background .....................64. 4
(b) Conclusions drawn in Crawford.......... 6
C. CanIGet A Witness: Testimonial Statements.... 8
(1) Dispelling a misconception: Crawford
does not endorse three definitions of
PENILE conssvnscsioosensintescnndekesete 8
(2) The impossibility of “statements that
were made under circumstances which
would lead an objective witness reasona-
bly to believe that the statement would
be available for use at a later trial” as a
test for “Witnesses Against”..................... 10
iil
TABLE OF CONTENTS -— Continued
Page
(3) The Confrontation Clause was not de-
signed to “freeze” the law of hearsay........ 14
(4) Testimonial statements are marked by
IE TAT ae Re AA e RT Re ae 16
(5) An excited utterance, even one made to
the police, is not testimonial.................... 22
(a) Historical background .....................06 22
(b) A statement satisfying the excited ut-
terance foundation is not testimonial... 24
SN saith hcsednictie aiiiabiaieabinkd i iialhetiaaaeicatiadles 28
I ITUIIIIIIUIT citisiicineab cliche tieedecleibuiondinbibduonesdabibidatdadiaiadales 30
1V
TABLE OF AUTHORITIES
Page
FEDERAL CASES
California v. Green, 399 U.S. 149 (1970) ...............e 5, 15
Crawford v. Washington, 541 U.S. 36 (2004)............. passim
Florida v. Royer, 460 U.S. 491, 103 S-Ct. 1319
CRIED -vevecscscsesncesssonnescsstssbscsieonetensieteintnmasaaiaiiaiamen tle 9
Granholm v. Heald, __ U.S. __, 125 S.Ct. 1885
CFD scucees0sesscnsestnnnsacsiniimensenndindensisiesammeeaiandaaaaanen 4,5
NY Trust Co. v. Eisner, 256 U.S. 345 (1921)..........000c. 5
Ohio v. Roberts, 448 U.S. 56 (1986) 0.0... 18, 30
United States v. Arnold, 410 F.3d 895 (CA 6, 2005) .. 25, 26, 28
United States v. Brito, _. F.3d __ (2005 WL
SS he, Bae EID Be irs cxsccevcncssossonsiiemniianabiiatianemaamniaes ll
United States v. Gibson, 409 F.3d 325 (CA 6, 2005)......... 24
United States v. Lee, 374 F.3d 637 (CA 8, 2004)............... 24
United States v. Manfre, 368 F.3d 832 (CA 8, 2004)... 24, 28
United States v. Saget, 377 F.3d 223 (CA 2, 2004)........... 24
United States v. Summers, 414 F.3d 387 (CA 10, —
SED inisncsccsicncitesisibindynicinttinaiunmenssdiandinaasaia an 17
White v. Illinois, 502 U.S. 346 (1992)..........00.... 8, 11, 18, 20
STATE AND ENGLISH CASES
Anderson v. State, 11 P.3d 350 (Alaska App. 2005)............ 9
King v. Paine, 5 Mod. 163, 87 Eng. Rep. 584 (1696)........... 5
Lopez v. State, 888 So. 2d 693 (Fla. Ct. App. 2004)............ 9
People v. Cortes, 781 N.Y.S.2d 401 (N.Y. Sup. 2004)... 13, 14
TABLE OF AUTHORITIES — Continued
Page
State v. Snowden, 867 A.2d 314 (Md., 2005)..................... 18
Thompson v. Trevanion, Skin, 402, 90 Eng. Rep.
i scremnsesesonnsnion 23
590 Realty Co., Ltd. v. City of Keene, 444 A.2d 535
I. sssssssennunnncoesense 11
OTHER AUTHORITIES ©
Amar, The Constitution and Criminal Procedure
LL 12
Amar, “Confrontation Clause First Principles: A
Repiy to Professor Friedman,” 86 Geo. L.J. 1045
a sasdnnetnonnnnouenes 13
Bailyn, The Ideological Origins of the American
EE CET 3
ES Cee 26
Cooley, Constitutional Limitations (1886) .....................606+. 3
Davis, 3 Letters and Other Writings of James
I aslensssnnsnsnceee 3
John G. Douglass, “Beyond Admissibility: Real
Confrontation, Virtual Cross-examination, and
the Right to Confront Hearsay,” 67 Geo. Wash. L.
SEE ES STO 16
Friedman & McCormack, Dial-In Testimony, 150 U.
ee 27
Friedman, “Confrontation: The Search for Basic
Principles,” 86 Geo. L.J. 1011 (1998) ................cccccceeee 12
Garner, A Dictionary of Modern Legal Usage (2nd
EEN ES ESTERS ETE ORE 26
TABLE OF AUTHORITIES - Continued
Page
Greenleaf, Evidence (11th ed., 1863)....................20000- 15, 22
Griswold, “The Due Process Revolution and Con-
frontation,” 119 U. Pa. L. Rev. 711 (1971)...................... 15
King-Reis, Andrew, “Crawford v. Washington: The
End of Victimless Prosecution?” 28 Seattle U. L.
OE See Ge ccerciviconennciticnntccccnsdunihabivisibiniieniecmaiiitaibisaddiiaeniiaua 10
McCormick, Evidence (2nd ed., 1972) .........:cccccccceeeeees 22, 23
Morgan, Inventing the People: The Rise of Popular
Sovereignty in England and America (1988)................... 2
Thayer, A Preliminary Treatise on Evidence (1898) ......... 24
Wigmore, Evidence (1983) ............cccccccccesseessesseeeeeeees 5, 22, 23
Whittington, Constitutional Interpretation: Textual
Meaning, Original Intent, and Judicial Review
(University Press of Kansas: 1999)......................04. 16,17
Wood, The Creation of the American Republic, 1776-
eee Pe ATM aR MS ne 2
STATEMENT OF MATERIAL
FACTS AND PROCEEDINGS
Amicus adopts the factual statement presented by the
State.
S
INTEREST OF THE AMICUS
Amicus is the County of Wayne, Michigan. Wayne
County is the largest County in the State of Michigan, and
the criminal division of Wayne County Circuit Court is
among the largest and busiest in the entire United States.
