Crawford's impact on Florida criminal law: what's in and what's out in the world of hearsay.

In 2004, the U.S. Supreme Court issued a groundbreaking opinion, Crawford v. Washington, 541 U.S. 36 (2004), which is destined to have a far-reaching impact on Florida criminal law. This article will specifically address Crawford's impact on the admissibility of certain types of hearsay statements in criminal cases in Florida, and what we may expect in the future. (1)

In Crawford, the Supreme Court held that a testimonial hearsay statement is inadmissible at a criminal trial unless the declarant is shown to be unavailable and the party against whom the statement is admitted had an opportunity for cross-examination. Crawford abrogated the long-standing rule of Ohio v. Roberts, 448 U.S. 56 (1980), which had previously permitted courts to admit testimonial hearsay if those statements possessed adequate "indicia of reliability." Roberts conditioned admissibility of hearsay statements on whether the statement fell under a "firmly rooted hearsay exception" or bore "particularized guarantees of trust worthiness." In overruling Roberts, the U.S. Supreme Court carefully analyzed the Sixth Amendment's confrontation clause and determined that "testimonial hearsay" could only be admitted: a) upon a demonstration that the declarant is unavailable, and b) that the defendant had a prior opportunity for cross-examination.

The Supreme Court, in dispatching to obscurity its prior "indicia of reliability" requirement, noted that the confrontation clause does not require that evidence be reliable "but that reliability be assessed in a particular manner." Thus, Crawford has changed the admissibility of certain categories of hearsay statements in Florida criminal cases.

Police-controlled Taped Phone Calls

What happens when the state seeks to introduce an audiotape of a police-controlled phone conversation between a nontestifying co-defendant and the defendant? A survey of post-Crawford Florida cases reflects the likelihood that police-controlled phone calls are inadmissible in a criminal trial unless the declarant testifies at trial and is subject to cross-examination. In State v. Hernandez, 875 So. 2d 1271 (Fla. 3d DCA 2004), rev. granted, 894 So. 2d 972, rev. dism'd., 911 So. 2d 95 (Fla. 2005), the court held that admission of a nontestifying co-defendant's out-of-court statement to the defendant during a police-controlled, audiotaped phone conversation would, in light of Crawford, violate the Sixth Amendment confrontation clause because the defendant did not have an opportunity to cross-examine the co-defendant. In Hernandez, after the co-defendant's arrest, the police persuaded him to engage in a controlled, audiotaped phone call to the defendant in an effort to obtain admissions from the defendant in the hopes that the he would incriminate himself. The Third District Court of Appeal had no difficulty finding such statements to be "testimonial." The court also ruled that the statements of the co-defendant were inadmissible, even if the statements could have been classified as "adoptive admissions." The Hernandez court found that it was not bound by the Florida Supreme Court's prior and very recent decision in Globe v. State, 877 So. 2d 663 (Fla. 2004), which held that admission of a co-defendant's statements as adoptive admissions did not violate the confrontation clause, since Globe relied on Roberts which was overruled by Crawford. Accordingly, in cases of police-controlled telephone conversations, such conversations are likely inadmissible at trial unless the declarant testifies and is subject to cross-examination.

Excited Utterances

Prosecutors commonly rely upon the "excited utterance" hearsay exception which permits the admission of damaging hearsay statements of a declarant against a defendant relating to a startling event when the statement was made while the declarant was under the stress of the event. (2) However, in light of Crawford, use of the excited utterance hearsay exception is now much more difficult for prosecutors. Whether an out-of-court statement asserted to be an "excited utterance" is admissible in a Florida criminal trial is a question of both state evidence law and constitutional confrontation law. (3) The proffered excited utterance must first be admissible under the excited utterance exception in F.S. [section] 90.803(2). If the proffered statement is admissible as an excited utterance, that does not end the analysis. A determination that an out-of-court statement is an "excited utterance" under [section] 90.803(2) merely means that the statement will not be excluded as hearsay. (4) It may still be inadmissible for other reasons, however, such as a Sixth Amendment confrontation clause violation. Accordingly, before an excited utterance may be admissible in a state criminal trial, it must meet the hearsay exception requirements of [section] 90.803(2), and it must meet the confrontation clause requirements of Crawford. In Lopez v. State. 888 So. 2d 693 (Fla. 1st DCA 1994), the First District Court of Appeal reversed a defendant's conviction for possession of a firearm by a convicted felon because the admitted excited utterance was testimonial and violative of the confrontation clause despite the defendant's prior taking of a discovery deposition of the victim.5

In Howard v. State, 902 So. 2d 878 (Fla. 1st DCA 2005), the defendant was convicted of kidnapping to inflict bodily harm or to terrorize, and felony battery. The trial court admitted the "excited utterances" to a deputy sheriff made by a victim who was unavailable to testify at trial. The First District found such excited utterances to be "testimonial" and violative of the defendant's confrontation rights. The defendant's conviction was reversed.

