Wrestling with Crawford v. Washington and the new constitutional law of confrontation.

On March 8, 2004, the U.S. Supreme Court handed down Crawford v. Washington, 124 S. Ct. 1354 (2004), reversing a decision of the Washington Supreme Court that had upheld Crawford's conviction for assault. (1) A hearsay statement Crawford's wife gave to a police officer during interrogation was erroneously admitted against Crawford at trial. (2) A majority of seven, in an opinion written by Justice Scalia, (3) seized the moment to reinvent the constitutional law of confrontation. (4) The Court erased a body of precedent that was, if not completely favorable to the prosecution, well understood and generally accommodating to the use of hearsay evidence without the necessity of calling the declarant as a witness. Prosecutors now must operate under the less friendly rules of Crawford. The rules themselves are at least clearly stated, although unclear in their application. But, beyond a small group of certain evidentiary situations, there is a decisional void as to when the rules apply. Defense counsel will argue for an expansive interpretation, and state and federal judges will have to wrestle with a difficult and incomplete precedent. Compounding that interpretive problem are a number of difficult issues surrounding the application of the Crawford rules.

This article discusses the interpretive problem posed by Crawford and looks at some of the problems facing prosecutors attempting to satisfy the Crawford rules for the admission of evidence that contains testimonial statements of persons who are not witnesses. (5)

Crawford as Precedent

The Court in Crawford decided that some hearsay evidence, (6) that which contains "testimonial" statements, is inadmissible in criminal prosecutions unless the declarant (the person making the out-of-court statement) either testifies or, if not, the prosecution demonstrates both a constitutionally acceptable reason for not producing the declarant as a witness, (7) and, more importantly, that the defendant had an opportunity to confront and cross-examine the declarant at an earlier proceeding. (8) As to what qualifies as a testimonial statement, the Court said:

We leave for another day any effort to spell out a comprehensive definition of "testimonial." Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed. (9)

The law prior to Crawford, summarized in Ohio v. Roberts, 448 U.S. 56, 63 (1980), viewed eye-to-eye confrontation as a provisional right of the defendant, often diluted by or sacrificed to other legitimate state interests such as the need for probative evidence or the protection of vulnerable witnesses. Accordingly, the defendant had no right to confront declarants if the prosecution's hearsay evidence had sufficient indicia of reliability. (10) Such indicia were present, by definition, if the hearsay was admitted under a "firmly rooted" hearsay exception. (11) If the exception was not "firmly rooted," admission was contingent on a judicial finding that the hearsay statement was made in circumstances that endowed it with "particularized guarantees of trustworthiness." (12) This "trustworthiness" requirement for the "non-firmly rooted" hearsay was ultimately an evaluative judicial opinion, not a historical fact, and just as in Crawford itself, where the Washington Court of Appeals disagreed with both the trial court and the Washington Supreme Court on the trustworthiness of the claimed statement against penal interest, the judicial outcomes were conflicting and unpredictable. (13)

Under Crawford, on the other hand, confrontation of persons making testimonial statements is not just one of a number of conflicting interests; it is a constitutional mandate.

Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of "reliability." ... Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. (14)

The Crawford opinion is an "original meaning" archetype. It applies the words of the constitutional text informed by the historical context in which they were written and adopted. The Court thought that the purpose of the framers was to prohibit the practice of obtaining testimony of persons in ex parte judicial proceedings and then using that testimony to convict defendants without ever producing the accusers as witnesses. (15)

The Court concluded further that custodial police interrogations were within this category of practice although they are not formal testimonial events:

Statements taken by police officers in the course of interrogations are also testimonial.... Police interrogations bear a striking resemblance to examinations by justices of the peace in England. The statements are not sworn testimony, but the absence of oath was not dispositive. ... That interrogators are police officers rather than magistrates does not change the picture either. Justices of the peace conducting examinations ... were not magistrates as we understand that office today, but had an essentially investigative and prosecutorial function. ... England did not have a professional police force until the 19th century ... so it is not surprising that other government officers performed the investigative functions now associated primarily with the police. The involvement of government officers in the production of testimonial evidence presents the same risk, whether the officers are police or justices of the peace.

In sum, even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class. (16)

As mentioned earlier, the most problematic aspect of Crawford is its failure to describe the general defining criteria for testimonial statements. That being said, it is possible to construct a current list from the Court's language, comprising three formal testimonial situations: 1) testimony at a preliminary hearing; 2) testimony before a grand jury; and 3) testimony at a former trial; (17) and two substantial equivalents: 4) statements made in police interrogation (the situation before the Court in Crawford); and 5) statements made by a defendant incident to entering a guilty plea ("plea allocutions"). (18)

If this list turns out to be exclusive, Crawford will have no remarkable effect on criminal prosecutions in Florida because it will construct no new barriers to the admissibility of hearsay evidence that are not already in place, either in our evidence law or in our existing decisional law applying the confrontation clause. (19) The list is almost certainly not exclusive, however, and the critical question is what the governing criteria for judgment should be.

There are two potential interpretive approaches to the Crawford precedent. The first would leave to the Supreme Court the decisional task of describing more completely the defining characteristics of testimonial statements. It would accept the Court's historical conclusions and search for statements elicited by state agents in contexts analogous to ex parte judicial proceedings, the target evil of the framers. (20) The defining characteristic of these ex parte proceedings was that they were procedural events with easily recognizable trappings. Further, the formality of the procedural context endowed the statements with the solemnity essential to the idea of "testimony." (21) The motivating purpose of the event--to obtain testimonial evidence for later use--could be inferred from its objective characteristics without reference to the ultimately unknowable inner thoughts or expectations of the participants.