The Wayne County Prosecuting Attorney, charged by state
statutes and the State Constitution with responsibility for
litigating all criminal prosecutions within his jurisdiction,
has a vital interest in the outcome of the current litigation,
as it may well affect the execution of his constitutional and
statutory duties, particularly with regard to child abuse
and domestic violence cases.
As the legal representative of a unit-of state govern-
ment, Supreme Court Rule 37 permits Amicus to file a
supporting brief without permission of the parties.
+
SUMMARY OF ARGUMENT
An out-of-court statement is testimonial if it was
made to a governmental official or officials, who acquired
it through structured questioning, and where the state-
ment was made in a formal or solemn manner.
Whether a statement, such as one made to a 911
operator, is made to seek help, or instead to report a
completed crime, is not the pertinent inquiry. A statement
that truly meets the foundational requirements of the
excited utterance exception cannot be testimonial. And the
2
constitution play no role regarding the admissibility of
nontestimonial statements; questions of sufficient “reli-
ability” of evidence to justify its admission are questions
for the law of evidence of each particular jurisdiction.
¢
ARGUMENT
A. The Task At Hand Is to Discover Meaning of the |
Phrase in Question As Understood At the Time
of Its Adoption
The question here is a difficult one concerning the
meaning of a part of the Sixth Amendment. How is ascer-
tainment of meaning of a constitutional provision to be
approached? Amicus believes that it must be approached
bearing in mind that the political genius of our Revolution
was its ultimate view of a constitution as something
distinct from and superior to the entire government,
expressing fixed principles designed to endure unless
altered by the people.’ The colonists “recognized from the
beginning that a constitution ought to be different in kind
from ordinary legislation” and “ought to bear some sort of
direct popular authorization that would place it beyond
the power of government to change,” embodying “the
difference between the constituent power of the people and >
the legislative power of the people’s representatives.” A
constitution “should not be altered without the Consent, or
Consulting with the Majority of the people.”
’ Gordon S. Wood, The Creation of the American Republic, 1776-
1787 (1969), p. 266.
* Edmund Morgan, Inventing the People: The Rise of Popular
Sovereignty in England and America (1988), p. 256-258.
> Wood, p. 274.
3
Thus, by 1770 a constitution was said to be a “line
which marks out the enclosure”; in 1773 it was the “stand-
ing measure of the proceedings of government” of which
rulers are “by no means to attempt an alteration ...
without public consent.” In 1775 it was said that a consti-
tution was “certain great first principles” on whose “cer-
tainty and permanency the rights of both the ruler and the
subjects depend; nor may they be altered or changed by
ruler or people, but only by the whole collective body ...
nor may they be touched by the legislator.“ Such a consti- -
tution must be written so as to acquire permanence, and,
to stand above the government as the fundamental source
of authority, it must represent the sovereign power; that is,
the people, through an “act of all.”
The meaning of a constitutional provision, then, is to be
garnered understanding that the ratifiers looked to the
words employed “in the sense most obvious to the common
understanding, and ratified the instrument in the belief that
that was the sense to be conveyed.” Though the Constitution
is certainly “as meant to apply to the present state of things
as well as to all other past or future circumstances,” “[i]t is
not competent for any department of the government to
change a constitution, or declare it changed, simply because
it appears ill adapted to a new state of things.”’
-"
* Bernard Bailyn, The Ideological Origins of the American Revolu-
tion, p. 182.
* Bailyn, Origins, p. 183-189.
* Cooley, Constitutional Limitations at 66.
* And see unposted letter of Madison to professor John Davis, 3
Letters and Other Writings of James Madison (1884), p. 232, 242: “After
all, we must be guided ... by the intention of those who framed, or,
rather, who adopted the constitution .. . the intention, if ascertained by
contemporaneous interpretation and continued practice, could not be
overruled by any latter meaning put on the phrase, however warranted —
(Continued on following page)
4
The Confrontation Clause provides that in criminal
cases the accused has the right-to be “confronted with the
witnesses against him.” The text is not particularly reveal-
ing; here, then, in determining what, in their sovereign
capacity, the people promulgated requires an examination
of the history that led to the clause — that is, the harm it
was designed to prevent. Crawford has started, but only
started, this task of interpretation,” and the meaning of
“testimonial!” must now be fleshed out.
B. The Confrontation Clause and Crawford®
(1) Gleanings from Crawford
(a) Historical background
The text of the clause provides a right in the accused
to be “confronted with the witnesses against him.” Critical
to the Court in Crawford was the historical development of
the Confrontation Clause, for that development informs its
by the grammatical rules of construction were those at variance with
it.”
® This Court took this approach only recently in Granholm v.
Heald,___ U.S. __.,, 125 S.Ct. 1885 (2005) in construing Section 2 of the
Twenty-first Amendment. The Court looked to the history of the
amendment and that which it was designed to allow: “The wording of
§ 2 of the Twenty-first Amendment closely follows the Webb-Kenyon
and Wilson Acts, expressing the framers’ clear intention of constitution-
alizing the Commerce Clause framework established under those
statutes.... The aim of the Twenty-first Amendment was to allow
States to maintain an effective and uniform system for controlling
liquor by regulating its transportation, importation, and use. The
Amendment did not give States the authority to pass nonuniform laws
in order to discriminate against out-of-state goods, a privilege they had
not enjoyed at any earlier time.” 125 S.Ct. 1902.
* Crawford v. Washington, 541 U.S. 36 (2004).
5
meaning.”® The founding generation’s immediate source of
the concept was the English common law, which reveals
that though the Confrontation Clause is related to the
rules concerning hearsay, it was meant to prohibit only a
specific sort of hearsay, not to freeze the law of evidence.
Amicus will not here review in depth the familiar
history informing the meaning of the Confrontation
Clause. Suffice it to say that the practice of admission of
testimony taking at magisterial examinations in lieu of
the testimony of the witness in court reached its apogee
with the infamous trial of Sir Walter Raleigh in 1603 for
treason. Depositions given by Raleigh’s alleged accomplice,
Cobham, were admitted, and Chief Justice Popham re-
fused to produce him to testify, stating that “where no
circumstances do concur to make a matter probable, then
an accuser may be heard in court, and not merely by
extrajudicial statement, but so many circumstances
agreeing and confirming the accusation in this case, the
accuser is not to be produced.”"