In Manuel v. State, 30 Fla. L. Weekly D1248 (Fla. 1st DCA 2005), the defendant was convicted of aggravated battery based in part on the victim's "excited utterance" to a police officer as to how the victim was injured. The First District held that the victim's statement was testimonial because it was made in response to the officer's direct questioning. Further, the court held that the state did not demonstrate that the victim was unavailable. Finally, the court determined that the defendant did not have an adequate opportunity to confront the victim. Although the defendant had previously deposed the victim pre-trial, the prior discovery deposition of the victim was done only for purposes of discovery and not to perpetrate the victim's testimony and, therefore, did not satisfy the confrontation clause. Therefore, the excited utterance statement was inadmissible under Crawford. In Manuel, the First District reversed and remanded the defendant's conviction due to the trial court's error in admitting the victim's statement. (6)

Recently, in Hammon v. Indiana, 126 S. Ct. 552 (2005), the U. S. Supreme Court granted certiorari review of an Indiana case dealing with the admissibility of excited utterances in light of Crawford. The Hammon case involves the admissibility of statements made by a wife who reported she was the victim of domestic violence when police responded to her home. (7) It is anticipated that the U. S. Supreme Court's decision in Hammon will clarify the law regarding the admission of excited utterances post-Crawford. Accordingly, practitioners should monitor this case for future guidance.

Statements of Children 11 Years Old or Younger

In the past, statements of non-testifying children 11 years old or younger dealing with sexual abuse, child abuse, and neglect have often been admitted in Florida courts under the child victim hearsay exception. (8) However, in light of Crawford, the analysis must change. In Contreras v. State, 910 So. 2d 901 (Fla. 4th DCA 2005), a split panel of the Fourth District held that admission of an alleged child victim's statement to a coordinator of the child protection team in a sexual battery case violated the defendant's right to confrontation. The trial judge in Contreras found the child to be unavailable because of an expert's opinion that she would suffer severe emotional and psychological harm if she testified in person, and the court permitted the state to introduce the ex parte video statement of the child to the child protection team coordinator in lieu of the child's live testimony. The Fourth District Court of Appeal held that the hearsay statements were testimonial and that two prior defense depositions of the alleged child victim were insufficient to satisfy the cross-examination requirement of Crawford. Thus, the conviction was reversed.

In Mencos v. State, 909 So. 2d 349 (Fla. 4th DCA 2005), the Fourth District Court of Appeal opined that statements made by a child victim to a police officer in response to the officer's questions were testimonial and inadmissible under the Sixth Amendment's confrontation clause, but statements made by the child to her mother about the sexual abuse, overheard by the officer, were nontestimonial and could be admitted in court without violating the confrontation clause. In affirming the defendant's conviction, however, the court applied a harmless error analysis to the improper admission of the testimonial statements. Conversely, in Contreras the court rejected the state's harmless error argument regarding a Crawford violation, stating that the prosecution's "harmless error argument does little more than point to strong evidence of guilt, when the real test is whether the error could have conduced to a guilty verdict." Accordingly, counsel should be aware of the possibility that the doctrine of harmless error may apply in the area of child-victim hearsay.

In Somervell v. State, 883 So. 2d 836 (Fla. 5th DCA 2004), the defendant was charged with lewd and lascivious conduct with respect to "D.Z.," an eight-year-old male. D.Z. testified at trial and the state introduced a videotaped statement of D.Z. given to police. Rejecting the defendant's argument that admission of D.Z.'s videotaped statement to police violated his confrontation clause rights, the Fifth District Court of Appeal stated that "Mr. Somervell might be correct if the videotape had simply been received into evidence without an opportunity being afforded to cross-examine D.Z." However, since D.Z. testified at trial and the defendant had a full and complete opportunity to cross-examine D.Z., the admission of the videotape did not offend the Sixth Amendment. The defendant's conviction was affirmed. This case highlights the fact that under Crawford, courts may look to the right of confrontation. The admission of evidence, such as out-of-court videotaped statements, will pass muster under Crawford in cases where the declarant testifies and is subject to cross-examination.