Of course, in Crawford itself, the Court took the critical interpretive step of extending the "testimonial statement" idea beyond formal testimony, while still focusing on a procedural context identifiable from its objective characteristics, i.e., post-custody interrogation of a suspect. The raison d'etre of these interactions is the generation of statements that might be used later against a defendant at trial. (22) If courts interpreting and applying Crawford engage in a similar effort, one can anticipate the development over time of a relatively clear set of state-citizen interactions that produce "testimonial statements." This approach would avoid returning confrontation law to that same unpredictable quality that the Court sought to escape in Crawford. (23)

Under this method, the scenario that comes immediately to mind as very possibly producing testimonial statements is the interviewing of complainants of sexual abuse by members of child protection units and similar personnel. (24) These events are motivated in large part by the search for evidence and they are the type of repetitive procedural events that are defined by their context and not by the evanescent expectations of the participants. Furthermore, the personnel of these units have been treated as members of the extended prosecutorial team. (25)

On the other hand, this contextual approach would exclude from the testimonial category statements made in contexts generated or provoked by the declarant or other citizen complainants. Thus, the statements made to 911 operators or to police officers who have responded to a citizen's request for investigation or help--usually admitted under the firmly rooted hearsay exception for excited utterances that had a constitutional carte blanche in the Roberts regime--would be outside the ambit of the Craw ford rules and would continue to be admissible. (26)

A second and more expansive interpretive approach to the Crawford precedent would go beyond the procedural equivalents of ex parte testimony and look for statements made in any context where the declarant could be said to have reasonably contemplated later evidentiary use. Both the petitioner in Crawford and the amicus brief filed by the National Association of Defense Lawyers advanced this view. The Court did not adopt it nor did it purport to apply this "declarant-centric" view to the police interrogation scenario before it, but Justice Scalia did refer to it as among the "various formulations [that] exist." (27) Beyond the inherent unpredictability of such an approach, (28) there are three additional problems. First, there is no historical evidence that the framers were concerned about declarants who realized their statements might make it to court while they stayed home, and to the extent that English law of the late 18th Century admitted dying declarations, i.e., accusatory assertions from crime victims often uttered with the express purpose of evidentiary use, the historical evidence is to the contrary. (29) Second, there are probably many testimonial statements that would not be covered by this formula, particularly those made by children who have not the slightest glimmer of later evidentiary use. Finally, in the traditional method of interpreting precedent, the facts and the holding of Crawford cannot inform the application of this formula because the Court only mentioned it in passing and actually used a completely different method to decide the case.

Problems Complying With the Crawford Rules

In the great majority of cases there will be no confrontation violation if the prosecution calls the declarant as a witness at trial. (30) This is so irrespective of the content of the declarant's testimony at trial. The opportunity to confront and cross-examine the declarant is the constitutional command and it is satisfied even if the declarant does not recall either making the hearsay assertion or the events described in it. (31) The new era of criminal trials promised by Crawford means more warm bodies in the witness chair, not necessarily less hearsay evidence.

That witness chair need not always be in the courtroom, however. If the declarant is a child under 16 or a person with mental retardation, Florida statutes allow for testimony by closed circuit television in a setting that protects the witness from eye-to-eye confrontation with the accused. The testimony may be viewed by the jury either in "real time" (32) or by videotape. (33) The Maryland analog of the Florida statutes was held constitutional in Maryland v. Craig, 497 U.S. 836 (1990). The Maryland court said:

The trial court must also find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant.... Denial of face-to-face confrontation is not needed to further the state interest in protecting the child witness from trauma unless it is the presence of the defendant that causes the trauma.... Finally, the trial court must find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i.e., more than "mere nervousness or excitement or some reluctance to testify." (34)

To implement either of these closed-circuit television options a prosecutor must present adequate evidence of the required statutory and constitutional findings enumerated in the above quote, (35) and ensure that the court makes the necessary judicial findings on the record. (36) One must then trust the continuing validity of Craig and its progeny. (37)

The Crawford opinion delivers some bad news for Craig, however. It was a 5-4 decision. Justice O'Connor wrote the majority opinion and Chief Justice Rehnquist joined that opinion. In their view, confrontation could be proportionally diluted to serve other important state interests. (38) Although they did not say it, their disagreement with the majority's rationale in Crawford, and their wish to preserve the Roberts "interest balancing" structure, may have been motivated in large part by concern for the future of Craig.

Justice Scalia, who wrote a strong dissent in Craig, also wrote the majority opinion in Coy v. Iowa, 487 U.S. 1012 (1988), which held that the interposition of a screen between the defendant and the accusing witnesses unconstitutionally denied the defendant's right to face-to-face confrontation. Although the television procedure in Craig looked very much like the screen in Coy, the latter was distinguished by the Craig majority in upholding the televised option. In his Craig dissent, Justice Scalia stated the position that is now the linchpin of the majority decision in Crawford: (39)

[The majority is] wrong because the Confrontation Clause does not guarantee reliable evidence; it guarantees specific trial procedures that were thought to assure reliable evidence, undeniably among which was "face-to-face" confrontation. Whatever else it may mean in addition, the defendant's constitutional right "to be confronted with the witnesses against him" means, always and everywhere, at least what it explicitly says: the "'right to meet face to face all those who appear and give evidence at trial.'" (Quoting from Coy v. Iowa, which, in turn, quoted from California v. Green.)

In short, Craig is far less secure today than it was before March 8, 2004, but it is also much too early to write its obituary. (40)

If the prosecutor foresees both the absolute inability to call the declarant as a witness at trial and a judicial determination that the hearsay contains a testimonial statement, then the state must find a procedural option to provide the defendant an opportunity for cross-examination before trial. Otherwise, the hearsay evidence will be inadmissible. Under Fla. R. Crim. P. 3.190 (j), either party may seek a court order for the taking of a deposition to perpetuate testimony. If the foreseen unavailability comes about, the deposition would preserve the testimony for trial. Further, because it would provide the defendant with the necessary opportunity for cross-examination, it should satisfy the confrontation rules for hearsay evidence containing testimonial statements made by that declarant. It is questionable, however, whether the finding of a substantial probability of severe mental or emotional harm to a child complainant would qualify as a circumstance permitting this type of deposition. The rule seems to contemplate only the physical inability to attend trial as the requisite necessity for a deposition to perpetuate testimony, although it could be interpreted to include mental or emotional inability. (41)

If the crime charged in a Florida circuit court is a felony and the defense has opted for reciprocal discovery, the defense may take discovery depositions of eyewitnesses, which includes most complaining witnesses. (42) Could this "opportunity," if exercised, or even if not exercised, allow the admission of testimonial statements from a declarant who later becomes unavailable, either physically or psychologically?

