Singing Loudly

Distinguishing and criticizing Crawford v. Washington:

"The United State Supreme Court's recent opinion in Crawford v. Washington, established new rules for determining whether a criminal defendant's constitutional right to be confronted with the witnesses against him was violated. Prior to Crawford, the admission of an unavailable witness's statement against a criminal defendant was not violative of the sixth amendment confrontation right if the witness's statement bore adequate indicia of reliability. Ohio v. Roberts, 448 U.S. 56, 66 (1980). To meet that test, evidence must fall within a firmly rooted hearsay exception or bear particularized guarantees of trustworthiness. Crawford replaced this test with a new focus upon the testimonial or nontestimonial nature of the out-of-court statement." State v. Gonzales, 2004 N.C. App. LEXIS 503 (


From being involved in the defense clinic this semester I have had to struggle with what Crawford has done in criminal evidence cases. While I'm not an expert in the field I have had a limited experience. My experience has been in the misdemeanor courts (the impact of the decision is far broader than this) where the family violence assistant DAs relied heavily on using statements made by unavailable witnesses. The way they would get it in, pre-Crawford, was through an excited utterance hearing. These hearings would usually happen right before the trial. In general, if the statement from the witness was given to a police officer within 23 hours of the alleged occurance the Judge would grant an exception to hearsay. Then the court would proceed with the trial even though the complainant was not available to testify.

A couple of my cases were dismissed, pre-Crawford, because I was able to persuade the Judge that even though the complaint occurred within 23 hours there were other surrounding facts that indicated thought had been put into the complaint. Essentially, I had to prove that there was not an indicia of reliability. Therefore, it was not truly an excited utterance. However, getting dismissals in the family violence courts is not the norm. It is very difficult because of federal grants given when conviction rates are high enough. Giving dismissals really does hurt the amount of money they are able to generate through those grants. Crawford has caused most of the cases, like mine, where there is an unavailable complainant to be dismissed.

Scalia wrote the decision in Crawford where he essentially held that the Sixth Amendment requires that testimonial statements must be made with the opportunity for cross-examination. This decision criminial evidence in a profound way. However, courts are already beginning to distinguish Crawford; one court has criticized it; and, of course, many have followed. I outline a few of the important decisions below.

Criticized:
March 25, 2004: It has been criticized in NY v. Mascat (Criminal Ct. Bronx County, NY 2004). Essentially they hold that calls to 911 operators are not "testimonial" in nature, as that term was used in Crawford. The court criticizes that the terms "testimonial" and "police interrogation" are not defined. The court claims that as these terms are not defined it is left up to lower courts to work out the meaning of Crawford.

Distinguished:
March 8, 2004: People v. Gomez, 2004 Cal. App. LEXIS 461 (Ct App. California). The Court held that reliable testimony as to information relayed from one officer to another was not excludable as hearsay. Therefore it is not "testimonial" and cannot invoke Crawford.

March 30, 2004: U.S. v. Reyes, 2004 U.S. App. LEXIS 5833 (8th Cir.) Held that co-conspirators statements are non-testimonial. Therefore, Crawford does not apply to the conspiracy rule in hearsay.

April 7, 2004: In North Carolina v. Gonzales, the court distinguishes Crawford on the basis that Crawford had prejudicial error in allowing the testimonial evidence, whereas in this situation there was not prejudicial error.