These practices were viewed as abusive, and the law
developed relatively strict rules of unavailability, admitting
examinations only on a showing of inability to testify in
person. But was even unavailability enough without cross-
examination at the magisterial examination? King v.
Paine” in 1696 held not. Though the case involved a mis-
demeanor, Crawford points out that by 1791 — the year the
10 “A page of history is worth a volume of logic.” NY Trust Co. v.
Eisner, 256 U.S. 345 (1921) (Justice Holmes). See also the method of
interpretation in Granholm v. Heald, at footnote 34, supra. And see
Section A, supra.
'! 5 Wigmore § 1364, p. 16-17; California v. Green, 399 US. 149
(1970) (fm 9 and 11, p.507-508);
2 King v. Paine, 5 Mod. 163, 87 Eng. Rep. 584 (1696) (cited in
Crawford).
6
sixth amendment was ratified — courts were applying the
cross-examination requirement to examinations by justices
of the peace in felony cases.’ Early 19th century treatises
confirm the requirement, and in 1848 parliament amended
statutes to make it explicit, confirming what was already
afforded the defendant by the equitable construction of the
law.'*
Colonial practices, observed Crawford, were sometime
abusive in a similar manner as the early common-law
practice, and confrontation arguments were advanced.
Many declarations of rights about the time of the Revolu-
tion included, then, a right to confrontation,” and early
state decisions held that depositions could be read against
an accused only if taken in his presence — “no man shall be
prejudiced by evidence which he had not the liberty to
cross examine.””®
(b) Conclusions drawn in Crawford
From these historical materials the conclusion ineluc-
tably follows that the principal evil at which the Confron-
tation Clause was cirected was the civil-law mode of ex.
parte examinations used as evidence at trial in the ab-
sence of the in-court testimony of the declarant. But this
focus also suggests that not all hearsay implicates the
Confrontation Clause; the admission of out-of-court state-
ments from unavailable declarants where the statements
occurred in situations that bear “little resemblance to the
' 124 S.Ct. at 1361.
4 124 S.Ct. at 1361.
8 124 S.Ct. at 1363.
© 124 S.Ct. at 1363.
7
civil-law abuses the Confrontation Clause targeted””’ is
left to the law of evidence of the federal system and the
various states.”
What statements bear sufficient resemblance to the
abuses of the civil-law practice as to warrant their exclusion
under the Confrontation Clause and which not? The text of
the clause applies the right of confrontation to a confronta-
tion of “witnesses” — those who “bear testimony.” Testimony is
typically a “solemn declaration or affirmation made for the
purpose of establishing or proving some fact.”® Thus, “an
accuser who :aakes a formal statement to government
officers bears testimony ir: a sense that a person who makes
a casual remark to an acquaintance does not.” Because the
context bears a “striking resemblance” to examinations by
justices of the peace in England, “statements taken by police
officers in the course of interrogations” are also testimonial.”
But what of other statements and other contexts? How are
they to be measured?
124 S.Ct. at 1364.
® 124 S.Ct. at 1374.
124 S.Ct. at 1375.
#124 S.Ct. at 1364.
“| The Court observed that “(w]e use the term “interrogation” in its
colloquial, rather than any technical legal, sense. Cf Rhode Island v.
Innis, 446 U.S. 291, 300-301 (1980). Just as various definitions of
‘testimonial’ exist, one can imagine various definitions of ‘interrogation,
and we need not select among them in this case. Sylvia’s |Crawford’s
wife's] recorded statement, knowingly given in response to structured
police questioning, qualifies under any conceivable definition.” 541 U.S.
36, 53, 124 S.Ct. 1354, 1365.
8
C. Can 1 Get A Witness. Testimonial Statements
(1) Dispelling a misconception: Crawford does
not endorse three definitions of “Witnesses
Against”
Crawford has come to be widely misrepresented and
misapplied in critical particulars, sewing confusion in the
decisions. Crawford did not provide a comprehensive
definition of “testimonial”; indeed, it disclaimed any such
attempt: “We leave for another day any effort to spell out a
comprehensive definition of ‘testimonial.’””’ Nonetheless
the following section of Crawford has been taken by an
unfortunately increasing number of courts as establishing
the “three faces” of testimonial statements: —
Various formulations of this core class of “testimonial”
statements exist:
“ex parte in-court testimony or its functional
equivalent — that is, material such as affidavits,
custodial examinations, prior testimony that the
defendant was unable to cross-examine, or simi-
Jar pretrial statements that declarants would
reasonably expect to be used prosecutorially,”
Brief for Petitioner 23;
“extrajudicial statements . .. contained in formal-
ized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions,”
White v. Illinois, 502 U.S. 346, 365, 112 S.Ct. 736,
116 L.Ed.2d 848 (1992) (THOMAS, J., joined by
SCALIA, J., concurring in part and concurring in
judgment);
“statements that were made under circum-
stances which would lead an objective witness
reasonably to believe that the statement would
2 541 US. 36, 68, 124 S.Ct. 1354, 1374.
9
be available for use at a later trial,” Brief for Na-
tional Association of Criminal Defense Lawyers
et al. as Amici Curiae.
These formulations all share a common nucleus
and then define the Clause’s coverage at various
levels of abstraction around it. Regardless of the
precise articulation, some statements qualify under
any definition — for example, ex parte testimony at
a preliminary hearing. Statements taken by police
officers in the course of interrogations are also tes-
timonial under even a narrow standard.”
But this section of the Crawford opinion does not create
three “categories” or “classes” of testimonial statements, it
being the task of a court reviewing the evidence in ques-
tion to see if it f..s within one of these categories”; prob-
lematically, many courts are reviewing statements in
precisely this fashion.”
* 541 US. 36, 51-52, 124 S.Ct. 1363-1364 (bullet points and
emphasis added).