An initial problem is that the Florida discovery rule was amended in 1989 to prohibit the presence of the defendant at discovery depositions without a court order or stipulation of the parties. (43) Thus, if a discovery deposition is to have any chance of substitution for at-trial confrontation, the prosecution will at least have to offer to stipulate to the attendance of the defendant, who, in turn, will have to be given the opportunity to attend. (44)

Second, a number of Florida decisions have firmly and without qualification limited the admissibility of testimony at discovery depositions to use only for impeachment. (45) But contrary to this constraint of Florida law, it seems clear that if the defendant's confrontation of the witness at a discovery deposition is to substitute for cross-examination at trial, then the deposition testimony will have to be admissible as substantive proof to the same extent as it would be if solicited on cross-examination at trial. Because the Florida decisions categorically prohibit this result, the only option for the state would seem to be to anticipate and try to avoid the impediment by waiving on the record, and in advance of the deposition, any objection to the defendant's substantive use of the discovery deposition. (46)

Assuming these problems in Florida law can be avoided by waiver or by stipulation, or if the state law is changed as a result of Crawford, the federal constitutional issues of whether the "opportunity to cross-examine" must actually be exercised, (47) and to what degree the "opportunity" includes the motive of defense counsel to conduct a trial-like cross-examination, will also have to be settled. The discovery deposition procedure gives the defense a broad "opportunity" to probe the knowledge of the witness; the question is whether the context sufficiently alerts the defense to use it to the fullest extent and whether that matters. In order to focus the defense motivation before the deposition, it would be advisable for the prosecutor to make complete and detailed disclosure to the defense of the content of the proposed hearsay evidence and of the possibility or probability of the unavailability of the declarant at trial.

In Roberts, the Court addressed the adequacy of the defendant's examination of a declarant at an adversary preliminary hearing. (48) The Court held that the requirement of confrontation was satisfied where the opportunity was exercised, was not "di minimus," and "was the equivalent of significant cross-examination. (49) The Court did not say whether the unexercised opportunity for examination alone would be sufficient. Because Crawford rejected the reasoning of Roberts but approved the result, (50) any equivalent cross-examination today should meet the constitutional standard. (51) Crawford also uses the unadorned phrase "a prior opportunity for cross-examination," (52) which may or may not be interpreted as shorthand for a more expanded requirement including actual exercise and motive.

Conclusion

In sum, the final impact of Crawford on criminal trials will depend on how the major issues discussed herein are ultimately resolved. In the interim, courts will differ regarding what statements are testimonial and what the Crawford rules require. The final impact may be slight, either because the testimonial statement category is limited or because compliance with the rules turns out to be feasible, with the former being somewhat more likely than the latter. Indeed, if the testimonial statement category is limited, the Crawford regime might be no less favorable to the admissibility of hearsay than the displaced "reliability" structure of Roberts. Conversely, if the testimonial statement concept is expansively interpreted, Crawford could be a hammer blow for the prosecution of cases with unwilling, incapable, or unobtainable declarants. In the meantime, where there is doubt, the prosecution must make every effort to produce declarants as witnesses at trial. Failing that, the prosecution should take anticipatory measures regarding the deposition options discussed herein to improve the chances that the defendant will have the constitutionally required opportunity to confront the declarant prior to trial.

(1) The Court remanded the case to the state court for further proceedings, which could include the question of harmless error. Id. at 1359 n.1; see, e.g., Whelchel v. Washington, 232 F.3d 1197, 1205-06 (9th Cir. 2000). Confrontation errors may also be harmless in Florida. See State v. Clark, 614 So. 2d 453, 454 (Fla. 1992); Brown v. State, 721 So. 2d 814, 816 (Fla. 4th D.C.A. 1998). In a number of other cases, including one from Florida, Corona v. Florida, 124 S. Ct. 1354 (2004), the Court granted certiorari, vacated judgment, and remanded for further consideration in light of Crawford. There is no Florida opinion in Corona; the conviction was affirmed without opinion by the Fifth District Court of Appeal. Corona v. State, 853 So. 2d 430 (Fla. 5th D.C.A. 2003) (Table). From the petitioner's reply to the state's response to the petition for certiorari, available at 2004 WL 569468, it appears that the prosecution was for sexual battery, that neither the child complainant nor her mother testified, and that police witnesses testified to out-of-court assertions made to them by both declarants.

(2) The hearsay was admitted under the "statement against penal interest" exception, on the theory that the wife might have had criminal responsibility as an accomplice. Crawford's wife did not testify at his trial. An oddity of the Crawford case is that Crawford exercised a state statutory spousal privilege to exclude her as a witness. Both the intermediate appellate court and the Washington Supreme Court ruled that the defendant's exercise of the privilege did not waive his confrontation right. State v. Crawford, 54 P.3d 656, 660 (2002). This finding had no effect in the decision of the Washington Supreme Court, of course, because it went on to find that there was no confrontation violation and affirmed the conviction, thus making its "no waiver" ruling of academic interest only. The prosecution opted not to seek review of this ruling, and the Supreme Court expressed "no opinion" on the matter. Id. at 1359 n.1. Of course, the exercise of a statutory privilege by the defendant could not be viewed as blameworthy behavior on his part sufficient to forfeit his right of confrontation. Existing law recognizes that if the defendant wrongfully procures the unavailability of the witness, then he has forfeited his right to be confronted by that witness. The Crawford opinion accepted this doctrine. "For example, the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability." Id. at 1370 (emphasis added). The privilege question is one of waiver, however, not one of forfeiture. See State v. Meeks, 88 P.3d 789, 794 (Kan. 2004), and People v. Moors, 2004 WL 1690247 (Colo. App. 2004), for post-Crawford decisions applying the forfeiture doctrine to avoid confrontation issues.