In Blanton v. State, 880 So. 2d 798 (Fla. 5th DCA 2004), rev. denied, SC 04-1823 (2004), the defendant was charged with capital sexual battery on his 11-year-old adopted daughter. The child victim made a statement to a police investigator, recorded on audiotape, which incriminated the defendant. The trial court found that the child victim was legally unable to testify due to her psychological condition and admitted the child victim's statement to the police investigator at the nonjury trial. On appeal, the state conceded the child victim's statement was testimonial, and the defendant did not challenge the trial court's finding that the child victim was legally unavailable. In affirming the defendant's conviction and life sentence, the Fifth District Court of Appeal determined that the taking of the child victim's pretrial discovery deposition by the defendant satisfied the confrontation clause's cross-examination requirement. (9)

DUI Breath Technician Affidavits

Breath technician affidavits often play a critical role in DUI convictions. In Belvin v. State, 30 Fla. L. Weekly D1421 (Fla. 4th DCA 2005), the state introduced a breath test affidavit without calling the breath test technician to testify. The Fourth District Court of Appeal reversed the conviction, finding that the sole purpose of the breath test affidavit prepared by law enforcement is for use at trial and, thus, falls squarely within Crawford's "core class of 'testimonial' statements."

Likewise, in Shiver v. State, 900 So. 2d 615 (Fla. 1st DCA 2005), the First District Court of Appeal held that the trial court erred in admitting a breath test affidavit into evidence in a felony DUI trial in violation of Crawford. Although the state trooper did testify at trial, since the breath test affidavit contained hearsay statements as to the breath test instrument's maintenance which the trooper did not personally perform, that aspect of the breath test affidavit was testimonial and improperly admitted. (10) The defendant's felony DUI conviction was reversed.

Florida law post-Crawford, appears to deal a death blow to DUI breath technician affidavits when the state fails to call the technician to testify at trial. Although the issue will be subject to further appeals and opinions, prosecutors should tread cautiously in this area and defense counsel should be alert to object to such hearsay affidavits.

Department of Corrections' Business Records

When are business records testimonial in nature? In Peterson v. State, 911 So. 2d 184 (Fla. 1st DCA 2005), the First District Court of Appeal ruled that the Department of Corrections' (DOC) business records were not "testimonial" as that term is used in Crawford. Accordingly, the trial court did not err in admitting the DOC business records over the defendant's Crawford objection. In Peterson, the DOC records were being introduced to establish the defendant's prison releasee reoffender (PRR) status at sentencing.

In Desue v. State, 908 So. 2d 1116 (Fla. 1st DCA 2005), the court ruled that a computer printout of the Department of Corrections' business records was admissible to establish the defendant's prison release date. Although assuming for purposes of its opinion that the rule in Crawford applies at sentencing, the court went on to state that business records were nontestimonial and, therefore, admissible. Desue noted that its opinion "did not pertain to an affidavit prepared for use in a particular case masquerading as a business record" implying that such hearsay would be inadmissible. (11) The court held that the confrontation clause does not require the exclusion of "nontestimonial" hearsay "that falls, as business records for which the predicate is proven under Florida law, within a firmly rooted exception to the rule excluding hearsay."

From these opinions it appears arguable that Crawford applies not only to trials, but also to sentencing hearings in Florida. Accordingly, counsel should be alert to raise all necessary Crawford objections at sentencing hearings just as they would be raised at trial.

Lab Reports

In Johnson v. State, 31 Fla. L. Weekly D125 (Fla. 2d DCA 2005), the defendant was convicted of cocaine possession and other drug-related offenses. At trial, the state introduced a Florida Department of Law Enforcement lab report establishing the illegal nature of the substances allegedly possessed by the defendant. The Second District Court of Appeal found the FDLE lab report to be testimonial hearsay which had been improperly admitted despite the declarant's availability to testify. The court held that an FDLE lab report prepared pursuant to a police investigation and admitted to establish an element of the crime is testimonial hearsay even if it is admitted as a business record. The court reversed the defendant's convictions on the three drug-related charges and certified the following question to the Supreme Court of Florida, "Does the admission of a Florida Department of Law Enforcement lab report establishing the illegal nature of substances possessed by a defendant violate the confrontation clause and Crawford v. Washington, 541 U.S. 36 (2004), when the person who performed the lab test did not testify?"

It would appear clear that such drug lab reports prepared by law enforcement experts clearly fall within Crawford's reach. Convictions obtained upon the admission of lab reports without affording the defendant the right to cross-examine the declarant will likely be reversed.