* This approach to Crawford reminds one of Chief Justice (then
Justice) Rehnquist’s observation in a different context, that this mode of
analysis reveals a “mind-set more useful to those who officiate at
shuffleboard games, primarily concerned with which particular square
the disc has landed on... .” Florida v. Royer, 460 U.S. 491, 520, 103
S.Ct. 1319, 1336 (1983).
* One court, as an example of this approach, has said that “(oJur
initial task then is to determine whether the statement ... was
testimonial. In a passage of the Crawford opinion that is often quoted
[the passage quoted above], the Court identified three kinds of state-
ments that could be properly regarded as testimonial statements... .”
Lopez v. State, 888 So. 2d 693, 698 (Fla. Ct. App. 2004). Another, in the
same vein, asserts that the Court in Crawford “also stated that
testimonial statements were ‘statements that were made under
circumstances which would lead an objective witness reasonably to
believe that the statement would be available for use at a later trial.’”
Anderson v. State, 11 P.3d 350 (Alaska App. 2005).
10
At least one commentator has accurately observed that
“(t]he Court did not endorse any of these three potential
definitions.” One must look, then, to whether there are
other practices that can fairly be said to bear close kinship
to the abuses at which the Confrontation Clause was
directed, and one discovers that while the clause “applies at
a minimum” to prior testimony (including depositions and
affidavits) and to police interrogations, it covers very little
else (though many other statements may be excluded by the
law of hearsay, a matter for decision by each state).
(2) The impossibility of “statements that were
made under circumstances which would
lead an objective witness reasonably to be-
lieve that the statement would be available
for use at a later trial” as a test for “Wit-
nesses Against”
The definition advanced in Crawford by the National
Association of Criminal Defense Lawyers that testimonial
statements are “statements that were made under circum-
stances which would lead an objective witness reasonably to
believe that the statement would be available for use at a
later trial” is both under and over-inclusive; it is also
contrary to human experience, and essentially useless in
the inquiry, if not downright misleading.*’ An examination
of every out-of-court statement to determine whether it was
*® King-Reis, Andrew, “Crawford v. Washington: The End of
Victimless Prosecution?” 28 Seattle U. L. Rev. 301, 316 (2005). The title
of the article is itself a misnomer, however, for crimes where the victim
does not testify are scarcely “victimless” (see al] murder prosecutions).
2? And the same is true for the formulation in the petitioner's brief
in Crawford that a statement should be considered testimonial if it is
one that the declarant “declarants would reas«nably expect to be used
prosecutorially” — whatever that means.
11
made under circumstances which would lead an objective
witness reasonably to believe that the statement would be
available for use at a later trial is akin to “a snipe hunt
carried on at midnight on a moonless landscape.” And it is
a snipe hunt in which many courts, as indicated, are cur-
rently engaged.” This enterprise is bootless for reasons
noted by Justice Thomas concurring in White v. Illinois:*°
Attempts to draw a line between statements made
in contemplation of legal proceedings and those not
so made would entangle the courts in a multitude of
difficulties. Few types of statements could be cate-
gorically characterized as within or without the
reach of a defendant’s confrontation rights. Not
even statements made to the police or government
officials could be deemed automatically subject to
the right of confrontation (imagine a victim who
*% 590 Realty Co., Ltd. v. City of Keene, 444 A.2d 535, 536 (N.H.,
1982).
*? As one judge has cogently observed, “... these [the potential
definitions mentioned in Crawford] formulations have engendered a
‘miasma of uncertainty’ among lower courts trying to identify testimo-
nial hearsay. ... Many courts have resolved this uncertainty by seizing
on the most general formulation — a statement is testimonial if the
circumstance under which the statement was made would lead an
objective witness reasonably to believe that the statement would be
available for use at a later trial - and applying it, without sufficient
attention to Crawford's textual and historical rationale. ... Courts that
have adopted this approach have divided on close questions such as the
categorization of various 911 calls. ... A sounder, more predictable body
of law will emerge if, when applying the various ‘formulations, we hew
closely to what I suggest is the foundational thrust of Crawford.
Crawford employed a historical approach to define the reach of the
Confrontation Clause. ... In reviewing the historical record, the Court
identified ‘the civil-law mode of criminal procedure’ as ‘the principal evil
at which the Confrontation Clause was directed.’” See U.S. v. Brito, ___
F.3d (2005 WL 2673671, 12 (CA 1, 2005) (Howard, J. concurring).
* White v. Illinois 502 US. 346, 364 112 S.Ct. 736, 747 (1992)
(emphasis suppled).
12
blurts out an accusation to a passing police officer,
or the unsuspecting social-services worker who is
told of possible child abuse). It is also not clear...
whether the declarant or the listener (or both)
must be contemplating legal proceedings.
-Professor Akhil] Reed Amar concludes that to read
“witness against” as referring to witnesses actually testifying
in court, and also to such materials as videotapes, tran-
scripts, depositions, and affidavits, when prepared for court
use and introduced as testimony, is consistent with the text
of the Confrontation Clause, its context within the Constitu-
tion, and with history.” On the other hand, while the ap-
proach of professor Richard Friedman is largely consistent
with that of Professor Amar, and with Justice Thomas’s
approach in White, it goes a fatal step further — the step later
championed in Crawford by the National Association of
Defense Attorneys. Professor Friedman includes within the
Confrontation Clause not only “formalized testimonial
materials, such as affidavits, depositions, prior testimony, or
confessions” but also any statement made by a person who at
the time of its making “reasonably should be viewed as
having made it with the anticipation that it would be pre-
sented at trial.”” And he quickly slips away even from this
formulation later in his article, and in a way that some
courts attempting to apply this “test” have also, phrasing the
test as whether the declarant “anticipates that the statement
will be used in the prosecution or investigation of a crime.”
A test requiring an expectation by the declarant that the
statement will be used at trial, though itself unworkable,
* Akhil Reed Amar, The Constitution and Criminal Procedure
(Yale University, 1997) 129-130.
* Richard Friedman, “Confrontation: The Search for Basic
Principles,” 86 Geo. L.J. 1011, 1040 (1998).