(3) Chief Justice Rehnquist, joined by Justice O'Connor, concurred in the judgment, agreeing that the evidence was inadmissible under existing law, but disagreeing strongly with the majority's new theory and analysis. Crawford, 124 S.Ct. at 1374.

(4) "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. CONST. amend. VI.

(5) The possible retroactive application of Crawford is also a fascinating subject but space constraints consign that topic to another time. See, e.g., People v. Edwards, 2004 WL 1575250 (Colo. App. 2004) (not final), holding Crawford not retroactive.

(6) The confrontation clause addresses only the admission of hearsay, i.e., evidence of out-of court assertions offered to prove their truth. "(The Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. See Tennessee v. Street, 471 U.S. 409, 414 (1985).)" Crawford, 124 S.Ct. at 1369 n. 9. See, e.g., People v. McPherson, 2004 WL 1632056 (Mich. App. 2004) (holding Craw ford inapplicable where accomplice's confession was admitted only to impeach defendant).

(7) The Court in Crawford said nothing to alter its prior language on unavailability. See, e.g., Ohio v. Roberts, 448 U.S. 56, 74-75 (1980) ("The ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness. As with other evidentiary proponents, the prosecution bears the burden of establishing this predicate.") Under Craw ford, if the evidence is "testimonial," the prosecution must make a constitutionally adequate effort to produce the witness at trial even if the defendant had a prior opportunity to cross-examine.

The Crawford decision may generate a full fledged examination of the proposition that some prospect of mental or emotional harm to a child complainant caused by facing the defendant in court is a constitutionally sufficient reason to withhold the child as a witness. As discussed infra, in the text accompanying notes 34 to 44, the Supreme Court in Maryland v. Craig, 497 U.S. 836 (1990) (5-4) did find the threat of moderate harm to a child witness sufficient to permit testimony by closed circuit television. See text accompanying notes 43 to 48 for a discussion of the continuing validity of Craig. In Idaho v. Wright, 497 U.S. 805, 815-16 (1990), the Court had the opportunity to address the unavailability requirement where the hearsay had been admitted in a child sexual abuse prosecution under the non-firmly rooted "catch-all" exception. Instead, it detoured around the issue by assuming "unavailability" without addressing it as a constitutional requirement (in a case where a child was withheld as a witness at trial because she was "incapable of communicating with the jury"), and reversing on the ground that the hearsay did not have the required "particularized guarantees of trustworthiness." Id. at 814. The closest thing to a considered evaluation of the issue in Florida is found in Seaman v. State, 608 So. 2d 71, 73-74 (Fla. 3d D.C.A.). The decision upholding the constitutionality of FLA. STAT. [section] 90.803(23) (2004) (the "child victim" hearsay exception), Perez v. State, 536 So. 2d 206 (Fla. 1988), involved hearsay from a child complainant who did not testify because of a finding of a "substantial likelihood of severe emotional or mental harm," but there is no discussion of constitutional sufficiency of that standard.

(8) Crawford, 124 S.Ct. at 1374.

(9) Id.

(10) Roberts, 448 U.S. 56, 63.

(11) Id. at 66. "Firmly rooted" exceptions recognized by the Court after Roberts were the co-conspirator admission exception, Bourjaily v. US., 483 U.S. 171, 182 (1987), the excited utterance exception, White v. Illinois, 502 U.S. 346,351 n.1, 356 n.8, and the statement for purposes of medical diagnosis or treatment exception, White, 502 U.S. at 351 n.1, 356 n. 8. Before Roberts, the Court had recognized that dying declarations were firmly rooted in evidence law, Mattox v. U.S., 146 U.S. 140, 151 (1895), and there was obiter dictum in Roberts that business records might also be in that category. 448 U.S. at 66 n.8.

(12) Roberts, 448 U.S. at 66; see also Idaho v. Wright, 497 U.S. 805, 820 (1990) (holding that in determining whether the required particularized guarantees of trustworthiness existed, courts were to consider only the circumstances surrounding the making of the hearsay assertions themselves and not other evidence in the case corroborating the accuracy of the hearsay assertion).

In the special case of the hearsay exception for "former testimony," the prosecution also had to show the unavailability of the declarant. The unavailability requirement was advanced in Ohio v. Roberts as generally applicable to all hearsay but was later eliminated as a requirement if the hearsay exception was "firmly rooted." U.S. v. Inadi, 475 U.S. 387 (1986); White v. Illinois, 502 U.S. 346 (1992).

(13) See Crawford, 124 S.Ct. at 1371.

(14) Id. at 1370.

(15) Id. at 1370. The treason trial of Sir Walter Raleigh in 1603, who was convicted partly on the ex parte accusations of Lord Cobham and over the unavailing pleas of Raleigh to produce him, was the centerpiece of this history but by no means the only significant contributor.

(16) Id. at 1364-65 (Citations and footnote omitted.).

(17) See text accompanying note 9, supra.

(18) Plea allocutions were described as "plainly testimonial statements." Crawford, 124 S. Ct. at 1372.