911 Calls

Prosecutors often attempt to prove their cases by seeking the admission of 911 recorded telephone calls. The admission of such 911 calls is now called into doubt as a result of Crawford. In Williams v. State, 909 So. 2d 599 (Fla. 5th DCA 2005), the court ruled that admission of a 911 tape did not violate the defendant's right of confrontation. The court reasoned that statements made to a 911 operator were not testimonial and, thus, their admission was not improper under Crawford.

In Towbridge v. State, 898 So. 2d 1205 (Fla. 3d DCA 2005), the court held that a 911 tape was properly admitted as a "spontaneous statement" under F.S. [section] 90.803(1) (West 2005). In affirming the defendant's conviction, the court relied upon and agreed with the analysis of the Fifth District Court of Appeal in Herrera-Vega v. State, 888 So. 2d 66 (Fla. 5th DCA 2004), which held that Crawford was inapplicable to spontaneous statements made by a child victim to her parents under F.S. [section] 90.803(23). It is interesting to note that Towbridge addressed the admission of a 911 tape under [section] 90.803(1), yet the Towbridge court relied on Herrera-Vega which addressed the admission of a child hearsay statement under [section] 90.803(23).

It appears that some courts are concluding that 911 calls are non-testimonial because the statement is not made in response to police questioning and because the purpose of the call is to obtain assistance, not make a record against someone. (12) The U.S. Supreme Court, in Davis v. Washington, 126 S. Ct. 547 (2005), has recently accepted certiorari review in a Washington state case involving the admissibility of 911 calls in light of Crawford. The Washington Supreme Court in Davis. determined that in most cases, one who calls 911 for emergency help is not "bearing witness" and thus, the 911 call will not be the equivalent of a testimonial statement, but a 911 call to the police to report a crime may be the functional equivalent of testimony to a government agent and thus, testimonial in nature. (13) Counsel litigating the admissibility of 911 calls should pay close attention to this anticipated Supreme Court decision.

Type of Cross-Examination Necessary to Satisfy Defendant's Right to Cross-examine Declarant

A major issue in Florida which has not been resolved by the Florida Supreme Court or the U. S. Supreme Court, is the type of cross-examination necessary to satisfy a defendant's right to cross-examine a declarant under Crawford. In states such as Florida, where pre-trial depositions are permitted, does a defendant's right to take a declarant's pre-trial deposition qualify as Crawford-sufficient cross-examination? What if the defendant chooses not to take the declarant's deposition? Does the actual taking of a pre-trial deposition of a declarant by a defendant satisfy this confrontation-clause based right to cross-examine? Or, must the defendant be afforded his or her right to cross-examine in the courtroom during trial? Florida decisions are currently split on these issues. (14)

This is a thorny issue which can only be flushed out by future Florida and federal decisions. Although an argument can be made that such pre-trial depositions do satisfy Crawford's cross-examination requirement, it cannot be refuted that there is no cross-examination like trial cross-examination in the courtroom with all the attendant formalities and authority. Pretrial depositions are often conducted in small, cramped, un-professional rooms. Some depositions have even been conducted in hallways. Depositions are often not as focused or surgical as trial cross-examination. The stronger argument is that there is simply no pretrial substitute for in-court cross-examination of the declarant in the courtroom before a judge and quite often a jury.15 It may very well be a slippery slope, indeed, if the defendant's prior opportunity to take a pre-trial deposition of a declarant, or a defendant's actual pre-trial taking of a declarant's deposition, is permitted to substitute for the in-court cross-examination. Future cases will certainly have to resolve the issue of whether pretrial depositions, or the right to take such depositions, satisfies the cross-examination requirement of Crawford.

How to Raise a Crawford Objection

Counsel should be aware that the Fourth District has ruled that raising a standard "hearsay" objection at trial does not preserve a Sixth Amendment confrontation clause objection.16 Relying en Lopez v. State, 888 So. 2d 693,697 (Fla. 1st DCA 2004), the court noted that a Sixth Amendment confrontation clause objection "differs from the kind of protection that is afforded by State evidence rules governing the admission of hearsay."

Accordingly, counsel must be acutely aware at trial and at sentencing to assert both hearsay and Sixth Amendment Crawford confrontation objections, or risk waiver of the issue.

Does Crawford v. Washington Apply Retroactively?