* Friedman, at 1042.
13
atextual, and ahistorical, is quite a different thing from a
test that the declarant have a reasonable expectation that
the statement might be used in an investigation. Friedman's
definition of “witnesses against” as including all unavailable
out-of-court declarants who make statements to investigat-
ing police officers cannot be justified historically, contextu-
ally, or textually."
One particularly apt example reveals Justice Tho-
mas’s prescience in this regard.” An individual called the
911 operator, and reported a shooting as it was occurring
before his very eyes, including such remarks to the opera-
tor as “Oh, he’s shooting at him, he’s shooting at him”;
“He’s killing him, he’s killing him, he’s shooting him
again”; and “He shot him and now he’s running. And he
shot him two or three times.”” The declarant was un-
known, and the tape admitted. Though the statements
qualified both as excited utterances and present sense
impression, they were found to be testimonial nonetheless.
Because 911 operators are trained in how to gather infor-
mation from callers reporting crimes that have occurred
and also ongoing crimes, the court found the questions of
the operator to constitute “interrogation.” Further, though
the caller was describing a shooting as it happened before
his eyes the court reached the stunning conclusion that:
¢ The 911 call reporting a crime preserved on tape
is the modern equivalent, made possible by tech-
nology, to the depositions taken by magistrates or
* And see Amar, “Confrontation Clause First Principles: A Reply to
Professor Friedman,” 86 Geo. L.J. 1045 (1998): “Methodologically, his
{Professor Friedman's] definition unwittingly reflects residual traces of
hearsay doctrine and tends to slight constitutional text, history, and
structure.”
* People v. Cortes, 781 N.Y.S.2d 401 (N.Y. Sup. 2004).
* 781 N.YS.2d at 403-404.
14
JPs under the Marian committal statute. Like
the victims and witnesses before the King’s
courts an objective reasonable person knows that
when he or she reports a crime the statement
will be used in an investigation and at proceed-
ings relating to a prosecution.”
This is risible (and fortunately stands essentially alone in
the post-Crawford decisions and literature); it also demon-
strates how the itself inappropriate “test” that a statement
the declarant should reasonably expect to be used in-court
is testimonial is quite often morphed into the quite differ-
ent test that a statement the declarant should reasonably
expect the police to make use of in their investigative
efforts is testimonial (and one assumes the police do not
take or receive statements simply for their possible
amusement value, or to wile away the time).
The cases after Crawford often take different ap-
proaches, and reach wildly divergent results, because the
framework employed is, for the reasons given by Justice
Thomas, incoherent and problematic. This Court should
set its face against the “made under circumstances which
would lead an objective witness reasonably to believe that
the statement would be available for use at a later trial” as
a test for “witnesses against” as unworkable and, perhaps
even more importantly, unjustified by the text and history
of the Confrontation Clause. -
(3) The Confrontation Clause was not designed
to “freeze” the law of hearsay
One view of the matter is a claim that the excited
utterance or spontaneous declaration hearsay exception
did not exist in 1791, and so cannot be employed now
3? 781 N.Y.S.2d at 415 (emphasis supplied).
15
without violating the Confrontation Clause. This is the
view that the Confrontation Clause is simply a “super-
hearsay” rule, incorporating whatever the law of hearsay
was in the 1790's. A particularly esteemed former Solicitor
General of the United States has well-put the matter; the
Confrontation Clause “was to be interpreted in light of the
law as it existed at the time of the adoption of the sixth
amendment, and that law recognized exceptions to the
hearsay rule. The Confrontation Clause had a purpose,
clearly, but it was not designed to freeze the law of evi-
dence or to exclude all hearsay evidence.”” And three and
a half decades before Crawford this Court itself rejected
the notion that “the Confrontation Clause is nothing more
or less than a codification of the rules of hearsay and their
exceptions as they existed historically at common law.””
One commentator has explained that an “incorporation of
hearsay rules” approach would require that any develop-
ment of the law of hearsay come only through constitu-
tional amendment; instead, however, there “are more than
a few plausible historical reasons to conclude that the
Framers left the admissibility of hearsay to the law of
** Erwin N. Griswold, “The Due Process Revolution and Confronta-
tion,” 119 U. Pa. L. Rev. 711, 714 (1971).
8 California v. Green, 399 U.S. 149, 155 (1970). Note, for example,
that a good 70 years after the adoption of the Sixth Amendment
Professor Greenleaf, in his renowned evidence treatise, refers to
statements that are “part of the res gestae” as being original evidence,
and not hearsay at all, discussing what today would be the exceptions
for present sense impression, statements of mental condition, such as
intent, and statements of physical condition. See 1 Greenleaf, The Law
of Evidence, §§ 98-114, § 123 (H.O. Houghton, 1863). With regard to
hearsay exceptions, the treatise refers only to statements concerning
reputation; statements concerning ancient possessions; declarations
against interest; dying declarations; prior recorded testimony; and
admissions and confessions. See 1 Greenleaf, Chapters VI-XII.
16
evidence,” save a particular kind of hearsay — uncross-
examined formal statements taken by the government.
(4) Testimonial statements are marked by for-
mality
The Framers were “a group of lawyers and statesmen
who were familiar with the evolutionary process by which
common-law courts developed and modified the rules of
evidence generally and the hearsay rules in particular.”
The only lesson from history is that, as Crawford says, it
was the purpose of the Confrontation Clause to prevent
the Government from trying an accused by. ex parte
affidavits and depositions. The task, then, is to see if there
are any modern practices with a close kinship to the ex
parte examinations by magistrates beyond those identified
in Crawford (which includes structured police question-
ing). The task is not to determine whether a particular
hearsay exception was, in its modern form, embraced at
the common-law at the time of the ratification of the Sixth
Amendment. An insight of Professor Keith Whittington
expressed in his brilliant exposition on constitutional
interpretation” — that the Constitution “supports not only
what its text requires but also much that it merely sug-
gests or allows” — means that faced with a question of
meaning such as that involved here, a court must not
“strike down every government action that cannot be
* John G. Douglass, “Beyond Admissibility: Real Confrontation,
Virtual Cross-examination, and the Right to Confront Hearsay,” 67 Geo.