(19) Grand jury testimony of a declarant who does not testify at trial is inadmissible under the Florida law of evidence. It is not "former testimony" because the defense had no opportunity to examine the witness at the grand jury stage. FLA. SWAT. [subsections] 90.803(22) and 90.804(2)(a). It has been admitted occasionally in federal court under the "catch-all" exception, but that provision is not currently in the Florida Evidence Code. See, e.g., U.S. v. Barlow, 693 F.2d 954, 961-63 (6th Cir. 1982), cert. denied, 461 U.S. 945 (1983); U.S. v. Earles, 113 F.3d 796, 800 (8th Cir. 1997) cert. denied, 522 U.S. 1075 (1998); U.S. v. Marchini, 797 F.2d 759, 764 (9th Cir. 1986), cert. denied, 479 U.S. 1085 (1987). It may also be admissible under the definitional exclusion from hearsay [section] 90.801(2), but a precondition of this section is that the declarant testify at trial and thus confrontation would be satisfied. Moore v. State, 452 So. 2d 559, 562 (Fla. 1984) ("We therefore hold that under [section] 90.801(2)(a), Florida Statutes (1981), the prior inconsistent statement of a witness at a criminal trial, if given under oath before a grand jury, is excluded from the definition of hearsay and may be admitted into evidence not only for impeachment purposes but also as substantive evidence on material issues of fact"), cited with approval in State v. Green, 667 So. 2d 756, 758 (Fla. 1995).

The admission of "former testimony" in Florida requires a prior opportunity to examine the declarant with the same or similar motive and a showing that the declarant is unavailable. These are the Crawford requirements. The showing of unavailability is required under [section] 90.804(2)(a) by its terms, and under [section] 90.803(22), not by the statute, but by decision of the Florida Supreme Court applying the pre-Crawford confrontation law. State v. Abreu, 837 So. 2d 400 (Fla. 2003).

Statements against penal interest made by accomplices under interrogation by police and offered by the state have been inadmissible in Florida as a practical matter for at least two decades. The few cases where such state-proffered evidence has been admitted involved situations that are almost certainly nontestimonial, i.e., statements made to friends associates, or co-conspirators and not to police interrogators. See Farina v. State, 679 So. 2d 1151 (Fla. 1996); Machado v. State, 787 So. 2d 112 (Fla. 4th D.C.A. 2001); Maugeri v. State, 460 So. 2d 975 (Fla. 3d D.C.A. 1984).

Finally, no Florida decision has been found holding that an incriminating statement of a nontestifying accomplice made in his plea allocution hearing is admissible as a statement against penal interest.

(20) See text accompanying notes 15 and 16, supra.

(21) "The text of the Confrontation Clause reflects this focus. It applies to 'witnesses' against the accused--in other words, those who 'bear testimony.' 1 N. Webster, An American Dictionary of the English Language (1828). 'Testimony,' in turn, is typically '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.' Id. An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Crawford, 124 S.Ct. at 1364.

(22) Affidavits and other documents prepared by and setting forth the assertions of state agents with the contemplation of later use in evidence would also seem to fall squarely within the concept of "testimonial statements. Reports generated by law enforcement with prosecution in mind are generally not admissible under the public records exception in many jurisdictions, including Florida, but Florida evidence law does admit affidavits stating the results of blood and breath tests if certain statutory requirements are met. See FLA. STAT. [section] 90.803(8) (2004); [section] 316.1934(5) (vehicles); [section] 327.354 (boats). See, e.g., Schofield v. State, 867 So. 2d 446, 447-48 (Fla. 3d D.C.A. 2004). The scheme places the burden on the defendant to subpoena the affiant in these cases. After Crawford, the safe prosecutorial practice is to call the operator as a witness. These affidavits look to be within the core concern of Crawford. See, e.g., People v. Rogers, 2004 WL 1405875 (N.Y. App. Div. 2004) (admitting blood alcohol content report as business record violated Crawford); City of Las Vegas v. Walsh, 91 P.3d 591, 594 (Nev. 2004) (admitting nurse's affidavit regarding blood withdrawal violated Crawford).

(23) This interpretive approach is supported by Justice Scalia's suggestion that one possible definition among others of "testimonial" statements would be 'extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,' White v. Illinois, 502 U.S. 346, 365 (1992) (Thomas, J., joined by Scalia, J., concurring in part and concurring in judgment)." Crawford, 124 S. Ct. at 1364. Notice that this statement makes no reference to the perceptions or expectations of the participants, but rather mentions only "formalized testimonial materials."

Two New York decisions suggest this method. See People v. Moscat, 2004 WL 615113 (N.Y. City Crim. Ct. 2004) ("A testimonial statement is produced when the government summons a citizen to be a witness; in a 911 call, it is the citizen who summons the government."); People v. Newland, 775 N.Y.S.2d 308, 309 (2004) ("We conclude that a brief informal remark to an officer conducting a field investigation, not made in response to 'structured police questioning' [citing Crawford] should not be considered testimonial, since it 'bears little resemblance to the civil-law abuses the Confrontation Clause targeted.") See also Fowler v. State, 809 N.E.2d 960, 964 (Ind. App. 2004); Hammon v. State, 809 N.E.2d 945,952 (Ind. App. 2004).

Two Florida decisions, published shortly before this article went to press, involved the application of Crawford to interactions arranged by police investigators where the defendant, either expressly or by silence, arguably adopted statements made to him by a co-perpetrator. It would seem that these events, arranged by the state with the obvious motivation of obtaining evidence, should be within Crawford's condemnation, but the issue is far from clear. In Florida, these adopted statements are admissible under the omissions "exception" to the hearsay rule. Section 90.803(18)(b). Under the Federal Rules of Evidence, admissions are "excluded" from the definition of hearsay. Federal Rule of Evidence 801(d). The federal approach is logically consistent with the idea that hearsay is excluded because of the lack of cross-examination of the declarant at the time the statement is made. If an admission is the statement of the defendant, either actually or by adoption, the inability of the defendant to cross-examine himself should raise no reliability concern on his part. Thus, no "exception" to the general rule of exclusion is necessary because the evidence is not hearsay. Consequently, although the scenarios constructed by police with the purpose of exposing one suspect to accusatory statements of another are exactly the type of context that could produce testimonial statements of a declarant, in this case the declarant, either expressly or by silence, is the declarant. A claim of constitutional denial of the right to be confronted by oneself seems dubious. The defendant's own affirmative statements made in such an arranged meeting would certainly be admissible. Compare US. v. Saget, 2004 WL 1682772 (2d Cir. 2004).