A major issue which has arisen in Florida courts is whether Crawford applies retroactively. Obviously, this is an issue of great importance to defendants who have been convicted based upon admission of testimonial hearsay statements. The Florida Supreme Court has answered this question in the negative, reasoning in part that if retroactive application of Crawford were allowed, "the administration of justice would be greatly affected." (17)

Conclusion

Despite the fact that it was only decided a little more than one year ago, Crawford's new cross-examination and confrontation clause analysis of the admission of testimonial hearsay has resulted in numerous reversals of criminal convictions in Florida and throughout the country, and has engendered numerous opinions. Some of the issues that will be clarified over the coming months and years include exactly what constitutes testimonial hearsay and what constitutes nontestimonial hearsay, what type and kind of cross-examination is required, when is a witness unavailable in the context of Crawford, and to what extent harmless error analysis applies to Crawford violations. It's a brave new world when dealing with hearsay statements in criminal cases, and prosecutors, defense counsel and judges should be particularly attentive to the changing landscape of the law regarding the admissibility of hearsay statements in criminal cases as Crawford issues percolate through the courts.

(1) For an excellent discussion of the interpretive problems posed by Crawford, see John F. Yetter, Wrestling With Crawford v. Washington and the New Constitutional Law, 78 FLA. B.J. 26 (Oct. 2004).

(2) FLA. STAT. 90.803(2) (West 2005).

(3) Lopez v. State, 888 So. 2d 693,696 (Fla. 1st D.C.A. 2004).

(4) Id. at 697.

(5) It is unsettled whether a prior pretrial discovery deposition of the declarant by the defendant satisfies the "cross-examination" requirement. The Fifth District disagrees with Lopez. See State v. Causey, 898 So. 2d 1096 (Fla. 5th D.C.A. 2005). Further, the Lopez court certified conflict with Blanton v. State, 880 So. 2d 798 (Fla. 5th D.C.A. 2004). Cf. Manuel v. State, 30 Fla. L. Weekly D1248 (Fla. 1st D.C.A. 2005).

(6) The Manuel court certified conflict with the Fifth District Court of Appeal's decision in Blanton v. State, 880 So. 2d 798 (Fla. 5th D.C.A. 2004), on the issue of whether a prior discovery deposition satisfies the confrontation clause's cross-examination requirement. See Manuel, supra note 6.

(7) The case below is Hammon v. State, 829 N.E. 2d 444 (Ind. 2005).

(8) FLA. STAT. 90.803(23) (West 2005).

(9) Blanton is in conflict or disagreement on this issue with Manuel v. State, 30 Fla. L. Weekly D1248 (Fla. 1st DCA 2005), Lopez v. State, 888 So. 2d 693 (Fla. 1st D.C.A. 2004), and Belvin v. State, 30 Fla. L. Weekly D1421 (Fla. 4th D.C.A. 2005). See supra notes 6 & 7.

(10) Shiver, 900 So. 2d at 618-19.

(11) Desue, 908 So. 2d at 1118.

(12) See Lopez v. State, 888 So. 2d 693, 699 (Fla. 1st D.C.A. 2004); but see People v. Cortes, 4 Misc. 3d 575, 781 N.Y.S. 2d 401 (N.Y. Sup. Ct. 2004) (holding that hearsay statements relating to an ongoing shooting contained in one 911 tape were testimonial and violative of the confrontation clause).

(13) The case below is State v. Davis, 111 P. 3d 844 (Wash. 2006).

(14) See, e.g., Manuel v. State, 30 Fla. L. Weekly D1248 (Fla. 1st D.C.A. 2005) (holding that although defendant had previously deposed the victim pre-trial, the prior discovery deposition was done only for purposes of discovery and not to perpetuate the victim's testimony, and did not satisfy the confrontation clause); Blanton v. State, 880 So. 2d 798 (Fla. 5th D.C.A. 2004) (holding the defendant's taking of the child victim's pre-trial deposition satisfied the confrontation clause's cross-examination requirement).

(15) The Florida Rules of Criminal Procedure permit a motion to perpetuate testimony, but only if supported by affidavits of credible persons showing that a prospective witness resides beyond the territorial jurisdiction of the court or may be unable to attend or be prevented from attending a trial or hearing, that the witness' testimony is material, and that it is necessary to take the deposition to prevent a failure of justice. FLA. R. CRIM. P. 3.190(j).

(16) Mencos v. State, 909 So. 2d 349 (Fla. 4th D.C.A. 2005).

(17) Chandler v. Crosby, 916 So. 2d 728 (Fla. 2005); Breedlove v. Crosby, 916 So. 2d 726 (Fla. 2005).

William D. Matthewman is a Florida Bar board certified criminal trial attorney. He has been involved in the criminal justice system for approximately 30 years, first as a Miami police officer and for the past 22 years as an attorney. He is a shareholder in the South Florida law firm of Seiden, Alder & Matthewman, P.A., with offices in Boca Raton and Miami.