Wash. L. Rev. 191, 240 (1999).
*' Douglas, at 240.
“ Keith Whittington, Constitutional Interpretation: Textual
Meaning, Original Intent, and Judicial Review (University Press of
Kansas: 1999).
17
justified in originalist terms but only those that are
inconsistent with known constitutional requirements.” It
is not required that the law of hearsay as it now exists be
shown to have been embraced by the common law of
evidence at the time of the ratification of the Sixth
Amendment, but only that any evidentiary principle now
at issue is not inconsistent with that which was intended
to be prohibited by the Confrontation Clause.
Admission at trial of the results of government inter-
rogation without presentation of the declarant, be it of
suspects or witnesses, amicus submits, constitutes the
universe of practices sought to be precluded by the Con-
frontation Clause — along with governmentally acquired
affidavits or depositions, prior testimony at a preliminary
hearing, before a grand jury, or at a former trial — that are
akin to the practice of admission at trial of ex parte
pretrial examinations of witnesses by magistrates. This
result is reached by examining the “common nucleus” of
these various statements. That common nucleus has been
mistakenly identified by some courts in the following
manner:
... we believe an objective test focusing on the
reasonable expectations of the declarant under
the circumstances of the case more adequately —
safeguards the accused’s confrontation right and
more closely reflects the concerns underpinning
the Sixth Amendment.... Thus we hold that a
statement is testimonial if a reasonable person in
the position of the declarant would objectively
foresee that his statement might be used in the
investigation or prosecution of a crime.“ ~
*° Whittington, at 172, 211 (emphasis supplied).
“ United States v. Summers, 414 F.3d 387 (CA 10, 2005) (emphasis
supplied).
18
The Tenth Circuit has, amicus submits, misapprehen led
the clues available in Crawford; further, inclusion of an
objective belief by the declarant that the statement might
be used in the investigation of a crime is wholly unrelated
to the taking by magistrates of pretrial depositions for use
at trial in lieu of testimony from the declarant.“ Closer to
the mark is this conclusion by the Maryland Supreme
Court:
these standards share a common nucleus in that
each involves a formal or official statement made
or elicited with the purpose of being introduced at
a criminal trial. ... Although these standards fo-
cus on the objective quality of the statement
made, the uniting theme underlying the Craw-
ford holding is that when a statement is made in
the course of a criminal investigation initiated by
the government, the Confrontation Clause forbids
its introduction unless the defendant has had an
opportunity to cross-examine the declarant.”
It is the Maryland Supreme Court and not the Tenth
Circuit that is on the right path.
The path to Crawford begins with White, a case
decided under the Confrontation Clause view overturned
by Crawford. Multiple out-of-court statements of a child
were admitted, the child not testifying. Applying then-
extant principles, this Court affirmed, finding the state-
ments sufficiently reliable.” Justice Thomas, joined by
Justice Scalia, expressed a different view, one pointing
* And, for reasons previously stated, the test is unworkable and
makes no sense.
State v. Snowden, 867 A2d 314, 324 (Md., 2005) (emphasis
supplied).
* The prevailing test at the time being, of course, Ohio v. Roberts,
448 US. 56 (1986).
19
toward Crawford. That concurring opinion suggested that
the “relevant historical materials” point to a “narrower
reading of the Clause that the one given to it since
1980... .”” It concluded that there is “little if any indica-
tion in the historical record that the exceptions to the
hearsay rule were understood to be limited by the simul-
taneously @voelving common-law right of confrontation,”
and found that the then-current Confrontation Clause
standards had “no basis in the text of the Sixth Amend-
ment.” In addition to finding problematic a test for
“testimonial” statements based on the contemplation of the
declarant of future legal proceedings at the time of the
making of the statement, adverted to previously, the
concurring opinion focused as an alternative Oly formal
materials:
One possible formulation is that .. . the Confron-
tation Clause is implicated by extrajudicial
_ statements only insofar as they are contained in
formalized testimonial materials, such as affida-
vits, depositions, prior testimony, or confessions
... [for] [I]t was this discrete category of testimo-
nial materials that was historically abused by
prosecutors as a means of depriving criminal de-
fendants of the benefit of the adversary process
... and under this approach, the Confrontation
Clause would not be construed to extend beyond
the historical evil to which it was directed.”
Thus, the-concern of the concurring opinion of Justices
Thomas and Scalia was that the Confrontation Clause was
being read too broadly, not too narrowly, and they looked to
two features shared by materials the admission of which
** 112 S.Ct. at 745.
* 112 S.Ct. at 746.
* 112 S.Ct. at 747 (emphasis supplied).
20
without cross-examination the Confrontation Clause was
aimed to prohibit: 1) governmental action; and 2) a formal-
ized setting in the obtaining of the material. Justice Scalia
authored Crawford, in an opinion fully joined by Justice
Thomas, and the opinion signals no retreat from these
concerns.
As with Justice Thomas’s concurring opinion in White,
Justice Scalia’s majority opinion in Crawford reviewed the
relevant historical materials concerning the evil at which
the Confrontation Clause was aimed, concluding that the
principal evil the Clause was designed to prevent was “ex
parte examinations as evidence against the accused.””
“Reliability” of out-of-court statements from unavailable
declarants as a general matter was noi the concern of the
Clause; unreliable off-hand remarks ar? not within the
Clause (though ordinarily inadmissible under the law of
evidence), and quite reliable ex parte examinations of
unavailable declarants are within the Clause, even if the
law of evidence developed some exception to permit
them.” The text of the Clause itself, said the Court, re-
veals its focus, for it applies to “witnesses” against the
accused, and these are those who “bear testimony,” which
in itself is typically a “solemn declaration or affirmation
made for the purpose of establishing or proving some fact
... [aJn accuser who makes a formal statement to govern-
ment officers bears testimony in a sense that a person who
makes a casual remark to an acquaintance does not.””
Again, the emphasis is on 1) governmental activity in the
taking of the statement, and 2) the solemnity or formality
of the occasion in which this is done. And the Court readily
5° Crawford, 124 S.Ct. at 1363.