Consistent with this view, the court in Globe v. State, 2004 WL 524928 (Fla. 2004), while noting the almost contemporaneous decision of Crawford, reaffirmed its prior view that adoptive admissions do not implicate the confrontation clause. On the other hand, in the slightly later decision of State v. Hernandez, 2004WL1354252 (Fla. 3d D.C.A. 2004) (not final), on a petition of certiorari by the state, the court refused to overturn a trial court's ruling excluding adoptive admissions of the defendant in a police-arranged phone conversation with a co-perpetrator. "As such, because the codefendant's statements are testimonial under Crawford, admission of those statements at trial would violate the Sixth Amendment Confrontation Clause because Hernandez had no opportunity to cross-examine the co-defendant." Id.

(24) Compare People v. Sisavath, 2004 WL 1172889 (Cal. App. 2004) (child statement testimonial); Snowden v. State, 846 A.2d 36, 47 (Md. App. 2004) (same); State v. Courtney, 682 N.W.2d 186, 196-97 (Minn. 2004) (same); and People v. Vigil, 2004 WL 1352647 (Colo. App. 2004) (not final) (same); with People v. Geno, 2004 WL 893947 (Mich. App. 2004) (child statement nontestimonial); and State v. Vaught, 682 N.W.2d 284-91 (Neb. 2004) (same).

(25) See, e.g., Doe v. Heck, 327 F.3d 492, 510 (7th Cir. 2003) (applying the Fourth Amendment to child welfare caseworkers where the specific focus of their activity was to gather information); Heartland Acad. Cmty. Church v. Waddle, No. 2:01CV00060 ERW, 2004 U.S. Dist. LEXIS 8465 (E.D. Me. May 11, 2004) (same); Estelle v. Smith, 451 U.S. 454, 467 (1981) (defendant had a right to a Miranda warning prior to pretrial psychiatric examination); Cates v. State, 776 S.W.2d 170 (defendant had a right to Miranda warning prior to interrogation by a caseworker whose "express purpose" was "discovering, and investigating allegations of child abuse, and turning her findings over to the proper authority responsible for the prosecution of the child abuse").

(26) The Crawford opinion contemplates the release of nontestimonial hearsay from confrontation clause scrutiny. "Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law, as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether." Crawford, 124 S. Ct. at 1374.

Arguably, however, the admission of nontestimonial hearsay would still be subject to constitutional scrutiny under the due process clause. The only significant legal effect of changing the constitutional heading from confrontation to due process would be in the case of non-firmly rooted hearsay. There, it would free the courts in their search for "particularized guarantees of trustworthiness" from the constraint of looking truly to the circumstances attending the making of the hearsay assertion itself and allow consideration of other corroborating evidence in the case tending to support the accuracy of the hearsay statement. See supra note 12.

The Florida Supreme Court may have already adopted this due process approach by holding the hearsay exception for elderly persons set forth in [section] 90.803(24) of the Florida Evidence Code unconstitutional, apparently without regard to whether the elderly declarant would or could testify as a witness. Conner v. State, 748 So. 2d 950 (Fla. 1999). The declarant in Conner died prior to trial and there was never an opportunity to cross-examine him. That fact, however, was not used by the court to limit its holding to only cases where the elderly declarant does not testify at trial. The court focused instead on the statute itself and its perceived inadequate procedure to guarantee the reliability of the hearsay, i.e., a due process type of objection. A standard confrontation analysis would have stated that because the declarant did not testify, and the hearsay exception was not "firmly rooted," the circumstances surrounding the making of the hearsay statement must have guaranteed its trustworthiness. The statute itself has confrontation significance, as opposed to due process significance, only to the extent that the exception was not "firmly rooted." See also State v. Hosty, 835 So. 2d 1202 (Fla. 4th D.C.A. 2003), citing Conner and taking a "facial analysis" approach to the "disabled adult" hearsay exception statute, and finding it facially unconstitutional, and State v. Brocca, 842 So.2d 291 (Fla.3d D.C.A. 2003). Judge Cope, in his dissent in State v. Brocca, recognized the above description of Conner but argued that the decision addressed only the particular hearsay in that case.

(27) Crawford, 124 S.Ct. at 1364. Seine support for this view is found in the Court's reference to White v. Illinois, which found no confrontation violation where the trial court admitted an accusation of a child complainant made to a police officer 45 minutes after the alleged abuse. The Court said, "Although our analysis in this case casts doubt on that holding, we need not definitively resolve whether it survives our decision today...." Id. at 1354. The Court referred again to White in footnote 8 and said that it was "arguably in tension" with its decision. Id. at 1368, n.8. Of course, if the hearsay in White in fact contained a testimonial statement, then the result would have been directly in conflict with Crawford, and White should have been overruled. Nonetheless, these comments do comprehend that the excited utterance made to the police officer in White might have been a "testimonial" statement and the Court certainly did not foreclose that result. It is also noteworthy that the Crawford opinion ignored a number of other hearsay statements in White, made by the child to persons other than the police.

Support might also be found in the Court's observation that the common law may have admitted "testimonial" dying declarations. Specifically, in footnote 6, the Court, while making its usual disclaimer that it need not decide the point, recognized the existence of a hearsay exception for dying declarations at the time of the framing and noted that "many dying declarations may not be testimonial," but that "there is authority for admitting even those that clearly are." The Court concluded, "If this exception must be accepted on historical grounds, it is sui generis." [Italics in original.] What is missing here, however, is any description of when dying declarations might be "testimonial." These might consist of hospital interviews of the injured party by police hours or days after the criminal event and motivated completely by the official desire to develop evidence, i.e., a type of statement included as "testimonial" by the limited interpretive approach suggested herein. If so limited, the discussion offers no support for expanding Crawford far beyond its facts. Indeed, these comments might argue strongly against an expansive interpretation of the "testimonial" concept. Because the common law did generally admit dying declarations, and none of them appear to have been made in the context of ex parte judicial proceedings or to the then nonexistent police conducting a post-crime interrogation, the framers almost certainly had no objection to statements provoked proximately by the commission of the crime, even if made by the declarant with the hope or expectation that their statements might later find their way into evidence

(28) Compare, e.g., Bell v. State, 2004 WL 1143964 (Go. 2004) (hearsay contained testimonial statement); with Cassidy v. State, 2004 WL 1114483 (Tex. App. 2004) (hearsay not testimonial); and People v. Compan, 2004 WL 1123526 (Colo. App. 2004) (same).

One can imagine, for instance, excited utterances subdivided into "really excited utterances" that are non-testimonial statements, standard "excited utterances" that could go either way, and "mildly excited utterances" that would be admissible under the hearsay exception but excluded because they contain "testimonial" statements.

(29) See supra note 27. In effect, the expansive approach seems to be the antithesis of the historical method used in Craw ford. It does fit comfortably within the "core values" type of generous interpretation of the constitutional text that produced the Roberts rules, however.

(30) The Crawford facts demonstrate one of the unique exceptions: had the prosecutor called the defendant's wife to the stand, it would have achieved nothing because the defendant had the power, which he exercised, to prevent her testimony. See supra note 2. There may be a few other situations as outlined in note 31, infra.

(31) In U.S. v. Owens, 484 U.S. 554, 557-61 (1988), the Court held that the opportunity to cross-examine the declarant at trial satisfies the constitutional guarantee. "It is sufficient that the defendant has the opportunity to bring out such matters as the witness' bias, his lack of care and attentiveness, his poor eyesight, and even (what is often a prime objective of cross-examination, see 3A J. Wigmore, Evidence [section] 995, pp. 931-32 (J. Chadbourn rev. 1970)) the very fact that he has a bad memory." Id. at 559. The Court expressly approved Justice Harlan's statement, concurring in California v. Green, 399 U.S. 149, 157-64 (1970), that a witness's inability to "recall either the underlying events that are the subject of an extra-judicial statement or previous testimony or recollect the circumstances under which the statement was given, does not have Sixth Amendment consequence." See Cooley v. State, 2004 WL 1175155 (Md. App. 2004), applying this doctrine post-Craw ford to find confrontation satisfied where the witness testified completely contrary to his hearsay assertion. See also People v. Candelaria, 2004 WL 135257 (Colo. App. 2004) (not final); State v. German, 2004 WL 1636535 (Me. 2004).

It may be that the presence at trial of a witness, whose failure of memory is both dishonest and so complete that cross-examination is futile, does not provide confrontation. There is considerable agreement among lower courts that "a feigned lack of recollection regarding the facts contained in a prior statement constitutes inconsistent testimony." Commonwealth v. Sineiro, 740 N.E.2d 602 (Mass. 2000); see also US. v. Knox, 124 F.3d 1360 (10th Cir. 1997) ("A well-settled body of case law holds that where a declarant's memory loss is contrived it will be taken as inconsistent with a prior statement for purposes of applying Rule 801(d)(1)(A)"). Prior to Owens, some courts held that a witness who feigns memory is effectively refusing to testify and is, therefore, unavailable for confrontation purposes. US. v. Fiore, 443 F.2d 112 (1971); State v. Lomax, 608 P.2d 959, 967 (Kan. 1980); see also U.S. v. Barbati, 284 F. Supp. 409 (D.C.N.Y. 1968) (noting in an opinion by Judge Weinstein that "[i]f a witness attempted to fobb off defense counsel's cross-examination by claiming that his memory had failed and if that claim were suspect, the court could ... treat the failure of memory as equivalent to a refusal to testify on the ground of privilege."). Though few cases after Owens squarely address the issue of feigned memory loss, the trend among lower courts appears to be that the confrontation right is satisfied so long as the witness is physically available for cross-examination. US. ex tel. Trejo v. Schomig, No. 02 C 4387, 2003 U.S. Dist. LEXIS 2657 (N.D. Ill. Feb. 24, 2003) (witness' "memory lapse, feigned or real" did not render her unavailable for confrontation purposes); State v. Quintero, 823 P.2d 981, 985 (Ore. App. 1991) (holding that there was no confrontation right violation even "if witness' claim of memory loss was insincere"); see also U.S. v. Milton, 8 F.3d 39, 47 (D.C. Cir. 1993) (holding that there was no confrontation clause violation where witness claimed not to remember either his prior statement nor the event it described); Vaska v. State, 74 P.3d 225,228-29 (Alaska Ct. App. 2003) (holding that there was no confrontation violation where witness "could not shed any light on whether the incident about which the statement was made occurred, whether she made the statement, or the circumstances under which she made the statement").

(32) FLA. SWAT. [section] 92.54 (2004).

(33) FLA. SWAT. [section] 92.53 (2004):

(34) Craig, 497 U.S. at 855.

(35) Myles v. State, 602 So. 2d 1278, 1281(Fla. 1992):

The Craig requirements are not precisely the same as those provided in the child-witness statute. The statute, for example, requires a substantial likelihood of at least moderate emotional or mental harm [FN4] if the child is required to testify in open court, FLA. SWAT. [section] 92.54(1) (1991), but does not specify that the harm must be caused by the presence of the defendant. Florida courts thus cannot be entirely assured that the federal requirements are met merely by following the statutory standard, and vice versa. To be valid, the trial court's inquiry, findings, and order thus must comply with all the requirements of Craig and the statute. Fn.4. Moderate harm would satisfy the "more than de minimis" requirement of Craig.

(36) Hopkins v. State, 632 So. 2d 1372, 1376 (Fla. 1994).