* Crawford, 124 S.Ct. at 1364.
S 124 S.Ct. at 1364.
23
declaration” part of the “res gestae” amalgam, which came
to be known as the excited utterance, first seems to have
developed as an exception permitting the declaration of
one who had been injured made “immediately upon the
hurt received, and before [the declarant] had time to
devise or contrive anything for her own advantage... .”,””
and may only have extended to the person injured and not
someone observing the incident. There thus may have been
no excited utterance exception to the rule against admis-
sion of hearsay at the time of the ratification of the Sixth
Amendment other than as applied to the victim of some
hurt or injury. Over time, however, the excited utterance
developed as a distinct exception applicable to a statement
- made by any person, where there had been some event so
startling as to render normal reflective thought processes
“inoperative,” and where the statement was made as a
reaction to that event and not as a matter of reflection.
Initially, it appears, “immediacy” was required; that is, the
statement had to have been made immediately upon
observation of the startling event, but this requirement
was a result of a confusion of the exception with verbal-act
principles, and it became clear that the declaration was
not required to be contemporaneous with the event, but
rather made when the declarant was still under the
influence of the excitement caused by the event.”
°* Thompson v. Trevanion, Skin. 402, 90 Eng. Rep. 179 (K_B.: 1694).
® McCormick, § 297, p. 704.
*! Wigmore, § 1756, p. 230-231. Note that closeness in time is more
strictly required with regard to the modern understanding of the
present sense impression hearsay exception, which does not require
that the event described be startling., but instead that the statement
describing it be made as the event is occurring or immediately thereaf-
ter.
24
(b) A statement satisfying the excited ut-
terance foundation is not testimonial
That the excited utterance exception may not have
existed, at least in its current form, at the time of the
ratification of the Sixth Amendment is not the point
here;” what matters is whether the modern understand-
ing of the exception — as it is applied to excited utterances
made to governmental officials — is contrary to the prohibi-
tion of the Confrontation Clause. An excited utterance
made to someone other than a governmental official raises
no Confrontation Clause issues.” Both the wrong ap-
proach, in the majority opinion, and the correct approach,
taken by the dissent, in considering excited utterances to
governmental officers (either at the scene when officers
© Amicus would note the important observation made by Professor
Thayer with regard to the construction of hearsay exceptions in
general:
It seems a sound general principle to say that in all cases a main
rule is to have extension, rather than exceptions to the rule; that
exceptions should be applied only within strict bounds, and that
the main rule should apply in cases not clearly within the excep-
ition. But then comes the question, what is the rule, and what are
the exceptions? There lies a difficulty. A true analysis would
probably restate the law so as to make what we call the hearsay
rule the exception, and make our main rule this, namely, that
whatsoever is relevant is admissible To any such main rule there -
would, of course, be exceptions; but as in the case of other excep-
tions, so in the hearsay prohibition, this classification would lead
to a restricted application of them, while the main rule would
have freer course.
Thayer, A Preliminary Treatise on Evidence (Little, Brown, and Co.,
1898), p. 522. ‘
“ That the statement must be to a governmental officer of some
sort is not a matter of debate. See, e.g., United States v. Gibson, 409
F.3d 325, 338 (CA 6, 2005); United States v. Manfre, 368 F.3d 832, 838
n. 1 (CA 8, 2004); United States v. Lee, 374 F.3d 637, 645 (CA 8, 2004),
United States v. Saget, 377 F.3d 223, 229 (CA 2, 2004).
25
respond, or through 911 emergency calls) are revealed in a
recent opinion of the Sixth Circuit Court of Appeals.
Without belaboring the facts of the case, suffice it to
say that the majority in United States v. Arnold” was of
the view that a 911 call there was testimonial because in
its view any statement made to government officials is
testimonial under Crawford, this being the only question
involved in the inquiry. The majority flatly said that
“Gordon [the declarant] made the statements to govern-
ment officials: the police. This fact alone indicates that the
statements were testimonial.” This “reasoning” ignores
references in Crawford to the formality of the occasion, to
the solemness of the statement, and to the need for the
statement to have been the result of interrogation (even
with that term employed, as said in Crawford, in its “collo-
quial” rather than technical sense, meaning simply that the
Court was not referring to the definition of interrogation
applicable to the issue of when Miranda warnings are
applicable,” which applies only to persons in custody, and
would have no application at all to witnesses).
That the statement was to a government official is the
starting point not the ending point of the analysis. Craw-
ford refers to interrogation “colloquially” — in its everyday
sense. The Merriam-Webster Dictionary defines “interrogate”
“ United States v. Arnold, 410 F.3d 895 (CA 6, 2005). The opinion was
withdrawn on rehearing, and the majority reversed on a different ground.
Because Judge Sutton disagreed with the new basis for reversal, his
discussion of Crawford remained germane, and he reaffirmed it. U.S. v.
Arnold, __ F.3d ____, 2005 WL 3315297 (CA 6, 11-23, 2005).
“ United States v. Arnold, 410 F.3d at 903 (emphasis supplied).
“ See Rhode Island v. Innis: (interrogation of a suspect in custody
occurs through questions or statements that are reasonably likely to
elicit an incriminating response; clearly, this cannot be the test for
interrogation with regard to ordinary witnesses).
26
as “to question formally and systematically.” Lexicogra-
pher Bryan Garne~ says that the term “suggests formal or
rigorous questioning.” And Black’s Law Dictionary® (7th
ed., 1999) defines “interrogation” as “the formal or sys-
tematic questioning of a person.” With regard to 911 calls,
or statements made to the responding police officers at the
scene, where the statement at issue satisfies the founda-
tional requirements of the excited utterance exception —
and not all such statements will — it is by definition
nontestimonial; no distinction can be made regarding
whether the purpose of the statement is to report a crime
that has just occurred, or to request assistance during an
ongoing crime, as some cases have done. The question is
whether the statement is or is not an excited utterance (or
present sense impression, if the statement describes an
event as it is occurring or immediately thereafter).
Judge Sutton’s dissent in Arnold is precisely correct;
amicus cannot improve upon his remarks, set forth below:
e Asin this case, a 911 call generally will be a plea
for help, not an effort to establish a record for fu-
ture prosecution. A 911 call represents a back-
ward-looking response to an emergency that has
already occurred or a contemporaneous response
to an emergency that is occurring, not a forward-
looking statement about a criminal prosecution
that may or may not occur.
¢ Such calls also bear poor analogies to the kinds
of testimonial statements that the Court has said
wi’ traditionally qualify — “affidavits, deposi-
tions, prior testimony, or confessions,”. . . .
* *x *
” Garner, A Dictionary of Modern Legal Usage (2nd ed., 1995), p. 463.
“ Black's Law Dictionary (7th ed., 1999).
27
While this approach likely will mean that most
911 calls will be admissible, it does not mean
that all of them will be admitted. There may well
be situations where the 911 call is not far re-
moved from a deliberative statement to investi-
gating officers or where, to borrow a phrase from
Professors Friedman and McCormack, it
amounts to nothing less than “dial-in testimony.”
... Richard D. Friedman & Bridget McCormack,
Dial-In Testimony, 150 U. Pa. L.Rev. 1171 (2002).
District court judges are well equipped to deter-
mine on a case-by-case basis whether such an ex-
ception ought to apply, and we are well equipped
to ensure that in the general run of cases “dial-in
testimony” is not being admitted.
In considering this issue, I cannot resist com-
menting on the nexus between the “excited ut-
terance” inquiry and the “testimonial” inquiry.
When a district court finds that a 911 call “re-
late[s} to a startling event or condition made
while the declarant was under the stress of ex-
citement caused by the event or condition” —
when in other words the trial judge finds that the
call qualifies as an excited utterance under Rule
803(2) of the Federal Rules of Evidence — it often
would seem to be the case that the call is not tes-
timonial in nature. It is very difficult to imagine
a “solemn” excited utterance or even a semi-
solemn excited utterance.
Any statement that takes on the qualities that
the Court has ascribed to the definition of testimo-
nial evidence (a “solemn declaration ... ,” Craw-
ford, 541 US. at 51, 124 S.Ct. 1354) or to agreed-
upon forms of testimonial evidence (“affidavits,
depositions, prior testimony, or confessions,” id.
at 51-52, 124 S.Ct. 1354) would seem to depart
28
‘ from the prerequisites for establishing an excited
utterance. To respect the one set of requirements
would seem to disrespect the other. In the end, the
number of “solemn” statements that also happen
to “relate to a startling event or condition made
while the declarant .was under the stress of ex-
citement caused by the event or condition” may be
something approaching a null set.®
To determine whether a statement is testimonial within
the meaning of Crawford, so as to be barred from admis-
sion at trial by the Confrontation Clause unless the
declarant testifies or the statement was subject to cross-
examination when taken, a reviewing court should ask
whether the statement was made to a governmental
official, as a result of formal or systematic questioning,
and given in a solemn or deliberate manner. That a state-
ment falls within the exceptions for present sense impres-
sion or excited utterance means that the statement is not
testimonial; that it falls without does not mean that it is,
nor is the law of evidence frozen to exceptions as under-
stood either in 1789 or currently.
D. Summary
The Confrontation Clause was designed to have a
limited, though extremely important, role. A particular
practice, that of the government gathering evidence
through ex parte depositions and affidavits, and then
admitting that evidence at trial without presenting the
witnesses, was banned. Those modern practices which are
®° United States v. Arnold, 410 F.3d at 913-915 (emphasis added). See
also United States v. Manfre, supra, 368 F.3d at 838 (“Mr. Rush’s com-
ments were made to loved ones or acquaintances and are not the kind of
memorialized, judicial-process-created evidence of which Crawford
speaks”), emphasis supplied.
29
closely akin this banned civil-law practice are also prohib-
ited, so that when the government engages in forma! or
structured questioning of an individual, who “bears wit-
ness” with a solemn or formal statement, that testimonial
statement is inadmissible under the Confrontation Clause
unless the declarant testifies (and the out-of-court state-
ment may remain barred by rules of evidence, but the
Confrontation Clause has nothing to say on the point). The
law of evidence, especially hearsay exceptions, was not
well developed at the time of the ratification of the Sixth
Amendment, and the policy considerations concerning
whether certain hearsay exceptions should be created or
even expanded is not one with which the Confrontation
Clause is concerned, outside of the evil it was designed to
prevent.” Much hearsay falls without the Confrontation
Clause and also without any hearsay exception; that it is
not barred by the Confrontation Clause does not render it
admissible. Where the statement made by a declarant not
testifying at trial was not testimonial in that it was not to
a governmental agent; or if to a governmental agent, not
the result of structured or formal questioning (as in a
response to an arriving police officet’s question, “what
happened here?”); or if itself not solemn or formal but
within an exception such as the excited utterance or
present sense impression, the question is solely one of
© In Crawford Justice Scalia suggests that there may be some
“tension” between Crawford and the majority opinion in White, noting
that the spontaneous declaration exception may not have existed at all
at the time of the ratification of the Sixth Amendnient. This discussion
was, of course, dicta, and is scarcely an exploration of the relationship
between excited utterances, when made to a governmental officer, and
the Confrontation Clause.
30
policy and not constitutional law, and belongs to the law of
evidence of the particular jurisdiction.”
¢
CONCLUSION
Wherefore, amicus submits that the convictions
should be affirmed.
~ Respectfully submitted,
KyM L. WORTHY
Prosecuting Attorney
County of Wayne
TIMOTHY A. BAUGHMAN
Counsel of Record
Chief of Research,
Training and Appeals
1441 St. Antoine
Detroit, MI 48226
313 224-5792
™) And amicus submits that Ohio v. Roberts, 448 U.S. 56 (1980) has
no role to play with regard to nontestimonial] statements to determine
their “reliability.” There is no general “reliability” component of due
process that permits federal courts to superintend the evidentiary
decisions of state courts so as to determine whether the evidence
admitted was sufficiently “reliable” under some standard not itself
either explicit or implicit in the constitution.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.