(37) Once invoked, the statutory procedure employed by Florida courts under FLA. SWAT. [section] 92.54 is, in all relevant aspects, virtually identical to the one approved by the Court in Maryland v. Craig. Compare FLA. SWAT. [section] 92.54 (2004) with MARYLAND CIS. & JUD. PROC. CODE ANN. [section] 9-102. Most significantly, Florida's statute provides that "[t]he defendant's right to assistance of counsel, which includes the right to immediate and direct communication with counsel conducting cross-examination, must be protected and, upon the defendant's request, such communication shall be provided by any appropriate electronic method." FLA. SWAT. [section] 92.54(4); cf Craig, 497 U.S. 836, 841-42 (noting that, under Maryland's closed circuit procedure, the "child witness is ... examined and cross-examined in the separate room, while ... [t]he defendant remains in electronic communication with defense counsel....").

Although it was without occasion to hold that FLA. SWAT. [section] 92.54 was constitutional under Craig, the Florida Supreme Court in Hopkins v. State seemed to indicate that it would so hold if faced with the issue: 632 So. 2d 1372, 1375 (Fla. 1994) (citations omitted) (finding that the trial court failed to make the requisite findings under [section] 92.54).

In Glendenning v. State, 536 So. 2d 212, 217 (1988), the Florida Supreme Court expressly held that [section] 90.53 did not violate either the federal or Florida right to confrontation.

(38) Craig, 497 U.S. 836, 848.

(39) Id. at 861.

(40) When one measures the group of justices in the majority of seven, including Justices Ginsberg, Souter, Stevens, Kennedy (who was in the majority in Craig), and Breyer, against the historical method of Justice Scalia's opinion, the cautionary thought occurs that any extension of Craw ford to significantly different settings might produce surprising fragmentation of the majority. On the other hand, two years ago the Court did refuse to approve an amendment to Federal Rule of Criminal Procedure 26(b) that would have allowed televised testimony in criminal trials upon a showing, inter alia, of exceptional circumstances. See Amendments to Rule 26(b), 207 F.R.D. 93 (2002) (separate statement of Justice Scalia).

(41) FLA. R. CRIM. P. 3.190(j)(1) requires the applicant to submit affidavits or a verified motion containing evidence from "credible persons 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's testimony is material, and that it is necessary to take the deposition to prevent a failure of justice" (emphasis added). See Lima v. State, 732 So. 2d 1173, 1174-75 (Fla. 3d D.C.A. 1999), holding that a witness's pain and discomfort from a motorcycle accident and later multiple surgeries was sufficient to satisfy the rule. The use of this procedure in cases of child sex abuse is uncertain. Under the current wording of the rule, the "severe mental or emotional harm" upon which the prosecutor would seek to withhold the child as a witness at trial would have to be construed to be within the phrase "may be unable to attend ... a trial." Further, Rule 3.190(j)(6) allows admission of the deposition testimony at trial, a condition that would almost certainly have to be satisfied if the deposition is to constitutionally substitute for confrontation at trial, only "when the attendance of the witness can [not] be procured" (emphasis added).

(42) FLA. R. CRIM. P. 3.220(b)(1)(A) (i).

(43) FLA. R. CRIM. P. 3.220(h)(7) (2004).

(44) See State v. Clark, 614 So. 2d 453 (Fla. 1992).

(45) State v. Green, 667 So. 2d 756 (Fla. 1995); Rodriguez a State, 609 So. 2d 493 (Fla.1992); Hernandez v. State, 608 So. 2d 918 (Fla. 3d D.C.A. 1992).

(46) But see Blanton v. State, 2004 WL 1359821 (Fla. 5th D.C.A. 2004) (not final), stating that, notwithstanding the problems described in the text, the taking of a discovery deposition of a child complainant of sexual battery satisfied the opportunity for cross-examination requirement of Crawford. Police had seized various photographs and videotapes depicting the defendant and the child complainant in sexual acts. The child "made a statement to a police investigator, recorded on audiotape, wherein she stated that the photographs and video all depicted her, that [defendant] was also depicted in several of them, and that it was [defendant's] voice on the audio portion of the video." The child did not testify at trial and the trial court admitted under [section] 90.803(23) her statement authenticating the photos and videos. On appeal, the state conceded that the child's statement was testimonial, and the defendant did not argue that the complainant was not "constitutionally" unavailable. Thus, the only issue was whether the defendant had the required pre-trial opportunity to cross-examine the complainant. The court ruled that the defense discovery deposition of the child was sufficient to satisfy the requirement, but also held that any error in admitting the child's statement was harmless.

But see People v. Fry, 92 P.3d 970, 976 (Colo. 2004) (holding inadequate defendant's opportunity to examine declarant at an adversary preliminary hearing where only issue was probable cause and state law provided proceeding should not be a "mini-trial" on guilt or innocence).

(47) In Blanton v. State, 2004 WL 1359821 (Fla. 5th D.C.A. 2004) (not final), the court suggested that the unexercised opportunity to take a deposition to perpetuate testimony would provide the defendant with the constitutionally required opportunity to cross-examine the declarant: Appellant argues that the deposition in this case could not be used as substantive evidence at trial because appellant did not depose the victim under FLA. R. CRIM. P. 3.190(j), which pertains to perpetuated testimony. We fail to see how this argument has merit. Appellant clearly had the "opportunity" to depose the victim under this rule but made no such attempt.

(48) 448 U.S. 56, 70 (1980).

(49) Id. See also Commonwealth v. Sena, 809 N.E.2d.505, 514-15 (Mass. 2004) ("That the earlier cross-examination [at the first trial] did not cover every detail and every possible avenue of impeachment that counsel would now like to pursue does not change the fact that the defendant had the requisite opportunity for cross-examination.")

(50) Crawford, 124 S. Ct. at 1367.

(51) Id.

(52) Id. at 1374.

John F. Yetter is the Roberts Professor of Criminal Law at the Florida State University College of Law. He is a former chair of the Criminal Law Section and the Florida Criminal Procedure Rules Committee, and is a member of the Code and Rules of Evidence Committee.